﻿Lightstreamer SLA 202601E 

LIGHTSTREAMER SOFTWARE LICENSE AGREEMENT


Please read this Lightstreamer software license agreement (the “Agreement”) carefully before downloading and installing the Software. By downloading and/or installing the Software, whether directly or through a third party, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions of this Agreement. If you do not agree to this Agreement, do not download or install the Software. Instead, return it to Lightstreamer S.r.l. or destroy any copies in your possession.
Notwithstanding that this Agreement will be deemed accepted and binding as described above, the parties may wish to print and sign two (2) copies of this Agreement and send one (1) signed copy to the address indicated below.


1.        Use License. 
1.1        Grant. Subject to Licensee’s acceptance of all terms and conditions of this Agreement and, where applicable, Licensor’s receipt of the contractually agreed fees, Lightstreamer S.r.l. (“Licensor”) grants you ("Licensee") a non-exclusive, perpetual or time-limited (as applicable) license to use the Software and the Documentation described in Sections 1.2 through 1.4.
1.2        Software. “Software” means the Lightstreamer programs, including any upgrades, fixes, and patches (collectively, “Lightstreamer” or the “Software”), which are the exclusive property of Licensor. The server component (the “Lightstreamer Server”) may be provided either as a standalone product or embedded into a derived product (for example, MQTT.Cool and JMS Extender). Unless expressly stated otherwise, all licensing provisions in this Agreement apply to the Lightstreamer Server, whether provided directly or embedded in a derived product. Likewise, references to Lightstreamer license types (for example, “Lightstreamer Community Edition License”) apply also where a derived product is licensed under the corresponding license type (for example, “MQTT.Cool Community Edition License”).
1.3        Documentation. “Documentation” means all documentation relating to the Software, including user manuals, explanatory notes, and materials useful for installation and operation, provided by Licensor to Licensee in any format (paper or electronic) as of the effective date of this Agreement.
1.4        Scope of Use. The Software and the Documentation may be used solely in accordance with the quantities, limits, durations, and other restrictions agreed by the parties and set forth in the applicable Offer Letter or Purchase Order, and for which the corresponding fees have been paid. Such restrictions may include, without limitation, the permitted number of computers/instances, users, sessions, applicable time limitations, and any restrictions on editions, features, or configurations. For Free Licenses, as described in Section 1.11.1, an Offer Letter and/or Purchase Order may not be issued. In such case, the applicable limitations, restrictions, and obligations are those set forth in Section 1.11.1 and, where applicable, in the Software itself.
1.5        Non-transferability. This license is non-exclusive and non-transferable, and may not be sublicensed, except in connection with an assignment permitted upon a change of control.
1.6        Client Libraries Redistribution. Licensee may redistribute the Lightstreamer Client Libraries, either as part of Licensee’s applications or as standalone libraries.
1.7        Support and Maintenance. Assistance, maintenance, and updates for the Software are not included in this Agreement, except as expressly provided herein, and may be governed by a separate agreement between the parties.
1.8        Licensing Mechanisms. Three (3) licensing mechanisms are available:
1.8.1 "Cloud License Manager". Each instance of the Lightstreamer Server periodically connects to a cloud-based license manager operated by Licensor (the “Cloud License Manager” or “CLM”), which may authorize or deny, at any time, the execution of the Lightstreamer Server process. Each Lightstreamer Server instance provides to CLM the information required to identify the applicable License, the Audit Log (where required by the License type), the number of CPU cores, and the peak number of Lightstreamer Sessions (for statistical purposes). Licensee shall ensure that the HTTPS endpoints of CLM, as specified by Licensor, are reachable by the Lightstreamer Server instances via the public Internet. Each Lightstreamer Server instance must be able to connect to CLM at startup to obtain authorization and must thereafter connect at least once every forty-five (45) minutes to continue operating; otherwise, the Lightstreamer Server process will be automatically terminated. Licensee shall keep the assigned contract ID and password confidential and shall not disclose them to any person except those who need them for the operation of the Software.
1.8.2 "License File". For each License, Licensor provides Licensee with a license file to be installed on the Lightstreamer Server (the “License File”). Each License File binds the License to the machine on which the Lightstreamer Server is installed by including the MAC address of one of that machine’s network interfaces.
