OPTION GENERAL
SOFTWARE END USER LICENSE TERMS
OPTION is a brand of Crescent NV and all OPTION related activities are part of Crescent NV.
These license terms are an agreement between Crescent NV, Gaston Geenslaan 14, 3001 Heverlee (Belgium) (hereafter “OPTION”) and you (hereafter “End User”). These terms (the “Agreement”) apply to all OPTION Software (including firmware), which includes the media on which the End User received it, if any. The terms also apply to any OPTION: updates, supplements, internet-based services, and support services for this Software, unless other terms accompany those items. If so, the latter terms apply.
By using the Software, the End User accepts all the terms of the entire agreement (general terms and specific end user license terms). If you as End User do not accept them, do not use the Software.
If the End User complies with these license terms, End User will have the rights below:
- INSTALLATION AND USE RIGHTS. End User may install (when applicable) and use the Software.
- INTERNET-BASED SERVICES. To the extent OPTION provides Internet-based services with the Software; it may change or cancel them at any time provided OPTION provides reasonable prior written notice to End User.
- SCOPE OF LICENSE. The Software is licensed, not sold. This Agreement only gives End User particular rights to use the Software, as described in this Agreement. OPTION reserves all other rights. Unless applicable law gives End User more rights despite this limitation, End User may use the Software only as expressly permitted in this Agreement. In doing so, End User must comply with any technical limitations in the software that only allow End User to use it in certain ways. End User may not:
- work around any technical limitations in the Software;
- reverse engineer, decompile or disassemble the Software, except and only to the extent that applicable law expressly permits, despite this limitation;
- publish the Software for others to copy;
- rent, lease or lend the Software;
- transfer the Software or this Agreement to any third party unless in connection with a sale of all or substantial amount of End User’s assets, a merger, or a reorganization; or
- use the Software for commercial Software hosting services.
- BACKUP COPY. End User may make (when applicable) one backup copy of the Software. End User may use it only to reinstall the Software.
- Any person that has valid access may copy and use the documentation for solely and exclusively internal, reference purposes of End User.
- TRANSFER TO ANOTHER DEVICE. End User may uninstall the Software and install it on another device for its own use (when applicable).
- SUPPORT SERVICES. Because this Software is “as is,” we may not provide support services for it.
- ENTIRE AGREEMENT. This Agreement (general terms and specific end user license agreement terms), and the terms for supplements, updates, Internet-based services and support services that End User uses, are the entire agreement for the Software and support services.
- APPLICABLE LAW. For companies outside the US, this Agreement will be governed by the laws of Belgium and the Courts competent over the registered office of OPTION (CRESCENT NV) will have exclusive jurisdiction in case of disputes. For companies in the US, this Agreement will be governed by the laws of the State of New York and the venue for any dispute arising out of this Agreement shall be the federal or state courts in the State of New York.
- OPTION warrants that the Software will conform to and perform in accordance with the documentation provided by OPTION relating to the Software, OPTION and the Software will comply with all applicable laws, and that the Software will not contain or introduce into End User’s network, system, hardware, software, or equipment any virus, worm, malware, disabling code, or other malicious code barring situations of force majeure Except as otherwise provided herein OPTION gives no express warranties, guarantees or conditions. OPTION excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
- LIMITATION OF LIABILITY.
The liability for everything that is covered by this Agreement is governed by the terms and conditions of this Agreement.
Other than with respect to OPTION’s indemnification obligations under this Agreement, whatever the cause, form or subject of the liability claim or whether the reasons for it are contractual or non-contractual, the liability of OPTION for any claim is limited to a maximum amount of $125.000 USD.
Under no circumstance will OPTION or End User be liable, either towards the other Party, or indirectly towards third parties, for damages that are not the direct, or immediate consequence of the failure to meet its obligations, even if Parties have been informed in advance of the possibility of such damage, losses or claims. Consequently, the following will be excluded from compensation: any financial or commercial damage, such as loss of earnings, increase in overheads, disruption of schedule, loss of use of or loss of or damage to data, work stoppage, computer failure or malfunction, loss of clients or savings, loss of good-will, cost of procurement of substitute goods or services, and, other than with respect to indemnification obligations, third-party claims.
In case the Software (and possibly accompanying sensors) are used for safety and/or security purposes, It is the sole responsibility of the End-User to configure the Software and the accompanying sensors according to the safety and/or security regulations and laws of the country where the Software and the sensors are used for safety and/or security purposes.
