Productivity Software License and Maintenance Terms PDF

Informatietechnologie B.V., a company located in the Netherlands (“BDH-IT”), who Productivity Software License and can also own various patents protecting Maintenance Terms such intellectual property right...

Informatietechnologie B.V., a company located in the Netherlands (“BDH-IT”), who Productivity Software License and can also own various patents protecting Maintenance Terms such intellectual property rights. (“PSG Patents”, as listed at https://www.productivity.nl/). To the extent These License and Maintenance Terms necessary for Use of the Licensed Product (“Agreement”) apply to any license grant by and solely in connection with the Licensed Productivity Software Group B.V., with its Product, PSG, duly authorized by BDH-IT, registered office at Achthoevenweg 34A, hereby grants Licensee a nonexclusive, non- 7951 SK, Staphorst, The Netherlands (“PSG”) transferable, revocable license to use the to any end-user (“Licensee”) for the use of PSG Patents for the applicable license PSG software products or software services. period. “Use” means reading into and out of By ordering, installing, using, copying, or memory of the Licensed Software and the otherwise using such software products or execution of the Licensed Software, in whole software services, Licensee agrees to be or in part, by the hardware platforms and bound by the terms of this Agreement. Any operating systems as identified in the terms and conditions proposed by Licensee applicable offer (“Designated Equipment”). inconsistent with or in contradiction to this The right to Use does not include the right to Agreement shall be void and of no effect, assign, rent, sublicense or make otherwise unless specifically agreed to in writing by available to any third party, nor permit PSG. assignment, rental, sublicensing or making 1. License Grant otherwise available of any of the rights granted hereunder, whether by operation of 1.1 PSG hereby grants Licensee for the law or otherwise. Any attempt to do any of applicable license period specified in the the above without PSG's prior written applicable offer (“Initial Period” or “Renewal consent shall be null and void and shall be Period”) and in accordance with the type of considered an incurable breach of this license chosen (“Node-Locked License” or Agreement. “Floating License” or “Subscription to Cloud Service” or “Token” or “Other” as defined in Licensed Product may include software and each offer) a limited, non-exclusive, non- documentation from a third party, as transferable, revocable license to Use the identified on https://www.productivity.nl/, software product or software service which shall be subject to any obligations or identified in the applicable offer, in the restrictions imposed by such third party’s version existing as of the order date, and all license terms and which shall only be Used updates and upgrades thereto supplied by by Licensee in connection with the Licensed PSG to Licensee (“Licensed Software”) and Products and for the term of the respective to Use all published documentation related license grant. to the Licensed Software, including but not 1.2 Unless explicitly stated herein, no right, limited to manuals, technical specifications title, license, interest or any other proprietary and training materials, supplied by PSG from rights, express, implied or otherwise, in or to time to time (“Licensed Documentation”, the Licensed Product or modifications Licensed Software and Licensed thereof are granted to Licensee. Licensee Documentation are hereinafter collectively acknowledges and agrees that, except for referred to as “Licensed Product”). The content from unrelated third party contained intellectual property rights contained in the therein, Licensed Product and all copies Licensed Product are owned by PSG’s thereof and any corrections, derivative affiliated company Buro de Haan works or other modifications are PSG’s exclusive property and constitute a valuable Designated Equipment is a license or cloud trade secret. server PSG shall be entitled to charge license fees for each and any Floating 2. Supply and Installation License related to such server. 