Leping - Tervise- ja heaolu infosüsteemide keskus

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LEPING NR 1-167/19 Kuupäev digikonteineris AS Helmes, registrikood 10364097, Lõõtsa tn 6, 11415 Tallinn , mida esindab volikirja alusel Ove Muuk (edaspidi nimetatud “ Teenuse osutaja ”), j a Tervise ja Heaolu Infosüsteemide Keskus , registrikood 70009770, aadress Uus-Tatari 25, Tallinn , mida esindab keskuse põhimääruse alusel direktor Katrin Reinhold, (edaspidi nimetatud “ Klient ”), eraldi nimetatud ka „ Pool ” ning koos „ Pooled ”, sõlmisid hankemenetluse tulemusena käesoleva lepingu (edaspidi nimetatud „ Leping ”) alljärgnevas: Lepingu ese, sisu ja maht Lepingu esemeks on Software AG toodetud Webmethods tarkvara litsentside ost ja tootjahooldusteenuse „Standart Support“ vahendamine Kliendi poolt kasutatavale Software AG tarkvarale (edaspidi „Tarkvara”). Litsentside nimetused ja arv ning hooldusperioodi algus ja lõpp ning tasu suurus on toodud Lepingu Lisas 1 . Käesoleva lepinguga tellib Klient Lisas 1 loetletud litsentsid ning Teenuse osutaja tagab nende litsentside väljastamise tootja poolt. Kõigil tarnitud Lepingu esemetel peavad olema tagatud kasutusõigused. Kõik tarnitud komponendid peavad olema tootja poolt registreeritud Kliendi nimele. Tarnekoht on Uus-Tatari 25, Tallinn . Kliendil on õigus litsentse kasutada Eesti tervise infosüsteemis ning selle komponentides. Litsentsiandjaks on tootja Software AG, tootja standardsed litsentsitingimused on Lepingu Lisaks 2 Software AG, „ Software License and Maintenance Terms and Conditions “ . Pooled on kokku leppinud, et punk tis 1.5 viidatud standardsete litsentsitingimuste punkti 3.2 kohaldatakse käesoleva lepingu jaoks järgnevas sõnastuses: “ 3.2. Maintenance Renewal: Maintenance and support services under this Agreement for Software licensed under any Software Attachments are provided for a fixed term until 31.12.2019 and can be renewed on an annual basis”. Teenuse osutaja kinnitab, et on sellekohase muudatuse kooskõlastanud tootjaga. Litsentsitugi sisaldab : Tootja tugiteenust, mille sisuks on tellija konsulteerimine tarkvara kasutamise küsimustes; Õ igust ja kasutajakontosid Software AG kasutajapöördumiste portaali, läbi mille saab tellija esitada küsimusi/probleeme otse Software AG-le; Software AG Knowledge Center ligipääsu; Software AG t ootjahooldusteenuse sisu on täpsemalt kirjeldatud Lisas 3 tootja standardsetes toeteenuse tingimustes “Software AG Standard Maintenance and Support Service ” . Teenuste osutamise ja vahendamise kord Litsentsidega seotud t eenuste saamiseks pöördub Kliendi kontaktisik Teenuse osutaja poole kas telefoni teel üldnumbril +372 610 61000; kontaktisiku numbril +372 5024151 või e-posti teel üldaadressil [email protected]; kontaktisiku aadressil [email protected]. Jooksvate toeteenustega seotud küsimustes võib Kliendi kontaktisik pöörduda otse tootja klienditoe poole läbi Software AG kasutajapöördumiste portaali või telefonitoe saamiseks Software AG regionaalsel toetelefonil +49 6151 4933108 . Hind ja maksetingimused Lepingu maksumus on 145037,14 (ükssada nelikümmend viis tuhat kolmkümmend seitse ja 14/100) eurot, millele lisandub käibemaks. Lepingu kogumaksumus jaguneb järgnevalt: Litsentsitasud 120864,28 eurot , millele lisandub käibemaks. T oe teenuste tasu 24172,86 eurot, millele lisandub käibemaks. Arve esitatakse peale Lepingu sõlmimist. Maksetähtaeg on 3 0 kalendripäeva arve kättesaamisest. Viivis rahalise kohustuse täitmisega viivitamise eest on 0,05 % päevas iga täitmisega viivitatud päeva eest. Kliendi kontaktisikud Kliendi kontaktisikuks on: Nimi: Lauri Treima E-post: [email protected] Telefon: +372 7943 943 T eenuse osutaja kontaktisikuks on: Nimi: Ove Muuk E-post: [email protected] Telefon: +372 610 61000 Kumbki pool on kohustatud teist poolt kontaktisikute muutumisest viivitamata informeerima. Konfidentsiaalsuskohustus Pool peab hoidma saladuses talle Lepingu täitmisega teatavaks saanud asjaolusid, mille saladuses hoidmiseks on teisel Poolel õigustatud huvi või mille saladuses hoidmist teine Pool on nõudnud. Saladuse hoidmise kohustust ei ole, kui Poolel on asjaolude avalikustamiseks teise Poole kirjalik luba või kui ta on avalikustamiseks kohustatud seadusest tulenevalt. Käesoleva Lepingu täitmisega seotud info on kõik vaikimisi mitteavalikustatav. Konfidentsiaalsuskohustus kehtib kogu Lepingu kehtivusaja jooksul ning kehtib ka 5 aastat pärast lepingu lõppemist või lõpetamist. Lepingu täitmise üldised põhimõtted Teenuse osutaja kinnitab, et on Lepingus sätestatud Lepingu eseme volitatud edasimüüja Eestis . Omandiõiguse ülemineku hetk Lepingu esemeks olevate litsentside suhtes on litsentside Kliendile kasutamiseks võimaldamise hetk. Teenuse osutaja on kohustatud tagama Lepingu eseme tarnimise vastavalt Lepingule ning kooskõlas Teenuse osutajale kui ametialasele professionaalile esitatud asjakohaste nõuete ja hea tavaga ning vastutama Lepingu täitmise eest moel, mis ei riiva kolmandate osapoolte õigusi, sh intellektuaalomandi õigusi. Kliendil on õigus igal ajal kontrollida Lepingu eseme vastavust Lepingule ning Teenuse osutaja kinnitusele ning nõuda Teenuse osutajalt informatsiooni Lepingu täitmise kohta, sh esindusõigust tõendavate dokumentide esitamist. Lepingu täitmisel kasutatav keel on eesti keel ja/või inglise keel. Lõppsätted Allkirjaga Lepingul kinnitab Klient, et on eelpoolnimetatud tingimustega tutvunud. Pooled hüvitavad teisele Poolele üksnes Lepingu rikkumisest tuleneva otsese varalise kahju. Lepingu pooled peavad Lepingut täitma heas usus, vastavuses heade kommetega ja hea tavaga. Lepingule kohaldub Eesti õigus. Vaidlused, mis tekivad Lepingu täitmise käigus, lahendatakse läbirääkimiste teel ja kokkuleppel. Kui pooled kokkulepet ei saavuta, lahendatakse vaidlus seaduses ettenähtud korras Harju Maakohtus. Leping on allkirjastatud digitaalselt. Teenuse osutaja: Klient: AS Helmes AS Lõõtsa 6, Tallinn 11415 Tel +372 610 6100 E-post: [email protected] Tervise ja Heaolu Infosüsteemide Keskus Uus-Tatari 25, Tallinn Tel: (Allkirjastatud digitaalselt) Ove Muuk (Allkirjastatud digitaalselt) Katrin Reinhold SOFTWARE LICENCE AND MAINTENANCE AGREEMENT SOFTWARE LICENCE AND MAINTENANCE TERMS AND CONDITIONS 1 LICENCE GRANT 1.1 Grant of Licence: Subject to the terms and conditions set forth in this Agreement and in exchange for payment of the licence fees, the Supplier grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to use the software products identified in any Software Attachment (hereinafter "Software") based on the licence parameters, terms and conditions set out herein and as further set forth in the Software Attachment or any amendment to this Agreement. In addition, the Customer may copy and use the end user manuals or associated documentation related to the Software and delivered to the Customer pursuant to the clause “Delivery” below (“Documentation”). Licences are granted on the basis of a single non-divisible licence for each of the Software separately listed on any Software Attachment and include the right to use new Software versions, which are provided to the Customer in connection with the maintenance of the Software (Clause 'Maintenance and Support Services' below). 