End-User must test the Software and the sensors extensively in all situations and use cases and configure the Software (and the sensors) for safe use before going in production with the final configuration of the sensors and the Software.
The End-User is responsible for informing all persons that need to know about the instructions of use and about the limitations of the sensors and the Software for use in safety and/or security purposes.
OPTION WMW SOFTWARE SPECIFIC END USER LICENSE TERMS
Between CRESCENT NV, a company incorporated under the laws of Belgium with registered seat at Gaston Geenslaan 14, B3001 Leuven, with enterprise number BE 0429.375.448
(hereinafter referred to as “Company”).
And the End-User
may individually be referred to as a “Party” and jointly as the “Parties”.
PREAMBLE
Whereas, the Parties would like to formalize the terms and conditions of their commercial relationship in the present Agreement.
NOW, THEREFORE, in consideration of the mutual agreement and covenants contained herein, it is mutually agreed between the Parties as follows:
- Definitions
When used in this Agreement with a capital letter:
1.1. “Account” means the database of deliverables, online available to the End-User, created by the End-User and displaying the results of the performance of the Software. To be able to use the Software, the End-User must create an account with the Company for the End-User, which will be activated by the Company as soon as all the Prerequisites have been met;
1.2. “Agreement” means this Software Specific End User License agreement as executed by and between the Company and the End-User along with the General Software End User License Terms;
1.4. “Company Marks” means Company’s trademarks, service marks, logos, and trade names, whether registered or not and all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
1.5. “Confidential Information” means all information disclosed between the Parties, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Parties agrees that the Company’s Services, the Documentation and this Agreement shall be deemed Confidential Information without any marking or further designation.
1.6. “Documentation” means the (online) user guides, documentation and help and training materials, as updated from time to time and made available by Company to End-User;
1.7. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, copyrightable or mask work rights, neighboring rights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, rights to know-how and trade secrets, and industrial property rights; (e) layout design rights, design rights, topographic rights; (f) Internet domain names; (g) rights to software and computer software programs (including but not limited to source code and object code), rights to data, database sui generis right and documentation thereof; and other proprietary rights of every kind and nature and (h) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
1.8. “Platform” means the WMW registration and information hub of the Company in a Software as a Service (SaaS) mode, which consist of a smart data platform and which more in particular includes the Software, (the use of) the online web-based applications, and the smart data platform, as provided by the Company. The URL to access the Platform will be provided by the Company in writing to End-User after the Effective Date;
1.9. “Prerequisites” means all the information that Company needs regarding an End-User before an Account can be created (see definition “Account” for more context). Company will provide End-User in writing with a list of the required information;
1.10. “Software” means the software (in both source and object code form) and the software programs and any associated user interfaces and related technology that Company makes available pursuant to its Website and Platform and which relates to the Software. Software shall include all modules, applications, routines and sub routines thereof and all source and other preparatory materials relating thereto, including user requirements, functional specifications and programming specifications, ideas, principles, algorithms, flow charts, logic, logic diagrams, orthographic representations, file structures, coding sheets, coding and including any relevant manuals or other documentation and computer generated works and any other written, pictorial or graphic materials;
1.11. “End-User” means the end-user which is a company or legal entity who has purchased a (licensed) right to use the Software by entering into an EULA and for whom an Account has been created and its affiliates;
1.12. “Term” means the term of this Agreement as specified in Article 7 of this Agreement;
1.13. “Website” means the Company’s website, available at www.option.com
1.14 “Effective Date” means the moment the End-User starts using the Software
- License And Limitations
2.1. Appointment.
Company hereby appoints End-User, and End-User hereby accepts the appointment, as Company’s non-exclusive End-User of the Software.
2.2. Grant of rights.
During the term of this Agreement and subject to the terms and conditions herein and with respect to this Software only, Company grants and End-User accepts a personal, limited, non-exclusive, non-transferable (other than – on condition of prior written agreement of the Company – in connection with the sale of all or substantially all of End User’s assets, a merger, or reorganization), revocable (subject to the terms of this Agreement) license to install, access, and use the Software and access and use the Platform and software and SaaS thereon.
Notwithstanding the foregoing, nothing provided in this Agreement permits End-User to, nor allows an End-User to: (a) decompile, disassemble, reverse engineer the Software; (b) use the Website, Platform and the Software in any manner that extends or is broader than the license terms and conditions granted herein
2.3. No Advertising and reference by the Parties.
The Parties may not refer to or identify the other Party in any advertising or publicity releases or promotional or marketing correspondence to third parties unless prior written consent of the other Party.
