Terms and conditions Icologiq software
- Supplier: Icologiq B.V., based in Enschede on Zuiderval 72 (7543 EZ) and registered in the Trade Register of the Chamber of Commerce under number 06054863, which provides the Icologiq Software;
- Customer: the party with which the Supplier has concluded an agreement by signing the Contract concerning the delivery of the Software by the Supplier;
- The Contract: the document in which the agreement concluded between the Supplier and the Customer for the delivery of the Software, has been captured, potentially signed by both parties: Contract, quotation, software order form, consultancy order form, project plan, service level agreement or any other document or letter of agreement in which agreements are confirmed;
- Documentation: the description of the features and options of Icologiq Software made available to you by the Supplier in any form, potentially in electronic format;
- Authorised User: The Customer, its authorised employees and any agents or contractors (with regard to the provisions on contractors in the article on Protection of Property Rights) who use the Software during their work for the Customer;
- Location: the specific location or locations as described in the Contract where the server with the Icologiq Software is located;
- Software: the versions of the software of the Supplier as described in the Contract, as well as the associated documentation as provided by the Supplier, including all Minor Releases and Major Releases that can be delivered to the Customer at the discretion of the Icologiq when the Customer has concluded a Contract with the Supplier;
- Major Release: a Software Release which contains new functional modules and/or large functional and/or technical improvements of and/or expansions to existing functional modules. A Major Release is indicated by a change in the Release number, for example from 1.1. to 2.0;
- Minor Release: a Software Release which contains less extensive functional and/or technical improvements of and expansions to existing functional modules. A Minor is indicated by a change in the Release number, for example from 1.1. to 1.2;
2. General Provisions
2.2 By signing a contract for the delivery of Icologiq Software, hereinafter referred to as “the Contract”, the Customer declares to have received, read and understood these conditions and to agree to be bound by the provisions therein. The Customer also declares that these conditions are part of the entire agreement between the parties and replace all verbal or written proposals, all prior negotiations and all other communication between the parties in relation to the subject thereof. Provisions in purchase orders or other documents provided by the Customer that are an addition to or in conflict with the provisions of these conditions do not bind the Supplier and do not apply.
2.4 The applicability of any general (purchase) conditions of the Customer is explicitly rejected.
3. Scope of the license
3.1 On the condition that the Customer:
- has paid the license fees as set out in the Contract,
the Supplier grants the Customer a non-exclusive, non-transferable cancellable license for the use of the Software or service by the authorised users. The license is granted only for internal business purposes and without the right to grant sublicenses. With the license, the Customer may provide the Software or service to the authorised users, as long as the number of authorised users does not exceed the number of usage licences purchased by the Customer and captured in the Contract. For the installation and use of the Software, the system of the Customer must be located at the location specified in the Contract. The system must also meet the system requirements of Icologiq as set out in the Contract or the provided documents as adjusted at any time.
3.2 The Customer may not change, disassemble, decompile or reverse engineer the Software except to the extent allowed under applicable law. The Customer may not sell, rent, lease or sublicense the Software. The Customer may only copy the Software to make the number of copies set out in the Contract.
3.3 Copy as Backup:
By way of derogation from Article 3.2, the Customer may not copy (a part of) the Software, except for:
- one copy as a backup or as an archive copy;
The Customer agrees that the copyright and other proprietary notices in the Software shall be included in each copy.
3.4 Test license:
The Customer shall receive a test license as set out in the Contract on request. This Test License shall only be used by the Customer for the test environment of the Customer and not be used in the production environment.
The Supplier may at its own expense check the use of the Software by the Customer. Such inspection must take place during normal business hours at the offices of Customer and may not unreasonably interfere with the business operations of the Customer. If this inspection shows that the Customer has paid insufficient fees and/or costs to the Supplier, the Customer shall receive an invoice for the due fees based on the prices in effect at the moment the inspection is concluded. If the due fees amount to more than 5% of the paid fees or if the due costs amount to more than 5% of the paid costs, the Customer must compensate the Supplier for the reasonably incurred costs.
5. Indication of Ownership
The Customer agrees not to remove or destroy any indications of copyright, trademarks, other proprietary notices or labels of confidentiality or marks placed on the Software or included in the Software or any documents or materials related to it.
6. Intellectual Property
The Customer acknowledges and agrees that any rights, ownership and interests in and to the Software and any related property rights arising from the license granted under Article 2 shall exclusively belong to the Supplier.
