General license terms Netpresenter software
Article 1. Definitions
The General License Terms of Netpresenter use the following definitions:
Documentation: any user documentation necessary, both on paper and in electronic format, pertaining to Netpresenter Software.
License: the right granted to Licensee to operate Netpresenter Software in accordance with this agreement.
Insufficiency: a defect that does not negatively influence the operational performance of the Netpresenter Software.
Licensor Staff: any staff members that Licensor employs for the execution of this Agreement who will work under his responsibility.
Malfunction: a defect because of which Licensee is unable to use one or more functions of the Netpresenter Software due to its dysfunction on the device.
Netpresenter Software: the software to be delivered by Licensor including the corresponding Documentation for the use of which Licensee has been licensed by Licensor.
Operational Malfunction: a defect that seriously disrupts operation of the Netpresenter Software. Licensee determines when such Operational Malfunction occurs. An Operational Malfunction occurs in any case in which normal operation of one or more Netpresenter Software functions is disabled for a period longer than 24 hours after notification of the defect to Licensor.
Professional Deficiency: shortcomings, such as errors, carelessness, negligence, defaults, incorrect advice, that a professional Licensor under the given circumstances, observing a normal level of concentration, and standard professional knowledge and performance should be able to avoid.
Shortcoming: a defect that hampers Netpresenter Software operations and/or affects or reduces the trustworthiness, the integrity, and/or availability of the databases running under Netpresenter Software.
Upgrade: an updated version of the Netpresenter Software, which includes repairs of detected/hidden faults, logical relational improvement of the Netpresenter Software and/or enhancement of its functionality.
Workdays: calendar days, except weekends and national holidays, on which the activities agreed will be performed.
Article 2. Support
Provided licensee has an active support & maintenance contract.
2.1 Licensor shall provide support to Licensee’s staff, but not to end users, in troubleshooting Netpresenter Software operations.
2.2 Licensee may consult any related problems with Licensor either by telephone or in writing, but preferably by email to [email protected]
2.3 In case of any urgent questions by telephone or email, Licensor shall as soon as possible, but not later than 48 hours, respond either by telephone or in writing. In any other cases, Licensor shall respond in writing within 1 week upon receipt of the question(s).
2.4 Licensor shall provide support on Workdays from 9:00 am to 5:00 pm (CET) and Licensee shall submit any requests hereto by telephone or email. Licensee shall confirm a defect incidence in writing, if requested by Licensor.
Article 3. Defect solving
Provided licensee has an active support & maintenance contract.
3.1 Licensor shall take concrete action to solve any reported defect as soon as possible, but not later than 2 working days after reporting.
3.2 Licensor shall attempt solve the reported defect within 10 days upon reporting.
3.3 Licensor shall assist Licensee in solving the reported defect without any reservation.
3.4 If a reported incidence is later found not to be attributable to the supplier, Licensor is entitled to present Licensee with an invoice for the corresponding activities performed.
3.5 If a defect can only be remedied through the installation of an upgraded version of Netpresenter Software, Licensee is held to install this Upgrade.
3.6 Defect solving shall only be performed until the warranty period mentioned in Article 6 has expired. If, after expiration of the warranty period, Licensee wishes to continue Licensor’s maintenance services, the corresponding standard maintenance provisions shall apply. If the License regards a purchase agreement and no maintenance is agreed, no appeal can be made to the provisions in this article.
3.7 If Licensor considers it necessary to gain access to Licensee’s systems, this access shall unconditionally be provided by Licensee to any system on which Netpresenter Software has been installed.
Article 4. Costs Troubleshooting and Maintenance
4.1 Licensor shall solve any defects reported after expiration of the warranty period free of charge. In the event that no maintenance has been agreed with Licensee, the corresponding support & maintenance charges shall be charged retroactively.
Article 5. Upgrade Deliveries
5.1 In the case of a lease agreement or purchase agreement, both with a validity period of three years or more, Licensor shall deliver new Upgrades that are released during the warranty period and the validity period of the License agreement. The Upgrade shall include all updated Documentation as well.