2.1 As of the license start date specified in the applicable offer, PSG shall provide 3. Maintenance and Support Licensee with the Licensed Product and with During the applicable license term, PSG a temporary license key which allows (directly or through a designated third party) Licensee to temporary Use the Licensed shall provide Licensee with instructions and Product from the start date of the Initial advice regarding the installation and Use of Period or of any successive Renewal Period the Licensed Software and shall by means of until the payment date of such period telephone, e-mail or internet communication (specified in the applicable offer), but which during PSG’s normal business hours assist does not imply any right to reject the Licensee in diagnosing errors, malfunctions Licensed Product. Upon receipt of full and defects of the Licensed Software payment of the license fee’s set forth in the (excluding unexpected, inaccurate or invalid applicable offer, PSG shall provide Licensee results obtained) to perform any material with a full license key that allows Licensee to function specified in the Licensed Use Licensed Product for the respective Documentation, and shall use reasonable license period. Licensee shall be responsible efforts to correct them or to offer for the installation of the Licensed Software workaround suggestions (“Maintenance on the Designated Equipment located at Services”). Maintenance Services include Licensee’s facility identified in the applicable assistance necessary in connection with, but offer (“Permitted Facility”). do not include correction of third party Licensed Products and do not include 2.2 Upon expiration of any current license assistance necessary as a result of term, PSG at its sole discretion may change Licensee’s not Using the Licensed Product in the availability of the Licensed Software for accordance with this Agreement or the Designated Equipments (cloud platforms, Licensed Documentation. PSG is only hardware platforms and / or operating obliged to provide Maintenance Services for systems) with one hundred and eighty (180) the most current Licensed Product version. days advance written notice to Licensee. Maintenance Services for any other version 2.3 Licensee may submit to PSG a written are provided at PSG’s sole discretion. request to change the Designated 4. Supply and Installation Equipment. Such request shall specify both the former and the future Designated 4.1 Licensee shall permit only properly Equipment including serial number and trained, qualified and authorized employees processor type and may be accepted by to Use the Licensed Software in accordance PSG at its sole discretion. Licensee is with this Agreement. required to give written certification to PSG 4.2 Licensee shall provide PSG with all that the Licensed Software is no longer information, documentation, technical Used on the former Designated Equipment. assistance and access to the Designated Any further Use of the Licensed Software on Equipment as PSG may require in order to the former Designated Equipment by perform its duties set forth in Section 3 Licensee shall entitle PSG to charge an hereof and/or to verify compliance by additional license fee; in case the former Licensee with the terms and conditions of this Agreement. PSG shall be released from underpaid any fees due or uses Licensed its obligations under Section 3 if Licensee is Product in an unauthorized manner, unable or otherwise fails to provide PSG with Licensee shall immediately pay PSG any the foregoing. amounts due, together with interest for late payment of one (1) percent per month, but in 4.3 Licensee shall not use the Licensed no event exceeding the highest rate Product on behalf of competitors of PSG, permitted by applicable law. Licensee shall nor provide any competitors with results of also reimburse PSG for all reasonable costs any Licensed Product usage or results incurred in connection with the audit. In generated with the Licensed Product. addition, PSG expressly reserves the right to 4.4 All Licensed Products delivered under take legal action. this Agreement are subject to local export 5. Fees and Other Charges control laws and regulations, and may be subject to export or import laws and 5.1 As remuneration for the Use of the regulations of other countries. Licensed Product (including the underlying PSG Patents) Licensee shall pay to PSG the 4.5 Licensee may copy the Licensed annual or monthly license fees in advance Product in whole or in part for back-up according to Section 2.1 of this Agreement purposes only and may not use such copy and the payment terms as set forth in the for any purpose other than to replace a applicable offer, without offset or demand damaged copy. All copies of the Licensed therefore, for the specified period/s of time. Product, in whole or in part, shall contain all License fees are inflationindexed and in case of PSG’s restrictive and proprietary notices of inflation will automatically be adjusted as they appear on the Licensed Product accordingly at the beginning of a Renewal provided by PSG. Period. In addition PSG may change the 4.6 Licensee agrees not to modify, reverse license fees for any Renewal Period (e.g. engineer, translate, disassemble or price adjustment due to exchange rate decompile the Licensed Product or any fluctuations) by providing Licensee with at portion thereof except to the extent that this least ninety (90) days advance written notice prior to the end of the then-current license restriction is expressly prohibited by applicable law. period. 