This License Agreement is made on [DATE] between: (1) Saxo Bank

LICENSE AGREEMENT
This License Agreement is made on [DATE] between:
(1)
Saxo Bank A/S, Philip Heymans Allé 15, DK-2900 Hellerup, Denmark (Company No: 15731249)
(hereafter “Saxo Bank”);
and
(2)
[ ], (COMPANY’S ADDRESS) (Company No. XXXXX) (hereafter “Licensee”)
WHEREAS:
(A)
Saxo Bank is a fully licensed and regulated European bank and a leading facilitator in the
global capital markets, aggregating liquidity, offering access to exchanges and providing its
suite of products and platforms to institutions, private clients, banks and brokerages around
the world.
(B)
Saxo Bank has developed an online trading system which enables its clients to enter into
transactions with Saxo Bank for the purchase or sale of Securities, currency, commodities or
other assets and into derivative and other financial instrument transactions.
(C)
The Licensee wishes to use a trading facility via Microsoft Dynamics NAV® in order to give
Licensee the possibility of trading FX-spot using Saxo Bank's online Saxo ERPTrader™, and
accordingly the parties have agreed to enter into this Agreement.
(D)
The Licensee’s trading on the Saxo ERPTrader™ is subject to onboarding pursuant to Saxo
Bank’s prevailing onboarding requirements and subsequent approval as amended form time
to time.
(E)
This Agreement and Saxo Bank’s general business terms as amended from time to time
documents the relationship between the Parties and thus sets out the agreed terms and
conditions upon which Licensee will engage in the above-mentioned business relationship
and the terms and conditions for all services provided but the extent not covered by
Partner’s responsibilities.
License Agreement (August, 2013)
Page 1
TABLE OF CONTENTS
1
Definitions – Interpretation of Terms ............................................................................................3
2
Product ...........................................................................................................................................5
3
Fees, commissions and other charges ...........................................................................................6
4
Grant of license and proprietary rights ..........................................................................................6
5
Assignment.....................................................................................................................................7
6
Limitation of Liability......................................................................................................................8
7
Errors and Defects ..........................................................................................................................8
8
Special market conditions and force majeure ...............................................................................9
9
Confidentiality ..............................................................................................................................10
10
Termination ..................................................................................................................................10
11
Miscellaneous ..............................................................................................................................11
12
Governing law and choice of jurisdiction .....................................................................................12
License Agreement (August, 2013)
Page 2
IT IS HEREBY AGREED as follows:
1
1.1
Definitions – Interpretation of Terms
In this Agreement, unless the context otherwise requires, the following words shall
have the following meanings:
1.1.1
“Agreement“ shall mean this Agreement, including any schedule attached hereto, and
any later amendment or supplement hereto made between the Parties;
1.1.2
“Event of Default” shall mean any of the following events occurring in relation to
Licensee or Saxo Bank, as the case may be:
(a) Licensee’s failure to make any payment or delivery to Saxo Bank;
(b) any breach of this Agreement by a Party which, if capable of remedy, has not
been remedied within 10 (ten) Business Days of the other Party notifying the
Party in breach in writing of the breach and requesting that it be remedied;
(c) the occurrence of an event or circumstance which Saxo Bank reasonably
considers has, will have or is likely to have, a detrimental effect on this
Agreement or Licensee’s ability to perform any of its obligations under any
Contract or this Agreement;
(d) an Act of Insolvency; and
(e) any admission that a Party is unable to or does not intend to perform any of
its obligations under this Agreement.
1.1.3
“Intellectual Property Rights” shall mean copyrights, (including rights in computer
software), patents, trademarks, trade names, service marks, business names
(including internet domain names), design rights, database rights, semi-conductor
topography rights, rights in undisclosed or confidential information (such as knowhow, trade secrets and inventions (whether patentable or not)), and all other
intellectual property or similar proprietary rights of whatever nature (whether
registered or not and including applications to register or rights to apply for
registration) which may now or in the future subsist anywhere in the world;
1.1.4
“Licensee” shall mean a user who has signed up for the Saxo ERPTrader™.