2.4. Modifications and upgrades.
As set out in the License Agreement, the Company retains the right, in its sole discretion, to upgrade or modify the Software and Documentation pertaining thereto from time to time.
2.5. Limitations.
No provision of this Agreement shall be interpreted as preventing, restricting or otherwise interfering with the ability of the Company to directly or indirectly market, promote, distribute, license or otherwise exploit all or any aspect of the Platform, the Software, the Website or Services in any manner whatsoever. The Company may thus, in its sole discretion, and without obligation, notice or liability to End-User, appoint other End-Users, distributors, licensees, representatives or agents. The Company reserves all rights not expressly granted to End-User by this Agreement.
- Obligations Of End-User
3.1. General Obligations.
The End-User acknowledges and agrees that every license is personal and may not directly or indirectly be shared among other End-Users for concurrent or non-concurrent usage.
3.2. Service delivery.
End-User will adhere to the following rules:
– Bugs and improvements: End-User undertakes to use Company’s Website as the only valid channel to report bugs and improvement requests.
– Outsourcing work to Company: expertise and outsourcing of work can be delivered by Company to End-User on a time & material basis. Travel costs incurred by Company are always billed separately and must be pre-approved in writing by End User. It is understood that Company cannot guarantee the availability of resources when asked by End-User.
3.3. Data Protection.
Both Parties are aware of the importance of data protection, the need to take the appropriate technical and organizational measures and to comply with any applicable data protection laws. If requested by End-User, the Parties will enter into a Data Processing Agreement to govern the processing of personal data, as applicable.
3.4. Sales and Orders.
Parties expressly agree that for each License Agreement, the End-User will be invoiced. In the event the Company has the intention of amending its prices, it shall notify the End-User thereof in advance of the application of the amended pricing. The new price policy will also be published on the Company’s Website. The new prices take effect at the earliest ten (10) Business Days after End-User was notified, unless the policy itself specifies a different date (which cannot be shorter than ten (10) Business Days).
For the sake of avoiding any misunderstanding, the right of Company to amend its prices not only includes the right to amend its pricing but also the right to change pricing and invoicing models.
The purchase (right to use) and delivery of the Software shall only occur (i) pursuant to a Sales Order, signed and submitted by End-User to the Company and accepted by the Company (which the Company shall not unreasonably withhold) (ii) pursuant to a License Agreement duly signed between the Company and the End-User and (iii) upon receipt of End-User’s payment due under the License Agreement before activation. No Sales Order shall be binding on the Company unless accepted.
Once a Sales Order has been accepted by Company, Company does not have any obligation to take back or cancel licenses or services, nor to provide any credit note.
3.4. Representations.
End-User shall not, under any circumstances, make any representations or warranties to any person or entity that are (i) inconsistent with or (ii) in addition to the warranties and representations contained in the License Agreement.
3.5. Payment.
End-User shall be responsible for paying the mutually agreed fees to the Company.
- Support
4.1. The Company shall use its best efforts to answer any question or resolve bugs. The Company makes no express warranties or representations with respect to its support services. Unless otherwise agreed to by Company in writing, the Parties expressly agree that the Company never commits to any resolution times. The support services offered by the Company constitute a best-efforts undertaking.
- Confidentiality
5.1. Each Party agrees that it will not use in any way for its own account or the account of any third party, any Confidential Information, except that each Party may use the Confidential Information to perform its obligations or exercise its rights under this Agreement, and will take reasonable steps to protect the confidentiality of such information. By reasonable steps is understood those steps the receiving party takes to protect its own similar Confidential Information, but which shall not be less than reasonable care.
5.2. Such use and non-disclosure obligations shall not apply to information which (a) was already rightfully known to the Party prior to disclosure by the other Party hereunder; (b) became part of the public domain after its disclosure or was part of the state of the art at the time of disclosure, provided, in both cases, that this was not the result of a violation of a confidentiality obligation with respect to the party that transmitted the Confidential Information; (c) has been rightfully received from a third party not under obligation of confidentiality; (d) has been approved for release by written authorization; (e) was independently developed by a Party without the use of the Confidential Information; or (f) is required to be disclosed by law or court or administrative decision.
5.3. Each Party receiving Confidential Information from the other Party agrees that such Confidential Information remains, in any event, the property of the communicating party.