1.8.3 "No License Validation". The Lightstreamer Server performs no license validation and may be executed without connecting to CLM and without a License File.
1.9        "Audit Log". For certain License types (as specified in Section 1.11), during the License validity period, Licensee shall periodically provide Licensor with the audit log files for each installed instance of the Lightstreamer Server. Such audit log files record, for each ten (10)-minute interval of server operation, the average number of concurrently active Lightstreamer Sessions, where a “Lightstreamer Session” means a logical communication channel established between the Lightstreamer Server and a single instance of a client application to exchange real-time traffic (including data delivery and related control messages). Licensee shall deliver the audit log files to Licensor using the methods made available by Licensor, including the automatic upload mechanisms described in Sections 1.8.1 and 1.13, and shall continue to do so until Licensee notifies Licensor in writing that the relevant instance has been permanently decommissioned. Licensee shall ensure that the clocks of the machines hosting the Lightstreamer Server are synchronized within a maximum deviation of sixty (60) seconds, while respecting the local time zone of each machine. Licensee shall ensure that the audit log files for each Lightstreamer Server instance are regularly collected, retained, and not altered.
1.10          License Duration. A License may have one of the following durations:
1.10.1 "Perpetual". A Perpetual License has no expiration and may be used indefinitely, unless the Agreement is terminated pursuant to Article 6.
1.10.2 "Time Limited". A Time Limited License expires at the end of the period for which it was purchased. Upon expiration, the Software will automatically cease to operate. Any attempt to use a Time Limited License after its expiration is expressly prohibited.
1.11          License Types. Licenses may be selected from the following types:
1.11.1 "Free Licenses":
(i) Lightstreamer Community Edition License. This License may be used in production. Only one (1) instance of the Lightstreamer Server may be used per application. Accordingly, clustering, load balancing, failover, and hot standby are expressly prohibited. For any service or product that uses Lightstreamer, the integrator shall clearly and prominently state that all copyrights related to Lightstreamer are the sole and exclusive property of Lightstreamer S.r.l. One (1) License is required for each Lightstreamer Server process instance. The Lightstreamer Community Edition License has the following characteristics:
- Allowed maximum number of different client libraries: one (1)
- License Duration: Perpetual.
- Licensing Mechanism: No License Validation.
- Audit Log: Not required.
        (ii) Lightstreamer Demo License. This License may be used solely to evaluate Lightstreamer, develop and test applications, and demonstrate a prototype of Licensee’s application. Any other use requires the appropriate production entitlements. Licensor may audit Licensee’s use of the Lightstreamer Demo License. One (1) License is required for each Lightstreamer Server process instance. The Lightstreamer Demo License has the following limitations and characteristics:
- Allowed maximum number of concurrent Lightstreamer Sessions: twenty (20).
- Allowed maximum number of concurrent Lightstreamer MPN Devices: twenty (20).
- License Duration: Perpetual.
- Licensing Mechanism: No License Validation.
- Audit Log: Not required.
        (iii) Lightstreamer Evaluation License. This License may be used solely to evaluate Lightstreamer, without the Session limitation applicable to the Lightstreamer Demo License, and for no other purpose. Any other use requires the appropriate production entitlements. One (1) Evaluation License permits installation of the Lightstreamer Server on a reasonable number of machines, in any location. The Lightstreamer Evaluation License has the following characteristics:
- License Duration: Time Limited.
- Licensing Mechanism: Cloud License Manager.
- Audit Log: Required.
        (iv) Lightstreamer Non-Production Limited License. This License may be installed and used only to support Licensee’s use of a Production License. It provides the same features and duration as the corresponding Production License, but may be deployed solely as part of Licensee’s internal development and test environments for internal non-production activities, including (without limitation) testing, performance tuning, fault diagnosis, internal benchmarking, staging, quality assurance, and software development using published application programming interfaces. Any other use requires the appropriate production entitlements. Licensor may audit Licensee’s use of the Lightstreamer Non-Production Limited License. One (1) License is required for each Lightstreamer Server process instance. The Lightstreamer Non-Production Limited License has the following limitations and characteristics:
- Each execution of the Lightstreamer Server process is limited to three and a half (3.5) hours. Upon reaching such limit, the process terminates and must be restarted.