License Agreement (August, 2013)
Page 3
1.1.5
“Partner” shall mean the authorized distributor of Saxo Bank from whom the
Licensee has purchased the End User License Agreement.
1.1.6
“Party” shall mean each of Saxo Bank and Licensee and “Parties” shall be construed
accordingly;
1.1.7
“Saxo ERPTrader™” shall mean a branded version of Saxo Bank’s proprietary trading
platform.
1.1.8
“Software” shall mean the software of Saxo Bank, to which the Licensee has acquired
a license- and update agreement.
1.1.9
“Trade” shall mean placing an order for buy or sell of a financial product offered on
the Saxo ERPTrader™;
1.1.10
“Trading Platform” shall mean Saxo Bank’s proprietary trading platforms made
available to Licensee; and
1.1.11
"Website" shall mean Saxo Bank's website www.saxobank.com as it may be replaced
or substituted or amended from time to time.
1.2
In the event of any conflict between this Agreement and any Schedule thereof, the
terms of the Schedule shall prevail to the extent relevant to the subject matter of that
Schedule.
1.3
References to the singular shall include the plural and vice versa, and references to a
person shall include an individual, firm, company, corporation, unincorporated body
of persons and any government entity and shall include any successors in title,
permitted assignees and permitted transferees.
1.4
Headings are for ease of reference only and shall not affect the interpretation of this
Agreement. References to clauses and schedules are to clauses and schedules of this
Agreement. References to this Agreement or any other document are to that
document as from time to time amended, restated or replaced.
1.5
References to any statute or statutory provision include any subordinate legislation
made under it and include any provision amending it or re-enacting it.
1.6
The words “other”, “including”, “in particular” and “such as” shall not limit the
generality of any preceding words or be construed as being limited to the same class
as the preceding words where a wider interpretation is possible.
License Agreement (August, 2013)
Page 4
2
2.1
Product
Saxo ERPTrader™
2.1.1
The Licensee will be onboarded via Saxo Bank’s standard onboarding flow in order to
trade and use with a limited license the Saxo ERPTrader™ trading facilities.
2.1.2
Licensee’s trading on the Saxo ERPTrader™ will be governed by Saxo Bank’s prevailing
general business terms, as amended from time to time, as set out on the website
www.saxobank.com.
2.2
Updates
2.2.1
Saxo Bank will update the Saxo ERPTrader™ when Saxo Bank’s trading platform is
continuously updated and enhanced to secure competitiveness, robustness and
security in so far as such updates are, in its opinion, relevant to the Saxo ERPTrader™
and the transactions entered into.
2.2.2
This Agreement includes delivery of updates to the Software; however the Agreement
does not cover update of standard software components delivered from third parties,
which are incorporated in the Software delivered by Saxo Bank. Saxo Bank’s update
service puts the updates at the disposal of the Licensee through Saxo Bank’s Partner.
This agreement does not cover update of custom fit adjustments of, or modifications
to the Software, notwithstanding such adjustments or modifications may be made
and/or developed by Saxo Bank.
2.2.3
Updates will, if requested by the Licensee, be implemented under assistance of the
Partner.
2.2.4
The Licensee acknowledges that use of an updated may require acquisition of extra
licenses and/or consulting services from the Partner or third party.
2.2.5
The Licensee is responsible for installation of updates and must pay for the expenses
related thereto. During installation of the updates the Licensee must follow the
included documentation, instructions and guidelines from Saxo Bank.
2.2.6
The Licensee alone is responsible for backup of all stored data and configuration
before any update of the Software.
2.2.7
In accordance with this Agreement the Licensee will be granted access to update
services as described. The service is delivered at the choice of Saxo Bank either by
License Agreement (August, 2013)
Page 5
giving the Licensee online access to download an update or by delivery of an
electronic media.
2.2.8
The Licensee acknowledges that updates to the Software may not work with the
Licensee’s hardware, add-on, third party software or custom fit adjustments or
modifications.
2.2.9
The use of updates is the sole responsibility of the Licensee, and Saxo Bank can under
no circumstances be held liable for any problems or inexpediency that updates may
cause.