- Intellectual property
6.1. Clear Digital NV a company incorporated under the laws of Belgium with registered seat at Langveldstraat 51, 3500 Hasselt (Belgium), exclusively owns and retains all right, title, interest in and to, and ownership of all Intellectual Property Rights in or pertaining to the Company Marks, the Platform, the Software and all the Documentation and materials pertaining or relating thereto (including any copies and portions thereof), whether in machine readable or printed form, including, without limitation, (i) all software, documentation and materials which are related to the Software, the Platform, and any Documentation, (ii) all modifications to, and derivative works, compilations or collective works of, Software and Documentation, and (iii) all related technical know-how and all rights (including Intellectual Property Rights) therein. End-User agrees to observe the proprietary nature of Software and Documentation. End-User may not copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce Software and Documentation or any part of them except as expressly provided in this Agreement.
6.2. Parties explicitly state that this Agreement does not lead to any transfer of intellectual or material ownership or user’s rights on software, documents, technical and commercial information and/or knowledge shared. The software, documents and information given to the other Party can only be used for the purpose of fulfilment of this Agreement and must be returned upon termination of this Agreement at the latest. Any material of this kind that would otherwise be sold by Company may not be resold free of charge without formal prior written permission of Company.
- Term And Termination
7.1. Term.
This Agreement is effective from the Effective Date and shall continue as long as End User uses the Software, or until termination under Section 7.2 or 7.3 below.
7.2. Serious cause.
The whole or any part of this Agreement may be terminated by the Company in the event that (i) the End-User seriously breaches any of its contractual obligations, and/or (ii) in case the End-User has suspended payments, is bankrupt, has requested a voluntary liquidation or is in any situation of collective settlement.
7.3. The Parties may terminate this Agreement at any time without cause upon 30 days’ written notice.
7.4. Notwithstanding any termination of this Agreement, the provisions of this Agreement that by their nature should survive the termination, shall survive the termination of this Agreement.
- Indemnities And Liabilities
8.1. Warranty.
Company warrants that the Software will conform to and perform in accordance with the Documentation, Company and the Software will comply with all applicable laws, and that the Software will not contain or introduce into End User’s network, system, hardware, software, or equipment any virus, worm, malware, disabling code, or other malicious code. Except as otherwise provided in this Agreement, Company gives no express warranties, guarantees or conditions. End-User may have additional consumer rights under local laws which this Agreement cannot change. To the extent permitted under your local laws, the Company excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
8.2. Indemnification.
End-User shall indemnify, defend and hold harmless the Company, its officers, directors and employees (collectively, the “Company’s Indemnitees”) at End-User’s expense, against any third-party claims, liabilities, damages, costs and expenses, to the extent arising from a breach of this Agreement by End-User.
Company shall indemnify, defend and hold harmless End User and its officers, directors, and employees at Company’s expense against any third-party claims, liabilities, damages, costs, and expenses to the extent arising from (1) a breach of this Agreement by Company or (2) an allegation that the Software infringes, misappropriates, or otherwise violates any Intellectual Property Right.
- Miscellaneous
9.1. Assignment.
End-User may not assign this Agreement or any rights or obligations hereunder, by either operation of law or otherwise, without the prior written consent of the Company except as, part of the sale of all or substantially all of its assets or as part of a merger or reorganization.
9.2. Notices.
All notices, consent forms and other communications that must be or may be sent between the Parties under this Agreement shall be in writing, sent to the Website. Notices shall be deemed effective upon receipt.
9.3. Severability.
Should part of this Agreement be declared invalid, then this shall not affect the validity of this Agreement as a whole. On the contrary, Parties or, in case of litigation, the court settling the dispute, shall attempt in good faith to substitute the invalid part with a valid part which would make it possible for Parties to achieve the objectives pursued.
9.4. Force Majeure.
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, pandemic, war, embargo, strike, riot, terrorism, or the intervention of any governmental authority (a “Force Majeure”). End-User shall not be required to pay for use of the Software during any period of time when Software is not available to use due to a Force Majeure event, in the event such period exceeds 5 working days.
9.5. Headings.
The headings of this Agreement are for convenience only, and shall not in any way limit or affect the meaning or interpretation of any terms hereof.
9.6. Waiver.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. If either Party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement.
9.7. Entire Agreement.
This Agreement sets forth the entire agreement between the Parties with respect to the subject matter hereof and completely supersedes and replaces any and all prior or contemporaneous proposals, communications, statements, agreements, understandings and representations between the Parties, whether written or oral, concerning the subject matter hereof.