5.2 Fees due in consideration of PSG’s 4.7 Licensee accepts that, in order to prevent unlicensed use (copyright performance of its duties under Section 3 hereof are included in the annual license infringement / piracy) of its products, PSG may through specific software features fees and are not charged separately to collect data in order to identify unauthorized Licensee. Any services provided outside the changes to the licensing or activation scope of PSG's duties under Section 3 functions of the Licensed Product. hereof shall be charged on a time and materials basis at PSG’s then current rate. 4.8 Licensee agrees that PSG may audit 5.3 All applicable charges shall be due and Licensee’s facilities, records and Use of the Licensed Product to determine Licensee’s payable to PSG on the payment date of the compliance with the terms and conditions of respective period, as specified in the applicable offer. For any unpaid amounts, an this Agreement. Such audits shall occur after prior notice during regular business hours. If interest rate for late payment of 1 percent such audit reveals that Licensee has per month but in no case exceeding the highest rate permitted by applicable law shall and/or BDH-IT from and against all apply. damages, losses, liabilities and expenses arising from or related to such violation. This 6. Intellectual Proprietary obligation shall survive the expiration or Rights Indemnity termination of this Agreement. 6.1 Licensee shall be indemnified and 6.5 TO THE EXTENT PERMITTED BY defended from and against all claims that the APPLICABLE LAW, THE PROVISIONS OF Use of the Licensed Product (including PSG THIS SECTION 6 SET FORTH PSG’S Patents) by Licensee during the term of this EXCLUSIVE OBLIGATION WITH RESPECT Agreement violates any thirdparty TO CLAIMS PERTAINING TO intellectual property right, provided that INFRINGEMENT OF INTELLECTUAL Licensee (a) promptly notifies PSG of any PROPERTY RIGHTS. intellectual property infringement claim; and (b) gives PSG sole control of the defense 7. Warranty and settlement of any such claim and does 7.1 PSG DELIVERS THE LICENSED not admit liability; and (c) cooperates with SOFTWARE MATERIALLY PSG in any such defense and settlement. CORRESPONDING TO THE LICENSED 6.2 If a Licensed Product is, or in PSG’s DOCUMENTATION AND WILL DURING THE opinion is likely to become, the subject of a APPLICABLE LICENSE TERM AT ITS OWN an infringement claim, then PSG, at its sole DISCRETION CORRECT OR REPLACE IT IN option and expense, will either (a) obtain for CASE OF NON-COMPLIANCE PROVIDED Licensee the right to continue using the THAT LICENSEE IS IN FULL COMPLIANCE Licensed Product under the terms of this WITH ALL APPLICABLE CONTRACTUAL Agreement; (b) replace the Licensed Product TERMS. TO THE FULLEST EXTENT with a product that is substantially equivalent PERMITTED BY THE APPLICABLE LAW, in function, or modify the Licensed Product NO FURTHER WARRANTY IS GIVEN so that it becomes noninfringing and REGARDING PERFORMANCE OF THE substantially equivalent in function; or (c) LICENSED PRODUCT OR REGARDING refund to Licensee the portion of the license CORRECTNESS OF THE DATA OR FILES fee paid to PSG for the Licensed Product DELIVERED FOR USAGE PURPOSES giving rise to the infringement claim, less a TOGETHER WITH THE LICENSED charge for use by Licensee based on SOFTWARE. straight line depreciation assuming a useful 7.2 LICENSEE ACKNOWLEDGES THAT life of five (5) years. LICENSED SOFTWARE USES STATE-OF- 6.3 PSG SHALL HAVE NO LIABILITY OR THE-ART TECHNOLOGY AND INDEMNIFICATION OBLIGATION TO THE ALGORITHMS THAT ARE NOT EXTENT ANY INFRINGEMENT CLAIM NECESSARILY PROVEN ACCURATE OR RELATES TO LICENSEE'S UNAUTHORIZED VALID AND THAT EXCEPT FOR THE ALTERATION, MODIFICATION, OR USE OF EXPRESS WARRANTY SET FORTH IN THE LICENSED PRODUCT. SECTION 7.1, THE LICENSED PRODUCT IS PROVIDED ON AN "AS IS" BASIS WITHOUT 6.4 In the event that Licensee violates any ANY WARRANTY, EXPRESS OR IMPLIED, intellectual property rights pertaining to the INCLUDING, BUT NOT LIMITED TO, THE Licensed Product, Licensee agrees to IMPLIED WARRANTY OF indemnify, defend and hold harmless PSG MERCHANTABILITY OR THE IMPLIED WARRANTY OF FITNESS OF THE THE PERFORMANCE OF CONTRACTUAL LICENSED PRODUCT FOR A PARTICULAR OBLIGATIONS UNDER THIS AGREEMENT. PURPOSE. 