1.2 Restrictions: Unless otherwise agreed in the Software Attachment, Customer shall not: (1) permit any outsourcer or other third party including any parent, subsidiary or affiliated entity to use the Software; (2) use the Software to process or cause or permit third parties to process the data of any other party; (3) extend the capacity to use the Software by means of virtualization (Sub-capacity/Partitioning) or otherwise; or (4) have the right to share a pool of configurable computing resources (e.g. networks, servers, storage, applications and services) through an on- demand network access (Cloud Enablement). For the purposes of this Agreement “Outsourcing” refers to the act of allowing a third party whose business is the maintenance and operation of other companies’ computers or business services (the “Outsourcer”) to operate or maintain the Customer’s computer systems on the Customer’s behalf. This may take place on the Customer’s premises and computers, also known as facilities management, or at the Outsourcer’s premises on the Outsourcer’s computers. 1.3 Delivery: The Software and Documentation shall be distributed electronically over the Internet through a password-protected web page or, if applicable, by CD/DVD or tape cartridge. In case of electronic delivery, Supplier will deliver a software activation password key and software download instructions to Customer via an e-mail message sent to Customer’s designated contact person. 1.4 Acceptance: Acceptance shall be deemed to have occurred upon shipment of the data carrier (F.O.B. Supplier’s distribution facility) to Customer, or upon delivery of the software activation key and download instructions, as applicable. In case of installation, consulting or education services provided by the Supplier or any third party in relation to the Software, the acceptance of the Software shall not be conditioned upon the conclusion of such services, nor shall the payment date(s) set forth herein be conditioned upon or modified for any reason based upon the actual date of conclusion of such services. 2 OWNERSHIP ©2015-2019 Software AG. All rights reserved. 1/9 2.1 Ownership: Customer acknowledges that the Software and its structure, underlying concepts, organization, architecture, and source code are the exclusive property of and constitute valuable trade secrets of Supplier and its suppliers. Customer agrees not to (1) disassemble, reverse engineer, or reverse compile the Software in whole or in part; (2) copy, modify, adapt, alter, translate, or create derivative works from the Software or (3) merge the Software with other software save to the extent expressly permitted by law. The Supplier expressly reserves all rights not granted under this Agreement. Customer acknowledges that Customer's failure to comply with the provisions of this Clause shall result in irreparable harm to Supplier for which a remedy at law would be inadequate, and therefore, in the event of the breach or threatened breach by Customer of its obligations under this Clause, Supplier shall be entitled to seek relief in the form of specific performance and/or an injunction for any such actual or threatened breach, in addition to the exercise of any other remedies at law. 3 MAINTENANCE AND SUPPORT SERVICES 3.1 Maintenance Terms and Conditions: In exchange for payment of the fees set forth in this Agreement, Supplier shall provide the maintenance and support services described in the applicable Maintenance and Support Service Description as published by the Supplier from time to time. 3.2 Maintenance Renewal: Maintenance and support services under this Agreement for Software licensed under any Software Attachments are provided for a fixed term of twelve (12) months and automatically renew on an annual basis unless terminated by either party on not less than three (3) months’ notice in writing given at any time prior to the relevant renewal date. If the agreement for the provision of maintenance and support services terminates or otherwise expires and the Customer subsequently wishes to renew maintenance and support services, Customer shall pay the support fees that would have been due for the period during which maintenance and support services were not provided plus a reinstatement fee in accordance with Supplier’s then current reinstatement policy. 3.3 Price Increase: Upon the first renewal of the Maintenance and Support Services, the Maintenance Fee shall (provided that the Software is then licensed on a like for like basis) be the Maintenance Fee indicated in the corresponding Software Attachment in respect of the period of 12 calendar months from the Licence Start Date increased by the percentage the Consumer Price Index of average monthly gross earnings of full-time employees in the branch of provision of IT services (Index J 62), as published by the German Federal Statistical Office, has increased compared to the prior year (or any successor index thereto). If the published percentage is 0% (or less) no adjustment shall be made. Subsequent renewals in the Maintenance and Support Services Fee shall be determined by the Supplier but increases shall not exceed 10% per annum. 4 PAYMENT 4.1 Payment: All payments shall be due and payable within thirty (30) days of the date of invoice. 4.2 Taxes: All payments under this Agreement shall be made without recoupment or set-off and are exclusive of taxes and duties. Customer agrees to bear and be responsible for the payment of all taxes and duties including, but not limited to, all sales, use, rental, receipt, personal property and other taxes (but excluding taxes based upon Supplier's income), which may be levied or ©2015-2019 Software AG. All rights reserved. 2/9 assessed in connection with this Agreement. 4.3 Interest: If any payment due under this Agreement is not paid in accordance with the terms of this Agreement, then interest shall be payable and recoverable as a debt on all outstanding amounts at the rate of 1½% per month (or part thereof), accruing daily from the date upon which the payment becomes due (both before and after judgment) together with all costs of collection including reasonable legal costs. 