5.2 Licensor shall deliver Upgrades free of charge if Upgrade deliveries are provided for in the agreement.
Article 6. Warranty
6.1 Parties guarantee that all obligations under this Agreement shall be met.
6.2 Licensor guarantees the accurate and professional performance of the activities to be performed by him.
6.3 The warranty period is determined at three months or 90 days upon signature of the agreement.
6.4 Licensor guarantees that the Netpresenter Software to be delivered shall not contain any security measures and/or functions and/or elements alien to the software (such as logic bombs, viruses, worms, etc.) other than those mentioned in the Documentation.
Article 7. Invoice Payment
7.1 Licensee shall pay invoices issued by Licensor regarding the execution of this Agreement and submitted in accordance with the provisions of this Agreement before the effective start date of the License.
7.2 Late payment entitles Licensor to charge a percentage with a maximum of 1% per month over any outstanding amounts of which payment period has been exceeded by more than 15 days.
7.3 Licensor shall never waive any earnest, rental, and maintenance moneys nor refund these moneys if they are due because of late notice or when notice is given during the contract year.
Article 8. Liability and Indemnification
8.1 If one of the parties fails to meet any of the obligations under this Agreement, the other party shall serve notice of default on the corresponding party.
8.2 Notification hereof shall be given in writing indicating a reasonable term for the defaulting party in which to meet the corresponding obligations. This term will be the final term.
8.3 Parties are liable for professional errors made by their staff or any third parties contracted by them. Liability is limited to the amount paid by the licensee for purchase of the software or one year’s rental fee if the software has been rented.
8.4 The party who defaults on his obligations is liable for payment to the other party for any damage or any future damage suffered, maximally equaling the License amount or the year amount in case of any earnest money paid.
8.5 The damage meant under 8.4 is limited to direct damage. Indirect damage will not be indemnified. Direct damage consists of:
1. Damage to software, equipment, and data files of the aggrieved party;
2. Reasonable costs incurred in avoiding or reducing direct costs;
3. Reasonable costs incurred in assessing direct damage.
8.6 Any damage claim shall be filed with the other party within 3 months after the damage occurred. Any claims submitted after this period can be rejected. After notification, the liable party shall be granted a period of 30 days to perform the necessary repair activities.
8.7 Licensors liability is limited to the amount paid by the licensee for purchase of the software or one year’s rental fee if the software has been rented.
Article 9. Proprietary Rights and User Rights
9.1 All rights regarding property, copyrights, patents and others pertaining to Netpresenter Software, customized software and artwork rest with Licensor, barring the agreed user right.
9.2 Sublicensing to any third party by the Licensee is not allowed.
Article 10. Safeguarding
10.1 Parties safeguard each other against any claims from third parties regarding infringement of any rights of property, copyrights, user rights, or any other third party rights, with respect to the products used and or produced under this Agreement, such as software, software documentation, drawings, schemes, functional and technical designs, and any other documentation, when the defaulting party is promptly served notice in writing of any such claims by the other party
10.2 If it is determined, both judicially and extra judicially, that use of one of the products described under 10.1 infringes on any right, through which Licensee’s user right will be withdrawn, Licensor shall for his account and to his discretion either:
1. Obtain the corresponding right for Licensee to continue using the products;
2. Substitute the infringing products with others that do not infringe;
3. Modify the products to such extent that they no longer infringe;
4. Accept return shipment of the infringing products on terms to be agreed by parties.
Modification or substitution cannot lead to any restriction in the usage of the products by Licensee, unless Licensee agrees with such restrictions. Licensee shall not reject such agreement on unreasonable grounds.
10.3 Licensor will not accept any liability or claims regarding infringement of any rights caused by the use of the products in a fashion for which it has not been developed.
10.4 Safeguarding as meant under 10.1 applies under the reservation that the aggrieved party does not give any written or oral statement, any promises, recognize any rights or facts, bind or commit himself to such arrangements towards the third party, claiming the infringement, without the prior written permission of the Licensor. The aforementioned does not apply to statements that should be submitted by or on behalf of a party as a witness in legal proceedings.
10.5 Licensee acknowledges its sole responsibility for any content that is uploaded onto and/or distributed via Netpresenter Software in the course of its exercise of rights under this Agreement. Licensee fully indemnifies Licensor against any and all claims, costs, proceedings, demands, losses, damages, expenses (including legal and other professional expenses) and/or liabilities whatsoever arising directly and/or indirectly from its use of the Netpresenter Software, including, without limitation, any breach or alleged breach of copyrights and/or infringement of device marks, trademarks, domain names, images and/or any other intellectual property and interests owned and/or represented by third parties, including but not limited to YouTube.