3
Fees, commissions and other charges
The Licensee will pay Saxo Bank’s standard fees as set out on the website
www.saxobank.com for its Trades.
4
Grant of license and proprietary rights
4.1
Saxo Bank grants to Licensee a personal, perpetual, non-exclusive and non-assignable
license to fulfill Licensee’s business purposes under the terms of this Agreement.
4.2
Licensee may not use the Saxo ERPTrader™ for any purpose other than that set out in
clause 4.1 or expressly agreed in writing between the Parties, nor shall Licensee
permit any third party to use the Saxo ERPTrader™ nor use the Saxo ERPTrader™ on
behalf of or for the benefit of any third party in any way whatsoever (including using
the Saxo ERPTrader™ for the purpose of operating a bureau service, facilities
management service, outsourcing service, or any other unauthorised arrangement).
4.3
The Software is a standard product. It shall be the sole responsibility of the Licensee
to ensure that the functions in the Software fulfill the requirements and expectations
of Licensee.
4.4
The Licensee’s right of use to the Software requires that the Licensee has duly entered
into a contact with one of Saxo Bank’s Partners for acquisition of license right to the
Software and number of users in use by the Licensee and furthermore, that such
license has been duly paid for.
4.5
All Intellectual Property Rights belonging to a Party prior to the signing of this
Agreement will remain vested in that Party.
License Agreement (August, 2013)
Page 6
4.6
Saxo Bank remains the sole owner of any of its data, information or files that Licensee
may have access to in accordance with this Agreement.
4.7
The Saxo ERPTrader™ and any related Intellectual Property Rights remains the
exclusive property of Saxo Bank or its licensors at all times. Furthermore, Licensee
does not obtain access to the source code of the Saxo ERPTrader™.
4.8
Licensee agrees that it shall not at any time do or (so far as it is reasonably able) allow
any act or thing which prejudices, or is likely to prejudice, Saxo Bank’s Intellectual
Property Right in the Saxo ERPTrader™ pursuant to this Agreement, or acquire, or
attempt to acquire, or claim any title to interest in the Saxo ERPTrader™ or any service
conducted by Saxo Bank or any other of Saxo Bank’s proprietary rights.
4.9
Licensee will not disassemble, decompile, reverse translate or in any other manner
decode the Saxo ERPTrader™.
4.10
Licensee shall use reasonable endeavours to prevent any violation of Saxo Bank’s
proprietary rights in the Saxo ERPTrader™ and shall promptly report to Saxo Bank any
such violation that comes to its attention. In particular, Licensee shall:
4.10.1
implement suitable disciplinary procedures for employees who make unauthorised
use of the Saxo ERPTrader™; and
4.10.2
not permit third parties to have access to the Saxo ERPTrader™ without the prior
written consent of Saxo Bank.
5
Assignment
5.1
The Licensee shall have no right to sell, rent out, lend, lease, sublicense, transfer or
otherwise assign rights and obligations given under this Agreement. Assignment also
includes transfer or adoption in connection with a merger, demerger, outsourcing and
similar events or activities within and outside the group of companies to which the
Licensee belongs.
5.2
If the Licensee assigns the Software, including any documentation, in conflict with the
provisions above, Saxo Bank may terminate this Agreement with immediate effect, as
described in section 10.
License Agreement (August, 2013)
Page 7
6
Limitation of Liability
6.1
Licensee uses the Saxo ERPTrader™ at its own risk and Saxo Bank is not liable for any
use of the trading platform. The trading platform and its content are provided "as is"
and Saxo Bank does not represent the functionality or suitability of the trading
platform for Licensee, or that it will be uninterrupted or error free. All conditions,
warranties, covenants, representations and undertakings which might be implied,
whether statutory or otherwise, in respect of Saxo Bank’s obligations hereunder are
excluded to the maximum extent permitted by law. Licensee acknowledges and
accepts that any information on the trading platform may be inaccurate, incomplete
and/or not up to date.
6.2
Saxo Bank shall not in any circumstance be liable for any indirect or consequential
loss, including any loss of profits, loss of goodwill or loss of business opportunity.