5 CONFIDENTIALITY 5.1 Confidential Information: The parties acknowledge that each party will have access to intellectual property or other confidential information of the other party or third parties in respect of which the disclosing party has a duty of confidentiality (“Confidential Information”). Both parties agree that Confidential Information disclosed is proprietary and shall remain the sole property of the disclosing party or such third party. 5.2 Confidentiality: Each Party agrees: (a) to use Confidential Information only for the purposes described herein; and (b) not to reproduce Confidential Information and to hold it in confidence and protect it from dissemination to, and use by, any third party; and (c) not to create any derivative work from Confidential Information; and (d) to restrict access to the Confidential Information to its personnel, agents, sub-contractors and/or consultants, who need to have access to such Confidential Information and who have been advised of and have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (e) to return or, at the disclosing party’s discretion, destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. 5.3 Exclusions: The restrictions shall not apply to Confidential Information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. 5.4 Compliance with law permitted: Each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body or applicable law, including to make such court filings as it may be required to do, provided that it gives reasonable notice of the demand to allow the other Party to seek a protective order or other appropriate remedy (unless is legally prohibited from doing so). 5.5 Relief: Customer acknowledges that Customer's failure to comply with the provisions of this Clause shall result in irreparable harm to Supplier for which a remedy at law would be inadequate, and therefore, in the event of the breach or threatened breach by Customer of its obligations under this Clause, Supplier shall be entitled to seek relief in the form of specific performance and/or an injunction for any such actual or threatened breach, in addition to the ©2015-2019 Software AG. All rights reserved. 3/9 exercise of any other remedies at law. 6 IPR INDEMNITY 6.1 Indemnity: Supplier shall indemnify, defend, and hold Customer harmless from any action brought by a third-party against Customer to the extent that it is caused by an allegation that the Software licensed under this Agreement has infringed an intellectual property right or trade secret registered in the country of Supplier´s residence, and pay those damages or costs related to the settlement of such action or finally awarded against Customer in such action, including but not limited to reasonable attorneys’ fees, provided that Customer: (a) promptly notifies Supplier of any such action; and (b) gives Supplier full authority, information, and assistance to defend such claim; and (c) gives Supplier sole control of the defense of such claim and all negotiations for the compromise or settlement of such claim. 6.2 Exclusions: Supplier shall have no liability under this Agreement with respect to any claim based upon: (a) Software that has been modified by anyone other than Supplier; (b) use of other than the then-current release of the Software, if the infringement could have been avoided by use of the then-current release and such current release has been made available to Customer; (c) use of the Software in conjunction with Customer data where use with such data gave rise to the infringement claim; (d) use of the Software with other software or hardware, where use with such other software or hardware gave rise to the infringement claim; (e) use of any Software in a manner inconsistent with its Documentation; (f) open source software or technology included within the Software; and/or (g) use of any Software which use breaches this Agreement. 6.3 Remedy by Supplier: If Supplier determines that the Software is or is likely to be the subject of a claim of infringement, Supplier shall have the right: (a) to replace Customer's copy of the Software with non-infringing software that has substantially equivalent functionality; (b) to modify the Software so as to cause the Software to be free of infringement; (c) to procure, at no additional cost to Customer, the right to continue to use the Software; or (d) to terminate the licence to use the Software and Documentation, and refund to Customer the applicable fees (i.e. the applicable licence fee depreciated on a straight-line basis over a five (5) year period for a perpetual licence term including any prepaid but unused maintenance fees for the applicable Software or refund the pro-rated portion of the applicable prepaid but unused licence fee for a subscription licence term). 6.4 Exclusive remedy: THE PROVISIONS OF THIS CLAUSE STATE THE EXCLUSIVE LIABILITY OF THE SUPPLIER AND THE EXCLUSIVE REMEDY OF THE CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION OR INFRINGEMENT BY THE SOFTWARE, ANY PART THEREOF, AND ANY MATERIAL OR SERVICES PROVIDED HEREUNDER, AND ARE IN LIEU OF ALL OTHER REMEDIES, LIABILITIES, AND OBLIGATIONS. ©2015-2019 Software AG. All rights reserved. 4/9 7 WARRANTIES 7.1 Warranties: Supplier warrants that for a period of ninety (90) days from the date of delivery (the “Warranty Period”), the Software, when properly used, will operate substantially in accordance with the Documentation. Supplier's entire liability and Customer's exclusive remedy under this warranty shall be that Supplier will use reasonable commercial efforts to correct, provide a workaround for, or replace (each such action a “Remedy”) any reproducible error in the Software, at Supplier’s cost and expense, provided written notice itemizing such error is given to Supplier during the Warranty Period. Supplier neither covenants nor guarantees that any Remedy nor any other services or support provided under this Agreement will cause the Software to conform to the Documentation. 7.2 Warranty Exclusions: The warranty set forth in this clause above shall not apply to the degree that the reproducible error occurs because (a) the affected Software has been altered, modified, merged, or converted by Customer except as authorized by Supplier; (b) of the malfunctioning of Customer’s hardware or other software; or (c) the affected Software, or a portion thereof, has become inoperative due to any other causes beyond the control of Supplier. Supplier does not warrant that the use of the Software will meet the Customer's internal business requirements or that the operation of the Software will be uninterrupted or error free. The Customer hereby expressly agrees and acknowledges that the foregoing warranties are the only warranties given by Supplier and that all other conditions, terms, undertakings and warranties express or implied, statutory or otherwise in respect of the Software or the Customer’s use of the Software or which arise out of this Agreement including, but not limited to, those as to quality, performance, merchantability or fitness for any purpose are hereby excluded to the maximum extent permitted by law. 8 LIMITATION OF LIABILITY 8.1 Limitation of Liability: EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, SUPPLIER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY CLAIM THAT ARISES FROM OR RELATES IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION ALLEGED, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY OF ANY KIND. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS CLAUSE ARE INDEPENDENT OF EACH EXCLUSIVE OR LIMITED REMEDY SET FORTH IN THIS AGREEMENT. EXCEPT WITH RESPECT TO THE DEFENSE OF INFRINGEMENT CLAIMS UNDER CLAUSE 'INDEMNITY' AND IN THE EVENT OF DEATH OR PERSONAL INJURY OF A PERSON NEGLIGENTLY CAUSED BY SUPPLIER, IN NO EVENT SHALL CUSTOMER BE ENTITLED TO ANY MONETARY DAMAGES AGAINST SUPPLIER, REGARDLESS OF THE FORM OF ACTION ALLEGED, IN EXCESS OF THE AMOUNT OF THE LICENCE FEES PAID TO SUPPLIER BY CUSTOMER HEREUNDER FOR THE PRODUCT TO WHICH CUSTOMER'S CLAIM RELATES. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT CUSTOMER SHALL HAVE NO RIGHT TO OBTAIN SPECIFIC PERFORMANCE TO ENFORCE ANY RIGHT ©2015-2019 Software AG. All rights reserved. 5/9 OR OBLIGATION HEREUNDER. CUSTOMER ACKNOWLEDGES THAT THE LICENCE FEES AND OTHER FEES SET FORTH HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SUPPLIER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT. 9 BREACH 9.1 Breach: Either Party may terminate this Agreement with immediate effect by written notice, if the other Party commits a material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) days of receipt of a notice of default from the other party, specifying the breach and requiring its remedy. Notwithstanding the foregoing, in the case of breach resulting from non-payment of amounts due hereunder, the party in breach will have ten (10) days after receiving written notice to make full payment. 10 EFFECT OF TERMINATION 10.1 Effect of Termination: Upon termination or expiry of this Agreement all rights to use the Software granted under this Agreement shall cease forthwith and the Customer shall within 30 days stop using the Software and provide an according written undertaking to the Supplier. Termination or expiry shall be without prejudice to the rights of the parties accrued prior to the termination or expiry. 10.2 Survival of Clauses: The provisions of this Clause and Clauses Ownership, Confidentiality, IPR Indemnity, Limitation of Liability, Effect of Termination and Governing Law shall remain in full force and effect as between the parties notwithstanding any termination or expiry of this Agreement or any licence to use granted under this Agreement. 11 GENERAL 11.1 Data Protection: Unless stated otherwise, the obligations of the parties in connection with the processing of any customer data that qualify as personal data according to Art. 4 No. 1 of the General Data Protection Regulation (GDPR) (“Customer Personal Data”) including the applicable technical and organizational measures that Supplier is required to implement and maintain to protect Customer Personal Data, shall be as set out in the Data Processing Agreement (if any) entered into between the Parties. 11.2 Customer Use Case Report: Supplier will create an internal customer use case report after the delivery of the Software to Customer. Any use of this report other than for internal purposes of Supplier requires a separate written approval by Customer. Customer agrees to provide input to this report e.g. by being available for a 30 minute telephone interview. 11.3 Third Party Licence Restrictions: The Software may contain or be distributed with certain open source, free or commercial third party licensor’s components (“Third Party Components”). These Third Party Components, if any, may be identified in, and may be subject to, special licence terms and conditions (“Third Party Terms”) set forth in “*.txt” or *.pdf” files in the installation directory, a licence notice on installation or in readme or licence files accompanying Third Party Components and may be retrieved online for then current versions of Software at http://softwareag.com/licenses. Third Party Terms include important licensing and warranty information and disclaimers of licensors. For the avoidance of doubt the Third Party Terms do not restrict the rights granted under this Agreement. In the event that individual program versions ©2015-2019 Software AG. All rights reserved. 6/9 from third party manufacturers that are provided to the Customer in connection with the contractual Software and which are required in order to operate the Software (such as Java virtual machines, applications, frameworks, and databases) (“Accompanying Programs”) or versions of embedded Third Party Components are no longer actively supported by their respective manufacturers, the Supplier will spend commercial reasonable efforts to respond and to solve incidents related to the no longer actively supported Accompanying Programs or embedded Third Party Components. As long as the Customer takes and pays for Maintenance Services for the contractual Software, the Supplier will replace no longer actively supported Third Party Components with other versions of the same Third Party Components or components with similar functions and with available support by the respective manufacturers. None of the forgoing shall restrict Supplier’s support obligations for the Software or parts of the Software owned by Supplier. 11.4 Audit for Software: The Customer will, within 10 working days from the date of receipt of a written request from Supplier (such requests not to be submitted by Supplier more than once per calendar year), confirm to Supplier in writing the Software installed on which machines and at what location(s), including, without limitation, details of the operating capacity available to the Software ('Self-disclosure'). The Self-disclosure shall contain sufficient detail to enable Supplier to assess compliance by the Customer with the terms and conditions set out in this Agreement. Supplier, or at Supplier’s discretion an independent consultant appointed by Supplier, shall have the right on giving reasonable notice to the Customer to enter into any premises (in accordance with any Customer security access requirements) where any Software is held and have access to the relevant machines on which any of the Software is installed for the purpose of auditing the Customer use of the Software in accordance with the terms set out in this Agreement. 