- License Duration: Perpetual or Time Limited.
- Licensing Mechanism: Cloud License Manager or License File.
- Audit Log: Not required.
1.11.2 "Paid Licenses":
        (v) Lightstreamer Production Per Client License. The Lightstreamer Production Per Client License can be used in production. One license allows the installation of Lightstreamer Server on an arbitrary number of machines located anywhere, within reason. The Lightstreamer Production Per Client License defines the contracted level of concurrent Lightstreamer Sessions that may be active at any time across the installed Lightstreamer Servers ("Allowed Sessions"). For each ten (10)-minute interval, the average number of concurrently active Lightstreamer Sessions is calculated for each Lightstreamer Server instance, and those averages are then summed across all instances to produce a single time series. Every six (6) months, starting from the commencement of the Agreement term, the ninety-ninth (99th) percentile is computed from the time series covering the immediately preceding six (6) months. The resulting value is deemed the maximum number of concurrently utilized Lightstreamer Sessions for that period ("Utilized Sessions"). If Utilized Sessions exceeds Allowed Sessions, Licensor will invoice Licensee for the applicable price difference between Utilized Sessions and Allowed Sessions, calculated using the rates set forth in the applicable Offer Letter or Purchase Order. Unless otherwise agreed between the parties in writing, the invoiced difference will be addressed through a Time Limited license with a six (6)-month duration. The Lightstreamer Production Per Client License has the following characteristics:
- License Duration: Perpetual or Time Limited.
- Licensing Mechanism: Cloud License Manager or License File.
- Audit Log: Required at least every six (6) months, starting from the Effective Date of this Agreement, and in any event no later than fifteen (15) days after the end of each six (6)-month period.
(vi) Lightstreamer Production Per Server License. This License may be used in production. One (1) License is required for each Lightstreamer Server process instance. The Lightstreamer Production Per Server License has the following characteristics:
- License Duration: Perpetual or Time Limited.
- Licensing Mechanism:  Cloud License Manager or License File.
- Audit Log: Not required.
        (vii) Lightstreamer Production Per Client-Hour License. This License may be used in production. One (1) License permits installation of the Lightstreamer Server on a reasonable number of machines, in any location. For each hour of server operation, the average number of concurrently active Lightstreamer Sessions is calculated. The hourly averages are then summed across all Lightstreamer Server instances and across all hours within a calendar month to determine the total number of Client-Hours consumed in that month. At the end of each month, Licensor will invoice Licensee for the Client-Hours consumed, applying the Client-Hour rates set forth in the applicable Offer Letter or Purchase Order. The Lightstreamer Production Per Client-Hour License has the following characteristics:
- License Duration: Time Limited.
- Licensing Mechanism: Cloud License Manager.
- Audit Log: Required(automatically transmitted to the Cloud License Manager).
        (viii) Lightstreamer Production Per Core-Hour License. This License may be used in production. One (1) License permits installation of the Lightstreamer Server on a reasonable number of machines, in any location. For each hour of server operation, the total number of CPU cores visible to the Lightstreamer Server process, as returned by the Java call Runtime.getRuntime().availableProcessors(), is determined. The hourly core counts are then summed across all Lightstreamer Server instances and across all hours within a calendar month to determine the total number of Core-Hours consumed in that month. At the end of each month, Licensor will invoice Licensee for the Core-Hours consumed, applying the Core-Hour rate set forth in the applicable Offer Letter or Purchase Order. The Lightstreamer Production Per Core-Hour License has the following characteristics:
- License Duration: Time Limited.
- Licensing Mechanism: Cloud License Manager.
- Audit Log: Not required.
        (ix) Lightstreamer Hot Standby Per Server License. This License may be used solely to deploy a mirror standby server in conjunction with a valid Lightstreamer Production Per Server License. It may be used only for disaster recovery purposes and not for balancing client connections or serving as additional production capacity. The Lightstreamer Hot Standby Per Server License has the same features and duration as the corresponding Lightstreamer Production Per Server License. It has the following characteristics:
- License Duration: Perpetual or Time Limited.
- Licensing Mechanism: Cloud License Manager or License File.
- Audit Log: Not required.
