End-User License Agreement (“EULA”) GMBAPI
This license agreement is entered into by and between the licensee (“End-User”) and European Analytics B.V., a company organized under the laws of the Netherlands (“GMBAPI”).
The software provided, under which name whatsoever, and, as long as the End-User has a right to Service (as defined under section 9) any product release or service release related to such software, and documentation (the “Software”) are licensed to End-User by GMBAPI and are provided for use solely under the terms of this EULA. GMBAPI reserves all rights not expressly granted under this EULA. GMBAPI hereby grants to End-User a non-exclusive, non-transferable, limited license to install and use the rightfully obtained version of the Software, solely in object code format for End-User’s own internal business use and without the right to sublicense (“License”). The Software may only be used for the purpose for which it is designed as described in the documentation. End-User is not entitled to split or separate a bundle of Licenses in any way whatsoever.
3. Standalone version
If GMBAPI identifies the Software as a standalone version the End-User may install and use one (1) copy of the Software within its organization. The End-User can appoint any person within the organization as a user, and can change this at any time, provided that no more than one user is appointed at the same time for every License obtained by the End-User and provided that the user is employed by or working on the basis of an assignment of the legal entity of the End-User. If hardware is replaced by other hardware, a new activation code might be needed, and a new code may be requested. GMBAPI may refuse delivery of a new code, if it has reasons to suspect misuse of the License or breach of the EULA.
4. Network version
If GMPAPI identifies the Software as a network version End-User may install and use one (1) copy of the Software on its network server. The maximum number of concurrent users shall be specified in the order form or an attachment to this EULA. The End-User can only appoint users that are employed by or working on the basis of an assignment of the legal entity of the End-User.
5. License term
The term of a License to use the Software is limited to a one (1) month and will renew automatically after expiry of such term, unless terminated by the End-User.
(1) End-User may not distribute rent, loan, lease, sell, sublicense, assign or transfer all or any portion of the Software, or any rights granted in this EULA, to any other person or entity without the prior written authorization of GMBAPI;
(2) End-User is not entitled to modify, translate, adapt, arrange or create derivative works based on the Software for any purpose.
(3)The Software may not be copied to be distributed in any electronic form and may not be published on the Internet.
GMBAPI and/or its licensors hold all intellectual property rights pertaining to the Software. This EULA does not grant to End-User any ownership in the Software. End-User shall not remove any proprietary notice of GMBAPI or its licensors from any copy of the Software. Any copy of the Software made by End-User in accordance with this EULA shall contain GMBAPI’s copyright notices.
GMBAPI will send End-User a registration code after acceptance of a valid and duly signed order form and (if required) advance payment. This code enables the End-User to install and use the Software. End-User is responsible for the proper installation and registration. During installation an additional activation code may be required. This code is generated by an internet application maintained and operated by GMBAPI, and is based only on certain computer hardware characteristics collected by the Software. No other information is collected.
Service (“Service”) consists of: (1) access to all relevant Software updates that are released, during the term of this agreement and as far as reasonably possible, and (2) free access to the helpdesk of GMBAPI. Helpdesk service means that during the license term the End-User can, during business hours, ask questions concerning the working of the Software. Service is available to a designated contact person of the End-User only. GMBAPI reserves the right to have its help desk refusing to answer a question.
GMBAPI reserves the right to adjust its prices for Service. End-User accepts that software specifications can change with each update. If End-User sends data to GMBAPI, GMBAPI will keep all data and information strictly confidential.
10. Partner terms and conditions
Notwithstanding the terms of this EULA, the End-User acknowledges that if the Software is provided by a partner of GMBAPI to the End-User, such partner is responsible for the provision of the License or any Service and that GMBAPI cannot be held liable by the End-User for the provision of the Software or Service. A contractual relationship between the partner and the End-User with respect to the provision of the Software and Service exists. Partner might use its own (sales) terms and conditions. GMBAPI cannot accept any responsibility for any commitment whatsoever made by the partner. Partner will send invoices to the End-User. If the End-User does not pay the amount due to the partner, GMBAPI is entitled to terminate the right to Service. End-User will hold GMBAPI harmless for any claim, any compensation of damages relating in any way directly or indirectly to the partner and any product provided by a partner, and hereby indemnifies GMBAPI for any such liability or damages.
In such event:
- the sole obligation of GMBAPI towards such End-User is to permit the use of the Software, provided that the Software is used in accordance with the terms of (i) the agreement between the End-User and the partner and (ii) this EULA; and
- the End-User is bound towards GMBAPI by the limitations regarding the use of the Software and Services as described in this EULA; and
- GMBAPI has the right to invoke the limitations, referred to under b. against the End-User.
In the event that the agreement between the End-User and the partner terminates and such termination is not caused by a breach of the End-User, this section 10 will cease to apply and the EULA will apply fully between GMBAPI and the End-User, subject to the provision in the next sentence. If GMBAPI notifies the End-User within one (1) month from the termination of the agreement between the partner and the End-User, stating that GMBAPI does not accept such full applicability: (i) GMBAPI has the right to terminate
the use of the Software and Services by the End-User immediately and (ii) GMBAPI has the right to claim any amounts, due by the End-User to the partner and the End-User is obliged to pay for the use of the Software and the Services after termination of the agreement between the partner and the End-User to GMBAPI.