11.5 Anti-Corruption: The parties recognize and agree that they will comply with laws, regulations, rules and requirements against bribery, money laundering and anti-corruption they have in place and will maintain policies and procedures in order to ensure compliance with such laws, regulations, rules and requirements. Non-compliance with the provisions of this clause shall grant to the affected party the right to terminate the Agreement immediately with notice. 11.6 Force Majeure: If the performance of this Agreement or any obligation under this Agreement, except for the making of payments, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other Act of God or casualty or accident, or strikes or labour disputes affecting third-party vendors, inability to procure or obtain delivery of parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirements of any governmental agency, denial of service attacks, cybercrimes or malware caused by a third party, failure of utilities or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will take all reasonable steps to avoid or remove such cause of non-performance and will resume performance hereunder with dispatch whenever such causes are removed. 11.7 Assignment: The Customer shall not assign, sub-license, sell, lease, encumber, charge or otherwise in any manner attempt to transfer this Agreement or any of its rights or obligations hereunder. Any purported transfer of this Agreement by the Customer in violation of this Clause shall be null and void. The Supplier shall be entitled to transfer this Agreement within the group of companies of which the Supplier is a member as well as to any third party in connection with the assignment to any such third party of the right of the Supplier to receive any sums payable by the ©2015-2019 Software AG. All rights reserved. 7/9 Customer to it hereunder. 11.8 Export Control: Customer may not download, get and/or provide access to, or otherwise export or re-export any underlying software or service, technology or other information from the Software or Documentation except as stated explicitly in this Agreement and in full compliance with all applicable national and international laws and regulations. Customer agrees to indemnify and hold harmless and defend Supplier against any and all liability arising from or relating to Customer’s breach of this Clause. Supplier reserves the right not to execute affected parts of, or the entire Agreement, in case any national or international export regulations or foreign trade legislation, or any target country/customer/usage restrictions implied by embargoes or other sanctions prohibit the provision of export controlled goods (Dual–Use items) and services to be granted to the Customer under this Agreement. Supplier will inform the Customer whether a related official export approval by national or international export control authorities is required. Provision of affected goods and services will then be postponed until all such required approvals have been granted. The provision of agreed goods or services not restricted by the above mentioned export prohibitions will remain unaffected by this clause. 11.9 Dispute Resolution: The Parties shall attempt to resolve any dispute arising under this Agreement through the informal means described in this Clause. Each Party shall appoint a senior management representative who does not devote substantially all of his or her time to performance under this Agreement. The representatives shall negotiate in good faith to resolve the dispute without the need for any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of (i) the designated representatives mutually conclude that resolution through negotiation does not appear likely; or (ii) thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file for formal proceedings earlier solely to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief. 11.10 Governing Law: This Agreement and all matters relating to the interpretation and effect of this Agreement are made and will be governed exclusively by and construed in accordance with the laws of Poland without giving effect to its conflicts-of-laws provisions and exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties consent and submit to exclusive personal jurisdiction, procedure and venue for legal disputes arising from or connected with this Agreement shall lie with the courts of Poland. 11.11 Prevailing Party: In the event a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys' fees of the prevailing party. 11.12 Non-waiver: No waiver or retraction of a waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom such waiver is sought. The failure of either Party to exercise any right granted herein, or to require the performance by the other Party hereto of any provision in this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement. 11.13 Notices: All notices, demands, or other communications by any party to the other shall be deemed to have been duly given when: ©2015-2019 Software AG. All rights reserved. 8/9 (a) made in writing and delivered in person with signed receipt, or (b) sent via a nationally recognized, traceable, overnight delivery carrier, to the address detailed above, or to such address as the parties may provide to each other in writing from time to time. Notice will be effective upon delivery. Maintenance and Support Services related notices will be posted on Supplier’s then current web-based support portal. 11.14 Amendments in writing: No variation of this Agreement shall be binding unless it is agreed in writing and signed on behalf of both parties by a duly authorized representative. No variation or omission from or addition to any of the terms and conditions of this Agreement whether written or oral shall be binding upon Supplier unless expressly accepted in writing by Supplier. 11.15 Severability: If any Clause (or part of any Clause) of this Agreement is determined by a court of competent jurisdiction to be or becomes illegal, unenforceable or in conflict with any law governing this Agreement, such clause shall be adjusted to the minimum extent necessary (most closely reflecting the legal and economic intent of the parties) to cure such unenforceability, illegality or conflict and the remainder of this Agreement (and the remainder of the relevant Clause) shall remain in effect in accordance with its terms as modified by such adjustment. 11.16 Entire Agreement: This Agreement as may be amended from time to time constitutes the entire agreement between the parties and supersedes all previous communications, non-fraudulent representations or prior and contemporaneous agreements (written or oral) between the parties with respect to the subject matter hereof. 