7. Confidential Information
The Customer acknowledges that the Software contains information which is owned by the Supplier or its licensors and that this information is confidential and contains trade secrets. The Customer shall do all that is necessary to protect the property rights and to keep this information confidential and shall not disclose any information related to the Software to third parties, with the exception of the employees, agents and contractors of the Customer which must be aware of it and which are bound to a written non-disclosure obligation to the Customer in respect of such information. The Customer agrees that its contractors can only have access to the Software at the licensed location. The Customer also agrees that its contractors shall be considered its agents and that the Customer is liable for its contractors and its employees and agents in the same manner. The Customer must immediately inform the Supplier of any unauthorised use of the Software.
The Customer shall allow the Supplier to make the improvements proposed by the Customer to the Software or in commercial products derived from the Software without compensation and without reservation of property rights. The duty of confidentiality of the parties remains in force for a period of three years after the end of the Contract. The duty of confidentiality of the parties does not apply to information which:
- is or becomes public knowledge, other than through any act of omission of the other party;
- is already lawfully in the possession of the other party before the disclosure and has not been acquired directly or indirectly from the disclosing party;
- is lawfully disclosed to the other party by a third party without any restriction on its disclosure, or;
- has been developed independently by the other party without breach of any confidentiality duty. The Customer may not publish the results of benchmark tests that have been performed in relation to the Software.
The Supplier warrants that:
- that the Software materially operates in accordance with the Documentation, and
- that the data carriers which contain the Software, if they have been delivered by Icologiq, are free from material and implementation defects and shall remain so for sixty (60) days after the date of shipping.
The Supplier does not warrant that the Software meets the requirements of the Customers, or that it shall work without interruptions or is free of defects. The Customer acknowledges that use of the Software may lead to unexpected results, loss of data, delays in projects or other unpredictable damage or losses for the Customer. For a period of sixty (60) days after the date of delivery, the Customer has an exclusive right and the Supplier and the Licensors have the exclusive duty, resulting from a breach of these warranties, at the sole discretion: of the Supplier:
- to replace defect media of the Customer after they have been returned to the Supplier; or
- repair of the Software or provision of advice to the Customer how the same functionality can be achieved with the Software as described in the documentation, possibly by means of another procedure than set out in the documentation, or;
- if the above solutions cannot be achieved, the Supplier and the Customer shall discuss how to reach a solution which is acceptable to both parties.
Except as provided in this Article, the Supplier does not grant any other warranties. Except to the extent expressly provided in this Article, the Supplier has no liability towards the Customer or third parties for the Software or Services delivered under these conditions. No dealer, representative or employee of the Supplier shall be entitled to make changes, expansions or additions on the warranty or liability provisions as set out in these conditions.
9. Limitation of liability; exclusion of consequential damages
9.1 The Supplier shall only be liable for direct damages up to the amount of the annually stipulated fee (excl. VAT) for the Software. If the Software is used for less than one year, the overall liability of the Supplier in this regard shall be limited to the total fee paid to the Supplier. In no event shall the overall liability of the Supplier for direct damages, for whatever reason, be more than the amount paid by the insurer. Direct damages shall only mean:
– Reasonable costs incurred to establish the cause and extent of the damage, insofar as this determination relates to damages within the meaning of these conditions;
– Reasonable costs incurred to ensure that the faulty performance of the Supplier complies with the agreement, to the extent this can be attributed to this Supplier;
9.2 The Supplier shall never be liable for indirect damage, including but not limited to consequential damage, loss of revenue or profits, lost savings and damage due to business interruptions or other interruptions.
9.3 The above limitation of liability and limitation of certain types of damages is in effect regardless of the success or the effectiveness of other remedies. The limitations of liability under this Contract shall not apply to the extent that the damage is caused by the intent or gross negligence of the senior management of the Supplier.
These terms remain in full force and effect, except if the Supplier has the right to terminate the agreement to which these terms apply. This is the case if the Customer infringes on any material provision of these terms and fails to report and resolve this infringement within thirty (30) days after discovery. These terms will automatically terminate upon transfer of any copy of the Software by the Customer to any other party than the Customer, except if this is permitted by these terms. In addition to any other statutory recovery options, the Supplier has the right to terminate this Agreement in writing if the Customer ceases its business activities, is granted suspension of payment or requests bankruptcy or is declared bankrupt, concludes an agreement with its creditors, or if a trustee or another officer is assigned for (any part of) its assets. The rights and obligations of the parties pursuant to Articles 5 to 12 and 14 shall remain in effect after termination of the License. The Customer is required to immediately return or destroy the Software and other confidential information and all copies thereof upon termination of the License at its own expense and submit a signed “declaration of destruction” to Icologiq in which the Customer declares to have destroyed the Software and all copies thereof.