        (x) Lightstreamer Hot Standby Per Core-Hour License. This License may be used solely to deploy a mirror standby server in conjunction with a valid Lightstreamer Production Per Core-Hour License. It may be used only for disaster recovery purposes and not for balancing client connections or serving as additional production capacity. The Lightstreamer Hot Standby Per Core-Hour License has the same features and duration as the corresponding Lightstreamer Production Per Core-Hour License. One (1) License permits installation of the Lightstreamer Server on a reasonable number of machines, in any location. For each hour of server operation, the total number of CPU cores visible to the Lightstreamer Server process, as returned by the Java call Runtime.getRuntime().availableProcessors(), is determined. The hourly core counts are then summed across all Lightstreamer Server instances and across all hours within a calendar month to determine the total number of Core-Hours consumed in that month. At the end of each month, Licensor will invoice Licensee for the Core-Hours consumed, applying the Core-Hour rate set forth in the applicable Offer Letter or Purchase Order. The Lightstreamer Hot Standby Per Core-Hour License has the following characteristics:
- License Duration: Time Limited.
- Licensing Mechanism: Cloud License Manager.
- Audit Log: Not required.
        (xi) Lightstreamer Non-Production Full License. This License may be deployed solely as part of Licensee’s internal development and test environments for internal non-production activities, including (without limitation) testing, performance tuning, fault diagnosis, internal benchmarking, staging, quality assurance, and software development using published application programming interfaces. Any other use requires the appropriate production entitlements. Licensor may audit Licensee’s use of the Lightstreamer Non-Production Full License. One (1) License is required for each Lightstreamer Server process instance. The Lightstreamer Non-Production Full License has the following characteristics:
- License Duration: Perpetual or Time Limited.
- Licensing Mechanism: Cloud License Manager or License File.
- Audit Log: Not required.
(xii) Lightstreamer Startup License. Licensor may, at its sole discretion, grant a Lightstreamer Startup License to selected startup companies. One (1) License permits installation of the Lightstreamer Server on a reasonable number of machines, in any location. Upon Licensor’s request, Licensee shall reasonably cooperate in the preparation, writing, and publication of one or more success stories and/or technical articles and/or blog posts describing Licensee’s use of Lightstreamer. Licensee shall also use reasonable efforts to notify Licensor in advance of product development announcements (for example, the launch of new services) and of material company growth or funding news, to allow Licensor to publicize the success of the parties’ cooperation. Licensor shall not publish any non-public information provided by Licensee without Licensee’s prior authorization. The Lightstreamer Startup License has the following characteristics:
- License Duration: Time Limited.
- Licensing Mechanism: Cloud License Manager.
- Audit Log: Required.
1.12         Software Update Checks. The Lightstreamer Server may periodically connect to Licensor’s servers via the Internet to check for the availability of software updates. When such connection occurs, Licensee is notified through the Lightstreamer Server log file. Licensee may disable this mechanism.
1.13 Automatic Audit Log Upload. Where required by the applicable License Type, the Lightstreamer Server may periodically connect to Licensor’s servers via the Internet to upload the Audit Log files referenced in Section 1.9. Licensee may disable this mechanism. If Licensee relies on this mechanism to deliver Audit Log files to Licensor, Licensee shall ensure that the automatic upload is properly configured and operating correctly.
1.14 Invoicing and Temporary Licenses. Upon receipt of the executed Offer Letter and/or Purchase Order, Licensor shall issue an invoice for the agreed amount corresponding to the Licenses set forth in the applicable Offer Letter or Purchase Order. Licensor may, at its discretion, provide temporary licenses (the “Temporary License”) until the invoice has been paid in full by Licensee (or by a Reseller, where the sale is made through a channel partner). Following full settlement of the invoice, Licensor shall provide the applicable Perpetual or Time Limited License, as set forth in the Offer Letter or Purchase Order. The Temporary License shall remain valid until payment is completed and, in any event, no longer than thirty (30) days after the invoice due date. If the invoice is not paid in full by such date, the Temporary License shall expire and Licensor may suspend any related service and/or any Temporary License until payment has been fully regularized. In such circumstances, Licensee shall have no claim against Licensor arising from the suspension, expiration, or termination of the Temporary License.
1.15 No Personal Data. Neither the Audit Log nor the automatic communication mechanisms described in Sections 1.8.1, 1.12, and 1.13 are intended to make available to Licensor any personal data of Licensee’s users or customers. Accordingly, with respect to such personal data, Licensor is neither a data controller nor a data processor.