11.17 Withholding counter-performance: Customer may only enforce its rights to withhold counter- performance if the counterclaims upon which the withholding is based relate to the same contractual relationship and are undisputed, mutually settled or have been finally awarded by a competent court of jurisdiction. 11.18 Software Attachments: In the event of any conflict or inconsistency in the definition or interpretation of any term or provision set forth in this Agreement and Exhibits, such conflict or inconsistency shall be resolved by giving precedence to the Software Attachment(s). Any contrary or additional terms and conditions attached to or part of any purchase order or similar document related to this Agreement shall be invalid and non-binding. ©2015-2019 Software AG. All rights reserved. 9/9 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 STANDARD MAINTENANCE AND SUPPORT SERVICE Customer is a licensee of certain Software AG products under a Licence and Maintenance Agreement that the Customer has executed with a Software AG subsidiary (hereinafter “Supplier”). The maintenance and support services that the Supplier has agreed to deliver as provided in the Licence and Maintenance Agreement are defined herein, and this document forms an attachment to the Licence and Maintenance Agreement. 1 DEFINITIONS 1.1 Definitions: Unless the context requires otherwise the following words and expressions shall bear the meanings set out below where used in this Agreement: “Business Day” means the days from Monday to Friday excluding public holidays in country as specified in the Customer address field on the first page of the underlying Licence and Maintenance Agreement that correspond with Software AG’s Global Support operating days. “Business Hour” means the hours from 8.00 am to 5.00 pm on a Business Day of the main support hub within Customer’s region: (a) EMEA – 8 to 5 Central European Time (CET) (b) APJ – 8 to 5 Malaysia Time (MYT) (c) US – 8 to 5 Mountain Time (MT) Global Support operating hours may change from time to time. “Documentation” means the user manuals that the Supplier makes available to licensees of the Software. “Error” means any verifiable and reproducible failure of the Software to substantially conform to the specifications for such Software. Notwithstanding the foregoing, ”Error” shall not include any such failure that is caused by: (i) the use or operation of the Software with any other software or code or in an environment other than that intended or recommended in the Documentation, (ii) modifications to the Software not made or approved by the Supplier in writing, or (iii) any bug, defect, or error in third-party Software used with the Software. “Error Correction” means either a modification or addition to or deletion from the Software having the effect that such Software substantially conforms to the then current specifications, or a procedure or routine that, when exercised in the regular operation of the Software, eliminates any material adverse effect on the Customer caused by an Error. An Error Correction may be a correction, workaround, fix, Service Pack or Service Release. ©2015-2017 Software AG. All rights reserved. 1/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 “Fix” Supplier creates defect fixes at the component level to resolve specific issues. These issues may be identified in our QA labs, or at Customer installations. Fixes are: (a) Tested to ensure the issue is resolved within the target configuration; (b) Cumulative within functional sub-components, e.g., Integration Server Scheduler; (c) Periodically rolled up into planned, cumulative Service Packs or Service Releases; (d) Made available to other Customers via Software AG's Support Portal. “Innovation means a product release intended to give Customer early access to new product Release” capabilities. An Innovation Release has a shorter maintenance and support period compared to a Standard Release. An Innovation Release is clearly labelled as such in documentation and software download tools. “Licence means the Licence and Maintenance Agreement under which the Software is Agreement” licensed to the Customer. “Major Version” a “major version” means one in which significant new features and functionality are delivered. Some but not all of the major versions may also contain architecture changes, thus requiring a complete reinstall to upgrade, rather than the simple "install over" that is typical of Minor Versions, Service Packs and Service Releases. A version that ends in "X.0" is considered a major version. “Minor Version” means one in which some new features and functionality are delivered along with fixes. Versions with numbering of "X.Y" are usually considered minor versions, e.g. webMethods 9.7 or Natural 6.3. Minor versions usually offer easy upgrade and an “install over” approach to upgrade. “Service means a planned release in which an accumulation of Fixes is delivered. It may Release”/”Service additionally include new features. These Service Packs/Service Releases are Pack” denoted using SP or SR in the numbering, e.g. Product A X.Y SP1 or Product B X.Y SR 1. In places where a full version identifier is specified, Service Packs/Service Releases are denoted by the third part of the version number (“X.Y.Z”) Service Packs/Service Releases offer easy upgrade and an “install over” approach to upgrade. For optimal support, Customer is required to upgrade to the latest Service Pack/Service Release. “Software” means the Supplier software programs licensed to the Customer under the Licence Agreement. “Software AG means the Supplier’s Global Support Organization providing the support and Global Support” maintenance services for the respective Customer. ©2015-2017 Software AG. All rights reserved. 2/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 “Software AG’s means the Supplier's web-based Customer support system, designed with Support Portal” proactive services, information and Error Corrections. Software AG’s Support Portal can currently be accessed on “https://empower.softwareag.com” (this URL may change from time to time). “Standard Release” means a full product release that is maintained and supported for several years, as defined in the roadmap published on Software AG’s Support Portal. “Update” means the application of a fix and/or a documentation refresh within a major, minor version. “Upgrade” means a modification to a Major Version, Minor Version, Service Pack or Service Release. 2 SERVICE DESCRIPTION 2.1 Introduction: Customer is entitled to receive the following services for the Software against payment of the agreed-upon support and maintenance fees and according to agreed-upon terms & conditions. Where the Customer holds more than one licence to use any Software then Customer is required to take product maintenance and support services for all (and not some only) of the licensed Software – partial termination is not permitted. 