10.6 Licensee fully indemnifies Licensor against any and all claims, costs, proceedings, demands, losses, damages, expenses (including legal and other professional expenses) and/or liabilities whatsoever arising directly and/or indirectly from its use of the Netpresenter Software as an emergency alert system. Licensee acknowledges its sole responsibility to regularly ensure the due performance of Netpresenter Software in case of emergencies.
Article 11. Transfer of Rights and Obligations
11.1 Parties are not allowed to transfer any rights and obligations derived from this Agreement to third parties, barring prior written consent of the other party, which cannot be rejected on unreasonable grounds.
Article 12. Force Majeure
12.1 In the event of force majeure, compliance by the corresponding party with the obligations derived from this Agreement shall partially or fully be suspended for the duration of such force majeure, without either party being held to any indemnification. In case of any occurrence of force majeure, the other party shall be notified hereof and presented with the necessary documentation evidencing the occurrence.
12.2 Force majeure does not include non-compliance or late compliance by a third party with the obligations held by this third party towards one of the parties, unless this has been agreed otherwise or unless the corresponding party is able to prove that non-compliance or late compliance with the obligation is due to force majeure.
12.3 Force majeure does in no event refer to: staff shortage, strikes, sick leaves, late supplies or defective material, any Shortcomings on the part of a third party contracted by one of the parties, or insolvency.
12.4 In case of force majeure, the final delivery date of the Netpresenter Software shall be extended with the duration of the force majeure.
Article 13. Secrecy
13.1 Parties declare to keep confidential all information that has come to their knowledge before and during execution of the agreements and that has been declared of a confidential or secret nature or information that parties should have known to be confidential or secret.
13.2 Licensee shall maintain strict secrecy regarding any information about the setup, structure, and internal operations of the Netpresenter Software.
13.3 Barring prior written permission by the other party, neither party shall divulge any information that has emerged during the execution of this Agreement to any third parties.
Article 14. Termination
14.1 Either party is entitled to dissolve this Agreement extrajudicially by means of a registered notification if the defaulting party fails to meet his obligations under this Agreement even after the reasonable term specified in Article 8 following the notification of default.
14.2 Parties are entitled, without any further notice, to dissolve this Agreement extrajudicially by means of a registered notification if the other party has been granted (provisional) suspension of payment, files for bankruptcy, or is declared bankrupt, the business of the other party is wound up or suspended, a substantial part of the assets is garnished, or any other reasons why the party is no longer considered able to meet the obligations under this Agreement.
14.3 Licensee is entitled without any further notice to dissolve this Agreement extrajudicially by means of a registered letter if Licensor severely defaults on his obligations.
14.4 Each of the parties is entitled to dissolve this Agreement extrajudicially by means of a registered letter if the other party appeals to force majeure and the corresponding term has exceeded a period of one month, or if it is determined that this term will exceed the period of one month.
14.5 Termination does not have retroactive effect.
Article 15. General
15.1 Licensee’s General Purchase and Payment Conditions as well as any other general or specific conditions are not applicable if not agreed otherwise.
15.2 Modifications or amendments to this Agreement are only applicable if such is agreed in writing.
15.3 The Agreement, including the annexes mentioned in the Agreement, is the only true representation of the agreement between both parties regarding the purchase of Netpresenter Software.
15.4 Licensee agrees to comply to any national and international regulatory requirement including privacy regulations.
15.5 This Agreement, to which these General License Terms apply, is subject to the laws of the Netherlands. Both parties agree that the court of Maastricht, The Netherlands shall have the exclusive jurisdiction to settle any disputes, which may arise in connection with this agreement.
Article 16. Arbitration
16.1 Each dispute arising from the drafting, the interpretation, or execution of this Agreement, as well as any other dispute related to this Agreement, either legal or factual, shall without exception be settled before the competent judge in Maastricht.
16.2 Parties may agree that a dispute as understood in the previous Section, may be subject to arbitration in accordance with a special agreement between the parties or that a binding advice herein should be requested.
16.3 A dispute exists if one of the parties has notified the other party in writing that a dispute has occurred, accompanied with a summary account of the disputes and their reasons.