2.        Consented Uses and Restrictions.
2.1        The Software and the Documentation are the exclusive property of Licensor and are protected, as are all of the connected and related rights, by Copyright and applicable Intellectual Property laws.
2.2 The Software and all of the Documentation given by Licensor to Licensee are to be considered reserved and confidential and must not be disclosed for any reason, in any form, even after termination of this Agreement. If this Agreement is terminated in accordance with the terms of this Agreement, except as provided by law, none of the materials and Documentation can be kept and used in any manner and must be destroyed.
2.3        Licensee agrees to use the Software respecting all of the applicable laws in the jurisdiction where the Software will be used, and complying with all laws in force in such jurisdiction, including but not limited to those related to Copyright and Intellectual Property rights.
2.4        For the duration of the License, Licensee can copy the Software and the Documentation only for backup purposes. Except as provided for by contract or by law, Licensee shall not make any other copies of the Software and the Documentation. 
2.5        Licensee cannot decode, decompile, disassemble or modify the Software, or create derivations based on the Software other than as permitted by law. Licensee shall not make known any program benchmark test without the prior consent of Licensor. 
2.6        By the present Agreement, Licensor gives in license solely and exclusively to Licensee the right to use the Software and the Documentation. No other right, including those related to trademarks, names, logos, or anything else recognizable as a distinctive sign, present in the Software or in the Documentation, is given in license by Licensor to Licensee.
2.7 The parties hereby agree and accept that Art. 2 and all the provisions included therein shall apply, to the fullest extent, also to the Temporary License. 