2.2 Standard Maintenance and Support Service: Software AG’s Standard Maintenance and Support Service consists of the following services: (a) Twenty-four (24) hour access to Software AG’s Support Portal including access for authorized technical contacts (“ATC”) to Supplier’s request reporting system for browsing and submitting incidents, online access to new product information, documentation, knowledge center, and information on available Software fixes. (b) 24x7 support service for crisis incidents. Telephone support according to this agreement is available 24x7 (24 hours a day; 7 days a week) for crisis requests and is provided during after-Business Hours and on non-Business Days in English only. With respect to Supplier’s Adabas & Natural product line, 24x7 support service for crisis incidents is available only for Customers located in the US region. (c) 9x5 (9 hours a day; 5 days a week) telephone support for critical and standard incidents according to this agreement during Business Hours. Customer will receive initial response within the defined reaction times during Business Hours only. The respective telephone number is available in Software AG’s Support Portal. If not provided in local language, telephone support is provided in English. (d) Seven (7) authorized technical contacts (ATC) of the Customer entitled to access Software AG’s Support Portal. This restriction applies per Customer and not per contract. All ATCs shall have appropriate professional and technical qualifications and shall be assigned internally by Customer to process queries from users about the Software. To protect against improper use of services, services may only be requisitioned by these ATCs previously-reported to Software AG. Customer may contract for additional authorized contacts. ATC Group accounts that are used by multiple Customer representatives are not allowed. One Customer representative equals one ATC only. (e) Information on new features, events, and Customer application articles. ©2015-2017 Software AG. All rights reserved. 3/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 3 SOFTWARE AND DOCUMENTATION UPDATES 3.1 Software and Documentation Updates: On a when and if available basis, Software AG Global Support provides: (a) New versions of licensed Software AG products; (b) Updates of Software containing error corrections; (c) Documentation updates for the Software. Information regarding availability of Software and Documentation updates is published by the Supplier and available in Software AG’s Support Portal. 4 PROCESSING CUSTOMER REQUESTS 4.1 Introduction: Customer requests will be received by Software AG Global Support and will be documented in Software AG’s Support Portal for further processing. The Customer will be given a reference processing number for future reference. (a) All crisis incidents must be submitted to Software AG Global Support by telephone. (b) The region of a customer is the region where that customer is located or has opted to define that region as their region. For example the region for an EMEA customer is EMEA, however an EMEA customer may opt for another region, say AME, to be their default region. (c) During after-Business-Hours and non-Business Days, all communication will be in English only. (d) When reaching Software AG Global Support by telephone, Customer is to provide the incident/ticket number so that work on the incident can commence. (e) Software AG Global Support has no obligation to solve the Customer’s issue within the reaction or any other time frame. 4.2 Service Expectations: The following support severities are used for classifying the Customer’s incidents. These classifications ensure consistent treatment of incidents handled by Software AG Global Support. Software AG Global Support will determine the appropriate severity level according to the following table: Severity Level Crisis Critical Standard Definitions Customer’s problem has Customer’s problem has Customer’s problem has a severe business a significant business some business impact. impact, e.g. production impact; however, The Software is usable down. Customer is operations can continue and causes only minor unable to use the in a restricted fashion. inconvenience. It may be Software, resulting in a The Software is usable a minor Error, major impact on but severely limited. documentation Error, or Customer’s operations. There is no acceptable incorrect operation of the Work cannot reasonably workaround available. application, which does continue. Customer is experiencing not significantly impede a significant loss of the operation of a system. service. ©2015-2017 Software AG. All rights reserved. 4/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 Severity Level Crisis Critical Standard ReactionTime 1 Hour: call-back or 4 Business Hours: call- 1 Business Day: call- electronic reply. back or electronic reply. back or electronic reply. Reporting (timeframe) Daily reporting As agreed between As agreed between (unless otherwise agreed Software AG Global Software AG Global with Software AG Global Support and Customer on Support and Customer on Support on a case-by- a case-by-case basis. a case-by-case basis. case basis). Reaction Measure Customer is provided with Customer is provided with • Information about a timeline for Error a timeline for Error publication date of the Correction. Correction. Software release that will solve the issue • Indication that changes/ enhancements are being handled in accordance with Software AG's strategy. Required Effort Economically justifiable Reasonable effort within Reasonable effort within effort within standard standard scope of standard scope of scope of resources. resources. resources. 4.3 Tools and Processes: Software AG Global Support uses the following processes and tools to solve or find a workaround to the Customer’s issues: Fault diagnosis/analysis for Supplier’s products: (a) Evaluation of Customer data supplied (including diagnostic information) (b) Classification of the reported situation as a product issue, user issue or third-party issue (c) Research in Supplier’s Support Knowledge Center (d) Reproduction of the error situation (if possible) (e) Coordination with Supplier’s product development Results and/or solutions or workarounds will be provided via one of the following media: (a) Telephone (b) Software AG’s Support Portal (c) E-mail (d) Data carriers 4.4 Remote Diagnosis: Software AG Global Support may perform remote diagnosis to facilitate issue analysis. In such case, Software AG Global Support will access Customer’s environment via a Remote Online Diagnostic Tool for purposes of diagnosis and analysis only. Remote access to Customer’s environments will occur during Business Hours at the times agreed between the Customer and Software AG Global Support. 