End-User will receive invoices from GMBAPI if GMBAPI delivers the Software directly to End-User. Invoices from GMBAPI, must be paid within the time stated in the invoice. If End-User does not pay the sum due in time GMBAPI is entitled to terminate the right to Service and the End-User owes statutory interest on the unpaid amount, without any notice of default being necessary. If the End-User still fails to pay the claim after being put in default, the claim may be passed on for collection. In this case End-User is obliged to pay additional extrajudicial and judicial costs, the sum of which shall be established at a minimum of 15% of the total outstanding amount. GMBAPI is, such at its discretion, entitled to request advance payment. GMBAPI may appoint a third party to send invoices and collect payments and/or credit card payments on its behalf. Payments made to such partners will be considered as payments made to GMBAPI.
GMBAPI shall have the right to terminate the EULA if End-User, after being given proper written notice of default and setting a reasonable term in which the breach can be remedied, is in breach of any of its obligations under the EULA.
GMBAPI may terminate the EULA by written notice having immediate effect, without any notice of default and without judicial intervention, wholly or in part, if End-User is granted a moratorium on payment, whether or not provisional, if the involuntary winding-up of the End-User is requested or if its enterprise is liquidated or terminated in any other manner than through restructuring or a merger of enterprises.
GMBAPI shall never be liable for damages because of termination. The provisions regarding intellectual property, ownership, limitation of liability and choice of law and competent court shall survive the expiration or termination of this EULA.
13. Limited warranty (“garantie”)
GMBAPI warrants that the Software shall be free from material defects in materials and workmanship, and shall conform in all material aspects to the specification as described in the documentation provided that the Software is used in accordance with the description and/or ordinary practices and conditions. GMBAPI does not warrant that the functionality of the Software will meet End-User requirements or that the software is fit for any particular purpose.
GMBAPI does not warrant that the Software will run without interruption, or error free, virus free or that defects will be corrected, or that advice, support or other information given by GMBAPI or its partners does not contain errors. It is the responsibility of the End-User to make back-ups and to take all steps to ensure the Software does not damage the End-User’s information or system. In the event that the Software does not comply with the warranty set out above and GMBAPI is notified of such non-conformity within the warranty period, GMBAPI, at its sole discretion, either will replace such non-conforming Software or will refund the total amount paid for the non-conforming Software as the End-User’s sole remedy. GMBAPI grants no other warranty, either express or implied.
GMBAPI shall in no event be liable to End-User or any third party for any indirect damages and/or loss, incidental, special or consequential damages and/or loss or similar damages, including without limitation, indirect, special, punitive, or exemplary damages for loss of business, loss of profit, missed savings, loss due to business stagnation, loss of data, or loss of business information, arising out of this EULA or connected in any way with the use of or the inability to use the Software, or the provision of Service, or for any claim by any other party, even if GMBAPI has been advised of the possibility of such damages.
GMBAPI’s total liability to End-User for all damages, and losses of any kind (“schade”) notwithstanding the cause of action (whether in contract, tort – including negligence –, or otherwise) shall be limited to compensation of direct damage NOT GREATER THAN THE AMOUNT OF THE PAID LICENSE PRICE (EXCLUSIVE OF VAT). Liability of GMBAPI will only arise if End-User informs GMBAPI in writing of any default (“toerekenbare tekortkoming in de nakoming”) and the damages resulting therefrom as soon as possible setting a reasonable term in which the default can be remedied. Any notice of default (“ingebrekestelling”) must specify the failure as detailed as possible, so that GMBAPI will be able to respond adequately. The total liability of GMBAPI for loss due to death or bodily injury or for damage and/or loss due to the intention or gross negligence of GMBAPI, shall under no circumstances amount to more than the amount received from the insurance company in the respective case. Except for the cases referred to above, GMBAPI shall not be liable in any way whatsoever for damages, irrespective of the grounds on which an action for damages might be based. A condition for the existence of any right to damages shall always be that End-User reports the damage and/or loss to GMBAPI as quickly as possible after it arises.
GMBAPI shall defend End-User against any action brought against End-User to the extent that such action is based on the claim that any Software, when used in accordance with this EULA, infringes a copyright of a third party. The End-User must promptly notify GMBAPI in writing of any claim and give GMBAPI sole control of the defence and settlement thereof. The End-User shall provide all assistance in connection therewith. If the Software is finally adjudged to infringe, or in GMBAPI’s option is likely to become the subject of an infringement claim. GMBAPI shall, at its sole discretion, either: (1) procure for End-User the right to continue to use the Software, (2) modify or replace the Software to make in non-infringing, or (3) refund the price paid by End-User for the Software, minus a reasonable usage fee as the End-User’s sole remedy.
16. Compliance with laws
End-User must comply with all domestic and international (export) laws and regulations regarding the Software and with any end-user, end-use and destination restrictions issued by governments. End-User must at its own expense obtain and arrange for the maintenance of any government approval and comply with all applicable laws and regulations necessary for End-User’s performance of the EULA. End-User will defend, indemnify and hold harmless GMBAPI from and against all fines, penalties, liabilities, damages, costs and expenses incurred by GMBAPI as a result of any violation of (export) laws or regulations by the End-User or any of its agents or employees.
17. Modification EULA
GMBAPI reserves the right to modify this EULA for any new product or service release. By installing the new release End-User accepts the new or revised version of the EULA.
18. Choice of Law and jurisdiction
This agreement and any disputes arising out of or in connection with this agreement shall be governed by Dutch law excluding its articles regarding conflict of laws. Any and all disputes which might arise between GMBAPI and End-User shall be exclusively submitted to the competent court in ‘s-Hertogenbosch, the Netherlands.