3.        Trademarks and Logos.
3.1        Licensee accepts and recognizes that Licensor is the sole and exclusive owner of the Lightstreamer trademark and logos related to it. 
3.2        Licensee has no right in relation to the use of the Lightstreamer distinctive signs, and Licensee cannot remove such Lightstreamer distinctive signs, modify them or use them autonomously.


4.        LIMITED WARRANTIES; DISCLAIMER.
4.1 Licensor warrants that:
4.1.1 it shall fulfill its obligations under this Agreement with all due skill, care and diligence including but not limited to Good Industry Practice, (without limiting the generality of this clause) in accordance with its own established internal procedures and in compliance with all applicable Laws;
4.1.2 its title to and property in the Software and Documentation is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this Agreement;
4.1.3 the Software does not contain any harmful code (such as "trojan horses", "worms", or "viruses") and any back door not declared in this Agreement;
4.1.4 it is not aware of any right belonging to a third party that would result in the Software, Documentation, or any other product or service rendered by Licensor to Licensee as violating any possible third party rights, including Copyrights, Patents, Trademarks or any other right.
4.2 On Paid Licenses only (License Types (v), (vi), (vii), (viii), (ix), (x), (xi), and (xii) defined in Section 1.11.2), the following applies:
4.2.1 For a period of 90 days from the start date of the license (hereinafter referred to as "Warranty Period"), the Software will perform in accordance with the Documentation.
4.2.2 During the Warranty Period, Licensee must inform Licensor in writing if the Software does not operate as warranted and provide to Licensor such information and material as Licensor may reasonably request to document and reproduce such problem and to verify that any proposed solution corrects the problem. This warranty shall not apply to any bug, problem or defect to the extent resulting from any of the following: (i) any equipment, materials, products or software not provided by Licensor; (ii) Licensor’s compliance with designs, plans or specifications provided by Licensee to Licensor; (iii) any unauthorized repair, adjustment, modification or alteration to the Software by Licensee or any third party; (iv) any refusal by Licensee to install or to use a remedy, update, or replacement version of the Software offered by Licensor to Licensee; (v) any use of the Software not in accordance with the Documentation; (vi) any neglect, accident or misuse of the Software, or (vii) any malfunction that is not attributable to the Software. 
4.2.3 Exclusive Remedies. If there is a breach by Licensor of the warranty set forth in Section 4.2 during the Warranty Period, Licensee’s exclusive remedy and Licensor’s sole obligation shall be to: (i) modify the Documentation to accurately reflect the actual operation of the Software if there is merely a transcription error in the Documentation; (ii) modify the Software to conform to the Documentation unless the Documentation is in error; or (iii) provide a like-for-like workaround solution which shall meet Licensee’s reasonable requirements. If none of the foregoing is determined by Licensor in its sole and absolute discretion to be commercially feasible, Licensor shall have the right to refund the Software licensee fees paid by Licensee under this Agreement and to terminate this Agreement with no further liability to Licensee. In any event, Licensor shall not be held responsible for any damages, direct or indirect, of any type, that may be suffered by Licensee or third parties.
4.2.4 To the fullest extent provided by law, and save as set out above, Licensor assumes no responsibility and offers and recognized no guarantee, of any kind or nature, whether direct or indirect, explicit or implicit, for the Software, Documentation or any other product or service provided by Licensor to Licensee, including but not limited to, guarantees related to the quality, saleability, accuracy, peaceful possession, and fitness for a particular purpose of the Software or of the Documentation.
4.2.5 Save as set out in Sections 5.2 and 5.5 below, Licensor agrees to indemnify and handle at its own expense, for any claim or action against Licensee, its affiliates and its and their respective directors, officers, employees, agents and representatives (each, an "Indemnified Party") for actual or alleged infringement of any intellectual or industrial property right, including without limitation, trademarks, service marks, patents, copyrights, misappropriation of trade secrets or any similar property rights, based upon the Software, any portion thereof and/or Licensee’s use thereof.  Licensor further agrees to indemnify and hold each Indemnified Party harmless from and against any and all liabilities, costs, losses, damages, and expenses (including reasonable attorney’s fees) associated with such claim or action. 
Licensee shall promptly notify Licensor of any such claim or action (provided that any delay shall only reduce Licensor’s obligations hereunder in the event and to the extent that such delay actually prejudices Licensor). Licensee shall reasonably cooperate with Licensor in the defense of such claim or action at Licensor’s expense.
Licensor shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise.  Notwithstanding the foregoing, in the event that Licensor shall fail to appoint an attorney within ten (10) calendar days after Licensee has notified Licensor of any such claim, Licensee shall have the right to select and appoint an alternative attorney and the reasonable cost and expense thereof shall be paid by Licensor.
If the Software becomes or in Licensor’s reasonable opinion is likely to become the subject of any such claim or action, then Licensor shall either: 
        (a) procure for Licensee the right to continue using the Software as contemplated hereunder;
        (b) modify the Software to render same non-infringing (provided such modification does not adversely affect Licensee’s use as reasonably determined by Licensee); or
        (c) replace the same with an equally suitable, functionally equivalent, compatible non-infringing Software Program.
Notwithstanding and in addition to the foregoing, Licensee may at its option and expense select and be represented by separate counsel. 
4.2.6 Licensor shall have no liability to Licensee in respect of any breach of Licensee’s obligations under this Agreement.
4.2.7 Save as set out above, Licensor neither claims nor guarantees that the functions contained in the Software will satisfy the requests, expectations, or needs of Licensee and possible third parties or that the functioning of the Software is continual, and without errors and defects.
4.2.8 Save as set out above, Licensor makes no guarantees regarding the use or any results deriving from the use of the Software and Documentation with respect to their correctness, accuracy, trustworthiness, or in any other way.
4.2.9 The Software and Documentation are granted under license and supplied by Licensor and accepted by Licensee, who has evaluated their appropriateness for his needs, as is. Save as set out above, Licensee assumes every risk and responsibility with respect to the choice, installation, and use of the Software and Documentation and their results.
4.2.10 Save as set out above, Licensor has no obligations or responsibilities and makes no guarantees, aside from those expressly and specifically assumed or made in this contract.
4.2.11 To the fullest extent provided by law, all the provisions contained in Art. 4, and especially Sections 4.2.4,  4.2.7 and 4.2.8, shall fully apply to Temporary License.
4.3 On Free Licenses only (License Types (i), (ii), (iii), and (iv) defined in Section 1.11.1), the following applies:
4.3.1 The Software and Documentation are licensed "AS IS". Licensor disclaims any and all warranties, whether express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose. Licensor does not warrant the functions contained in the Software will meet any requirement or needs Licensee may have, or that the Software will operate error-free, or in an uninterrupted fashion, or that the Software is compatible with any particular platform. Licensor makes no guarantees regarding the use or any results deriving from the use of the Software and Documentation with respect to their correctness, accuracy, trustworthiness, or in any other way.
4.3.2 Licensee shall immediately inform Licensor of any claim or action made against Licensee by a third party that the normal and correct operation possession or use of the Software or Documentation by Licensee infringes the patent, copyright, registered design or trademark rights of any third party.
4.3.3 Licensee shall cooperate in and collaborate with Licensor in the defense of any claim or action made against Licensee, Licensor, or about Software or Documentation.
4.3.4 In any case, Licensor will neither indemnify nor hold harmless Licensee on demand against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action about infringement of patent, copyright, registered design or trademark rights of any third party.
4.3.5 Licensor shall have no liability to Licensee in respect of any breach of Licensee’s obligations under this Agreement.
4.3.6 Licensee assumes every risk and responsibility with respect to the choice, installation, and use of the Software and Documentation and their results.