5 SERVICES OUTSIDE THE SCOPE OF SOFTWARE AG'S MAINTENANCE AND SUPPORT SERVICE 5.1 Out of Scope Services: In addition to the scope of Support and Maintenance Services as ©2015-2017 Software AG. All rights reserved. 5/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 defined in these Maintenance and Support Services Conditions and the underlying Licence and Maintenance Services Terms and Conditions, the Customer may request additional Support and Maintenance Services. Based on availability, such services can be offered as part of a separate service agreement and payment of applicable fees. Further information can be found on Software AG’s Support Portal. The following add-on services are examples and may be subject to change at irregular intervals: (a) Customer Success Manager (b) Designated Engineer (c) After-Business-Hours Support (d) Go-Live Support (e) Multi-Region Support (f) Jumpstart Support (g) Installation Support (h) Upgrade Support (i) Environment Assessment (j) End of Maintenance Extension 5.2 Third Party Materials: In the event that individual program versions from third party manufacturers that are provided to the Customer in connection with the Software and which are required in order to operate the Software (such as Java virtual machines, applications, frameworks, and databases) ("Accompanying Programs") are no longer actively supported by their respective manufacturers, the Supplier shall have no obligation to correct errors occurring in connection with the Accompanying Programs and to respond to incidents reported by the Customer. 6 END OF MAINTENANCE 6.1 Road Map: The roadmap for the provision of maintenance and support services in respect of Major Versions and Minor Versions is published on Software AG’s Support Portal. No separate notice will be provided to the Customer who will be responsible for monitoring updates published on Software AG’s Support Portal. The dates on which maintenance and support services in respect of Major Versions and Minor Versions will be terminated (“End of Maintenance”) will be published on Software AG’s Support Portal and may change from time to time. 6.2 Sustained Support: Following End of Maintenance, Supplier shall be under no obligation to provide new Fixes but will (for a minimum of 12 months from End of Maintenance) provide web- based and telephone assistance (“Sustained Support”) to the Customer for Standard Releases in respect of the relevant Major Version and/or Minor Version. All fixes available prior to End of Maintenance (“Available Fixes”) shall continue to be available to the Customer. 6.3 Beyond Sustained Support: At the conclusion of Sustained Support, Supplier will (for so long as the Customer continues to take and pay for the relevant maintenance and support service) continue to permit the Customer to access hints and available Fixes only. 6.4 New Fixes: Full Support and the supply of new fixes beyond End of Maintenance and Sustained Support may be available at Supplier’s discretion for an additional fee – further details about obtaining an End of Maintenance Extension agreement are available upon request. 7 CUSTOMER RESPONSIBILITIES ©2015-2017 Software AG. All rights reserved. 6/7 CMS Case: 0000026491 / Doc ref: 21,963 Doc created on: 20-Sep-2017 7.1 Customer Responsibilities: The services to be performed are subject to the following conditions: (a) The Customer entered into a valid software support and maintenance agreement with the Supplier and has fully paid the respective support and maintenance fees. (b) The Customer entered into a valid Licence Agreement with Supplier regarding the Software to be supported and has fully paid the respective licence fees that are due to payment. (c) The Software is installed at the Customer’s site or any third party’s site that is authorized – pursuant to the underlying Licence and Maintenance Agreement – to operate the Software on Customer’s behalf (Outsourcing provider). (d) The Customer allows remote access for Software AG Global Support to the Customer environment where Customer is requesting support. (e) The Customer provides appropriate tools to enable remote access for Software AG Global Support (e.g. Interactive Problem Control System (IPCS), Time Sharing Option (TSO), Terminal-Emulation, Netviewer etc.). (f) The Customer establishes appropriate security measures to ensure that Software AG Global Support’s access is restricted to permissible areas. (g) The Customer has installed the release levels of the Software which are supported at the time the relevant Customer request occurs. (h) The Customer uses hardware, operating system software and database software that comply with the specifications of the release levels of the Software which are supported at the time the relevant Customer request occurs; the release levels of the Software which are supported at the time the relevant Customer request occurs can be identified on Software AG’s Support Portal. (i) The Customer provides Software AG Global Support with: • sufficient information and assistance as requested by Software AG Global Support regarding the Customer’s environment (including appropriate computing time) and all necessary information on the error • specific third party expertise relevant to the Customer’s environment, if applicable • information on any used software tools upon Software AG Global Support’s request • diagnostic information such as traces, dumps, parameters, etc. upon Software AG Global Support’s request. ©2015-2017 Software AG. All rights reserved. 7/7 L EPINGU nr NR 1-167/19 Lisa 1 Litsentside leotelu ja hinnad. 1. Soetatavad Webmethods litsentsid Toote nimetus Toote kood Kasutus Kogus Hinnastusmudel Operatsiooni-süsteem Broker PIF Development 2 Processor Core TypeD Red Hat Linux (x86) Integration Server PIE Development 2 Processor Core TypeD Red Hat Linux (x86) webMethods Adapter for JDBC JDB Development 2 Processor Core TypeD Red Hat Linux (x86) My webMethods Server MWS Development 2 Processor Core TypeD Red Hat Linux (x86) 2. Litsentside kogumaksumus: 120 864,28 EUR (ükssada kakskümmend tuhat kaheksasada kuuskümmend neli ja 28/100 eurot), millele lisandub käibemaks. 3. Toeteenuse kogumaksumus: 24 172,86 EUR (kakskümmend neli tuhat ükssada seitsekümmend kaks ja 86/100 eurot), millele lisandub käibemaks. 4. Toeteenuse hooldusperiood: 01.05.2019. – 31.12.2019. Teenuse osutaja: Klient: AS Helmes AS Lõõtsa 6, Tallinn 11415 Tel +372 610 6100 E-post: [email protected] Tervise ja Heaolu Infosüsteemide Keskus Uus-Tatari 25, Tallinn Tel: (Allkirjastatud digitaalselt) Ove Muuk (Allkirjastatud digitaalselt) Katrin Reinhold

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