9. Confidentiality 7.3 LICENSEE SHALL IN ANY EVENT BE 9.1 Licensee acknowledges that the SOLELY RESPONSIBLE FOR THE Licensed Product and any information SELECTION, SUITABILITY AND related to it is considered PSG Confidential EFFICIENCY OF THE LICENSED PRODUCT Information and may not be disclosed in FOR ITS INTENDED PURPOSES AND whole or in part to anyone, except to those PLANNED USE AND ASSUMES ALL RISKS of Licensee’s employees involved in the ARISING FROM OR RELATED TO SUCH execution of this Agreement who are USE AND TO THE FULLEST EXTENT required to have the information in order for PERMITTED BY APPLICABLE LAW WAIVES Licensee to Use the Licensed Product ALL CLAIMS AGAINST PSG ASSOCIATED hereunder and who are bound by THEREWITH. confidentiality terms at least as stringent as 8. Limitations of Liability the ones stated herein. Upon termination of this Agreement, Licensee will delete all 8.1 TO THE FULLEST EXTENT PERMITTED Confidential Information received. BY APPLICABLE LAW, PSG SHALL ONLY BE LIABLE FOR ANY DAMAGES CAUSED 9.2 Confidential Information shall not include IN CONNECTION WITH THIS AGREEMENT, information that (a) is or becomes public WHETHER CONTRACTUAL OR IN TORT, IF without violation of this Agreement; or (b) THEY ARE THE RESULT OF WILLFUL was known by Licensee prior to PSG’s MISCONDUCT OR GROSS NEGLIGENCE disclosure of such information to Licensee ON THE PART OF PSG. as evidenced by written records; or (c) is disclosed to Licensee without any obligation 8.2 TO THE FULLEST EXTENT PERMITTED of confidentiality by a third party lawfully in BY APPLICABLE LAW, AND WITH THE possession of such information. EXCEPTION OF LICENSEE'S OBLIGATIONS UNDER SECTIONS 4.3, 4.6, 9.3 Injunctive Relief. Licensee acknowledges 9.1, AND 9.3 OF THIS AGREEMENT, that violation or threatened violation of its NEITHER PSG NOR LICENSEE SHALL BE confidentiality obligations would cause PSG LIABLE TO THE OTHER PARTY FOR ANY or any Affiliate substantial and irreparable INDIRECT, INCIDENTAL, CONSEQUENTIAL, harm, which in addition to any other available PUNITIVE, RELIANCE OR SPECIAL remedies would entitle PSG or an Affiliate to DAMAGES, INCLUDING WITHOUT seek injunctive relief. LIMITATION, DAMAGES FOR LOST PROFITS, CLAIMS OF THIRD PARTIES, 10. Term and Termination PECUNIARY ADVANTAGE, SAVINGS OR This Agreement comes into force as of the REVENUES OF ANY KIND OR INCREASED respective order date of the respective COST OF OPERATIONS. Software Product and remains in force during the whole applicable license period 8.3 TO THE EXTENT THAT A PARTY’S unless terminated by any party in the event LIABILITY IS EXCLUDED OR LIMITED, THE of a material breach by the other party that SAME ALSO APPLIES TO ITS EMPLOYEES, is incurable or that is not cured within thirty REPRESENTATIVES, AFFILIATES AND ANY (30) days after receipt of written notice of OTHER PERSONS THAT PSG EMPLOYS IN such breach. In case of termination all amounts accrued data is described in PSG’s customer privacy shall become immediately due and payable policy as available under and any license granted hereunder shall https://www.productivity.nl/. Licensee shall automatically terminate. Licensee shall provide this customer privacy policy to any immediately stop Using the Licensed of its users of the Software Product. Product and destroy all copies, including 11.3 Any provisions which by their nature partial copies of Licensed Product, and give may be reasonably inferred to have been written certification of such destruction to intended to survive termination shall survive PSG or, upon PSG’s respective request as enforceable rights and obligations. return the Licensed Product. In case of termination for cause by Licensee, PSG shall 11.4 This Agreement is the entire agreement refund to Licensee fees that were paid in between the parties relating to the subject advance for the respective license period on matter hereof and supersedes all prior a linearly pro-rated basis. In all other cases, understandings, writings, proposals, any amounts paid by Licensee under this representations or communications, oral or Agreement will remain with PSG. written, of either party. 11. General Provisions 11.5 This Agreement is governed by Dutch 11.1 11.1 Any provision of this Agreement held law, without regard to conflicts of law to be invalid, illegal or unenforceable by a principles, Place of Jurisdiction shall be the court of competent jurisdiction shall be Court of Zwolle. deemed severed from this Agreement and shall not affect the validity and enforceability of the remaining clauses. The parties agree to promptly attempt to reach an agreement on a substitute clause. A 11.2 Licensee agrees that PSG stores and uses all data and information required for or resulting from the business relationship between the parties (including but not limited to contractual documents and information about Licensee and Licensee‘s auxiliary persons) as necessary for due performance of PSG’s obligations under this Agreement. Such data may be stored and used in and outside Licensee’s country of incorporation and it may be disclosed to affiliated companies of PSG for providing services, fulfilment of legal requirements or for PSG internal audit and/or supervisory requirements; to the extent PSG processes personal data within the meaning of Art. 4 no. 1 of the Regulation (EU) 2016/679 (General Data Protection Regulation – GDPR) PSG complies with applicable data protection law. The processing of personal