5.        Limitation of Responsibility. 
5.1        Save as set out above, neither party is responsible for, and is expressly relieved from liability for, any damages suffered by the other, those direct, indirect, incidental, consequential, of any kind or nature, arising out of or related to this Agreement, the Software and/or Documentation.
5.2        Save as set out above, including Licensor's indemnifications obligation, Licensee recognizes and accepts that Licensor is not in any way responsible for any use of the Software and/or the Documentation by Licensee and/or for the consequences of such use, including but not limited to, if such use results in obtaining materials that violate the rights of third parties, is imprecise, obscene, indecent, threatening, offensive, defamatory, illicit, illegal or otherwise.
5.3        Licensee recognizes and accepts that Licensor is not responsible for possible malfunctions provoked by the Software or resulting from possible incompatibility between the Software and/or Documentation and hardware and for other possible delays or problems of functionality.
5.4        Where the applicable law does not allow for the applicability of the exclusions and limitations of responsibility contained in the present Art. 4 and Art. 5, in no event (other than for its indemnification obligations in Art. 4) the limit of responsibility and compensation of either party hereto (except in connection with Sections 4.2.1 and 4.2.4 above) in any way, for any and all damage, loss and for any other cause, shall not exceed, in total, the amount paid as Software license fees.
5.5        However, the limitations above shall not exclude or limit Licensee’s liability for fraud or for death or personal injury arising from the negligence of Licensee, its employees, agents or sub-contractors, or from Licensee’s indemnification obligations provided in the license with respect to the Software.