6.3
Saxo Bank shall not be liable for, and gives no representation in connection with, the
performance or profitability of the Saxo ERPTrader™.
6.4
The Parties agree that the limitations on liability contained in this clause 5 have been
subject to commercial negotiation and are fair and reasonable having regard to the
circumstances which are, or ought reasonably to be, known or in the Parties’
contemplation at the date of this Agreement.
7
Errors and Defects
7.1
The Software delivered under this Agreement is a standard product, and the Licensee
is aware that no software product is faultless in all situations and combinations.
7.2
Saxo Bank shall not be liable for any defects. This Agreement includes neither
warranty against defects, nor any warranty of fitness or suitability for a particular
purpose.
7.3
Immediately of a reproducible error or defect is discovered or should be discovered
the Licensee must give notice to Saxo Bank’s Partner, with which the Licensee is
cooperating at the time of the notification. Upon notification the Licensee must
specify the error or defect.
7.4
Saxo Bank shall use its best endeavors to remedy errors and defects which are
reproducible in the standard database of Saxo Bank. Saxo Bank shall attempt to
remedy such errors or defects, which are of essential, significant importance for the
License Agreement (August, 2013)
Page 8
running of the Software. Saxo Bank will begin remedying an error or defect as soon as
possible after Saxo Bank has received notification of the error or defect from Saxo
Bank’s Partner.
7.5
The actual scope and procedure for remedy of any errors or defects is at the free and
independent discretion of Saxo Bank. Saxo Bank may remedy errors and defects by
releasing an update of the Software.
7.6
Saxo Bank will remedy non-essential errors and defects to the extent Saxo Bank finds
it necessary. Saxo Bank is entitled to postpone the remedy of non-essential errors or
defects to the next update of the Software.
8
Special market conditions and force majeure
8.1
Saxo Bank is entitled, in its reasonable professional opinion, to determine that an
emergency or exceptional market condition exists. Such conditions include the
suspension or closure of any market, the abandonment or failure of any event to
which Saxo Bank relates its quotes or the occurrence of an excessive movement in the
level of any trade and/or underlying market or Saxo Bank’s reasonable anticipation of
the occurrence of such a movement. In such cases, Saxo Bank shall be entitled to no
to provide its service according to this agreement.
8.2
Without prejudice to clause 8.1, if and to the extent that either Party is hindered or
prevented by circumstances not reasonably foreseeable and not within its reasonable
ability to control from performing any of its obligations under this Agreement and
promptly so notifies the other Party, giving full particulars of the circumstances in
question, then the Party so affected shall be relieved of liability to the other for failure
to perform such obligations, but shall nevertheless use its best endeavours to resume
full performance of such obligations without avoidable delay. Such events may include
any technical difficulties such as telecommunications or computer failures or
disruptions, non-availability of either Party’s website, failure of any exchange, clearing
house or settlement system, declared or imminent war, terrorism, civil unrest or
catastrophes of nature. If such an event has subsisted for a continuous period of 3
(three) months after notice thereof is given, and continues to subsist, the other Party
shall be entitled by giving 1 (one) week's written notice to terminate this Agreement
with termination taking effect upon the expiry of such notice. For the avoidance of
doubt, the lack of financial funds shall never be considered an unforeseeable and/or
uncontrollable excuse.
License Agreement (August, 2013)
Page 9
9
Confidentiality
9.1
Licensee accepts that Saxo Bank may within the limitations set out in applicable law
share information about Licensee with other entities within the Saxo Bank group for
the purpose of enabling such other entities to assist in providing the services offered
to Licensee under this Agreement. Such other entities shall be subject to equivalent
requirements for treating confidential client information as Saxo Bank.
9.2
Each Party shall observe the confidentiality of the other Party in connection with the
performance of its obligations under this Agreement including any information
relating to the business, investments, finances and customers of the other Party.