11. Payment and Fees
All fees shall be paid within fourteen (14) days after Customer has received an invoice from the Supplier. All prices exclude taxes related to the use, ownership, lease or licensing of the Software. If the Customer has a procedure as part of which an invoice must be submitted with a purchase order before payment can be made, the Customer is responsible for submitting the purchase order with the order. If the Customer fails to pay the due amounts within the payment period without valid reason communicated in writing, the Customer shall be in default without further written notice being required. From the date the Customer is in default, it is held to pay the statutory interest on the total due amount of the fees. All judicial and extra-judicial costs related to the collection of any claim shall be borne by the Customer.
The Customer is not allowed to transfer the Contract or any of its rights or obligations, to rent out the Software or grant a sublicense to it or otherwise dispose of it, without the express written prior permission of the Supplier. The Customer may, considering the existing obligations towards the Supplier, transfer its rights to a party which has acquired a majority interest in the ordinary share capital of the Customer, provided that:
- the acquiring entity is not a competitor of the Supplier, and;
- the acquiring entity declares to be bound by the terms of this Agreement in writing. The Supplier may at all times transfer or outsource the benefits or obligations under this Agreement.
Each of the party may publish that the Customer has purchased the products of the Supplier, and the Supplier may describe its work under this Agreement in its marketing materials in general, non-confidential terms. The Customer agrees that the Supplier within fourteen (14) days after the Customer places a purchase order for the Software may publish a press release to announce that it has concluded an agreement with the Customer for the license of the Icologiq products.
To the extent any law, treaty or regulation is in violation of the provisions of these terms as determined by a court, tribunal or other competent authority, the conflicting provisions of these terms shall be replaced, but only to the extent required under the provisions of this law, treaty or regulation. If any provision of these terms is otherwise unlawful, void or unenforceable for any reason, this provision shall be enforced as much as possible in order to realise the intentions of the parties. In both cases, the other provisions of these terms shall remain in full force and effect.
13.3 Export Inspections
The Customer acknowledges that it uses the export inspections of the American Export Administration Regulations and the applicable export inspections of the state or the country in which the Customer is located and/or uses the Software with respect to the Software of the Supplier, the Documentation and all technical information, documents and materials. The Customer
- fully complies with all legal requirements established under these inspections;
- grants its full cooperation to the Supplier in case of any official or unofficial audits or inspections related to these inspections, and;
- refrains from exporting, re-exporting, transferring, changing destinations, directly or indirectly, of stated components or direct products, or grants access to the mentioned components or direct products from countries to which export is forbidden or countries with an embargo order of the American government, unless the Customer has been granted prior written permission from Icologiq, the appropriate agency of the US government and the applicable regulatory entity of the state or the country where the Customer is located and/or uses the Software.
The Supplier can amend this paragraph 13.3 with notice to the Customer to adjust it to changes in the American Export Administration Regulations and the applicable regulation of the state or the country where the Customer is located and/or uses the Software.
14.1 All notices of the Supplier must be sent to the address listed on the Contract or any other address specified by the Customer in writing to the Supplier within ten (10) days by registered mail.
14.2 Notices by the Supplier sent to the Customer are deemed to have been received:
- if handed over, immediately
- if made by registered mail, 3 business days after delivery,
- if made by express courier, on the next business day, or
- if made by fax, if the status of the fax machine indicates that the transmission was successful.
15. Paragraph designations
The paragraph designations (titles) used in these terms are only added for convenience and are not intended to restrict or affect the interpretation of any provision of these terms.
The parties declare to be fully authorised to conclude and implement an agreement with the Supplier and declare that the persons who sign the agreement are authorised and competent to conclude the agreement on behalf of the parties.
17. Governing law
17.1 All legal relationships between the Customer and the Supplier are exclusively governed by Dutch law.
17.2 Disputes between the Supplier and the Customer shall first exclusively be heard by the competent court in Overijssel, location Almelo, or – at the discretion of the Supplier – by any other court which is authorised to hear the dispute.