6.        Termination of the Agreement.
6.1         In the event of breach by Licensee of any of the undertakings or obligations set forth in this Agreement, Licensee has thirty (30) calendar days following notification in writing by Licensor to arrange an acceptable remedy and notify Licensor. If Licensee fails to do so, Licensor will have the right to immediately terminate the present Agreement; upon the simple declaration given in writing to Licensee to avail himself of this article. However, the right of Licensor to take action necessary to obtain compensation for the damages possibly suffered shall remain.
6.2        Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination. In any case, the possible termination of the Agreement will not result in the obligation of restitution of any amounts already paid and will not produce effects regarding the services already performed, nor will it eliminate the right of Licensor to receive other possible payments still due.
6.3        At the termination of the Agreement (in the event that this Agreement terminates as set forth herein) or at the end of the contract term, or at the expiration of a Time-Limited License, Licensee shall cease any and all use of the Software and Documentation and destroy the Software and Documentation, except as provided by law.


7.        Source Code Escrow
7.1        Escrow Agreement. Only if previously agreed by the parties, concurrent with the execution of this Agreement, the parties will execute a third-party escrow Agreement in a form on which they shall agree (the "Escrow Agreement"), in conjunction with an escrow agent that they shall both approve (the "Escrow Agent").
7.2        Deposit. Upon execution of the Escrow Agreement, Licensor will deposit with the Escrow Agent, pursuant to the procedures of the Escrow Agreement, the source code for the Software and Documentation, and the list of tools needed to create the binary version. Licensor will deposit any updated source code and Documentation with the Escrow Agent ("Deposit Material" refers to material required to be deposited pursuant to this Section 7.1).
7.3        License and Use. Contingent upon the accrual of Release Conditions, Licensor hereby grants Licensee a license to use, reproduce, and create derivative works from the Deposit Material, Licensee may not distribute or sublicense the Deposit Material or make any use of it whatsoever except for such internal use as is necessary to maintain and support the Software. Copies of the Deposit Material created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy of the Deposit Material itself. The Deposit Material constitutes Confidential Information of Licensor pursuant to Section 7.1 hereof. Licensee may not exceed the number of production licenses, neither use different license typology, neither different features than the number of production licenses, typology, and features owned.
7.4        Release Conditions.  The Escrow Agent shall release the Deposit Material to Licensee solely under any of the following conditions (each a "Release Condition"): (i) appointment, or consent to a receiver, trustee or another custodian for Licensor or substantially all of its assets, or application for same if such application is not lifted within 14 days; (ii) Licensor makes an assignment for the benefit of creditors; (iii) Licensor is liquidated or dissolved, or any proceedings are commenced with regard to Licensor under any bankruptcy, insolvency, or debtor’s relief law which are not lifted within 14 days from commencement; (iv) any failure by Licensor to function as a going concern.
7.5        Costs. All costs of the escrow, including, for the avoidance of doubt, the fees of the Escrow Agent, shall be borne and paid directly by Licensee.
7.6        Duration. The Escrow Agreement will commence on the date of the deposit to the Escrow Agent and will automatically terminate when all acquired Time-Limited licenses expire and all acquired Perpetual licenses are no more covered by maintenance service.
7.7 As set out above, this article and all the provisions contained therein will only apply in case Licensee had chosen the "Source Code Escrow" option. In this case, all the conditions between the parties will be regulated separately in the Escrow Agreement which, therefore - in case of contrast between the following and the Escrow Agreement – will prevail. 


8.        Applicable Law and Competent Forum.
8.1          THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF ENGLAND WITHOUT REGARD FOR ITS CONFLICT OF LAW PROVISIONS.  
8.2        Without prejudice to section 8.3 below, all disputes arising out of or in connection with the Agreement shall be finally settled in arbitration under the Rules of Arbitration of the International Chamber of Commerce (ICC), by 3 (Three) arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Milan (Italy). The language of the arbitration shall be English. Any Party shall have the right to have recourse to and shall be bound by the pre-arbitral referee procedure of the International Chamber of Commerce (ICC) in accordance with its Rules for a Pre-Arbitral Referee Procedure.
8.3        Alternatively, Licensor shall be entitled, at its exclusive choice, to submit any dispute arising out of or in connection with the Agreement to the Court of Milan (Italy).


9. Miscellaneous.
9.1        The possible nullity of one or more of the clauses of this Agreement will not invalidate the other clauses in the Agreement. The possible nullity of one or more of the clauses of the Agreement will not result in the invalidity of the Agreement as a whole. In any case, the contracting parties undertake, in good faith, to use their reasonable efforts in order to remedy the nullity of the single clauses and to substitute the invalid parts with valid ones of equivalent or similar content.
9.2        This Agreement substitutes any and all past negotiations, obligations, and agreements such that all of the conduct of obligations assumed by the parties will be regulated by the present Agreement.
9.3        Any modification or integration of the contents of this Agreement must be agreed upon in writing and signed by the legal representatives of the parties.
9.4        With regard to the personal data of each party that may be processed during the performance of this Agreement, the other party undertakes to process said data in full compliance with the provisions of Regulation EU 2016/ 679 (“GDPR”) on the processing of personal data as well as exclusively for the purposes connected to the performance of this Agreement.
9.5        Licensor reserves the right to access and/or make known information regarding Licensee, including the contents of communications, in order to comply with the law or respond to a lawsuit; enforce the fulfillment of the present contract by Licensee (including protecting its rights in the Software, Documentation or anything else deriving from and/or related to the present contract).
9.6        All communications, statement and/or other announcements made on the base or as foreseen by the Agreement shall be sent to Licensor at:


Lightstreamer S.r.l.
Via Panfilo Castaldi, 11
20124 Milan
Italy


Tel. +39 02 8128 4003
E-mail: contracts@lightstreamer.com


Any changes to the addresses or numbers above will be reported on the www.lightstreamer.com site.


IN WITNESS WHEREOF the parties hereto have executed this Agreement in duplicate originals by their duly authorized officers or representatives.