Neither Party shall, other than as set out in clause 9.1, disclose such information or
information about this Agreement to any person unless required to do so by any
applicable law or by any regulatory or supervisory authority or by any other person
entitled by law to require disclosure provided that, where permissible, it has first
notified the other Party in writing or it has obtained the other Party’s prior written
consent. The same obligations apply to all employees, sub-contractors and agents of
each Party and each Party shall use all reasonable endeavours to prevent any such
disclosure by any such person.
9.3
The obligations in clause 9.2 shall not apply to any information which has been
independently developed by the relevant Party or which is publicly available or which
falls into the public domain through no fault of the relevant Party or comes into the
relevant Party’s possession by other means. Further, clause 9.2 shall not apply to
information provided by Saxo Bank to a third party who has signed a non-disclosure
agreement with Saxo Bank according to which the third party undertakes a
confidentiality obligation similar to the obligation set out in 9.2.
10
Termination
10.1
This Agreement comes into effect on the date on which it is countersigned by
Licensee.
10.2
This Agreement shall terminate on (i) the date falling not less than 6 (six) months after
a termination notice has been given in writing by either Party to the other, or (ii) by
written agreement between the Parties.
10.3
On the occurrence of an Event of Default by either Party, the other Party may
terminate this Agreement with immediate effect
License Agreement (August, 2013)
Page 10
10.4
11
11.1
This clause 10 and clauses 4, 5, 6, 9 and 12 shall continue to apply after termination of
this Agreement until they cease to be relevant.
Miscellaneous
Amendment and assignment
11.1.1
Any provision of this Agreement may be supplemented or amended by written
agreement between the Parties.
11.1.2
Unless otherwise agreed, neither Party shall be entitled to assign any or all of its rights
or benefits under this Agreement.
11.2
11.2.1
No waiver
No delay or omission on the part of either of the Parties in exercising any right, power
or remedy provided by law or under this Agreement, or partial or defective exercise
thereof, shall:
(a) impair or prevent further or other exercise of such right, power or remedy; or
(b) operate as a waiver of such right, power or remedy.
11.2.2
11.3
No waiver of any breach of any term of this Agreement shall (unless expressly agreed
in writing by the waiving Party) be construed as a waiver of a future breach of the
same term or as authorising a continuation of the particular breach.
Illegality, invalidity and unenforceability
If any provision of this Agreement is found to be illegal, invalid or unenforceable
under any applicable law, such provision shall, insofar as it is severable from the
remaining provisions, be deemed omitted from this Agreement and shall in no way
affect the legality, validity or enforceability of the remaining provisions. The Parties
shall instead use best endeavours to promptly negotiate a legally valid replacement
provision which economic effect shall to the furthest extent possible mirror that of the
illegal, invalid or unenforceable provision.
License Agreement (August, 2013)
Page 11
11.4
Entire agreement
This Agreement constitutes the entire agreement between the Parties and supersedes
any prior agreement, understanding or arrangement between the Parties relating to
the subject matter of this Agreement.
11.5
Technical Support
Not withstanding clause 9 (Confidentiality) above, Saxo Bank may disclose relevant
information on Licensee to third parties for the purpose of enabling such third party
to provide technical support to Licensee.
11.6
Counterparts
This Agreement may be executed in any number of counterparts, each of which is an
original but such counterparts shall, together, constitute one instrument.
12
Governing law and choice of jurisdiction
12.1
This Agreement and any non-contractual obligations arising in connection with it shall
be governed by and interpreted in accordance with the laws of Denmark.
12.2
The Parties agree that the courts of Denmark have exclusive jurisdiction to settle any
dispute which may arise in connection with the creation, validity, effect,
interpretation or performance of, or the legal relationships established by this
Agreement or otherwise arising in connection with this Agreement.
License Agreement (August, 2013)
Page 12
IN WITNESS WHEREOF the Parties have executed this Agreement on the respective dates
specified below with effect from the date specified on the first page of this Agreement
Date:..................................
Date:..................................
Saxo Bank A/S
Company Name
______________________________
______________________________
Name.............................................
Name.............................................
Title................................................
Title................................................
______________________________
______________________________
Name.............................................
Name.............................................
Title................................................
Title................................................
License Agreement (August, 2013)
Page 13