End-User License Agreement (“Agreement”)

NOTE :

This agreement applies to the following products:

  • Graphileon BYOL AWS

Updated on May 18th, 2020

Please read this End-User License Agreement (“Agreement”) carefully before using the Graphileon BYOL AWS software as made available through AWS Marketplace (“Software”).

This Agreement is a legal agreement between the Licensee and Graphileon B.V. and it governs the use of the Software.

By using the Software, the Licensee agrees to be bound by the terms and conditions of this Agreement. If the Licensee does not agree to the terms of this Agreement, the Licensee is not allowed to use the Software.

1. Definitions

In this Agreement, except to the extent expressly provided otherwise:
“Agreement” means this agreement including any Schedules and any amendments to this Agreement;
Business Day” means any weekday other than a bank or public holiday in the Netherlands;
“Business Hours” means the hours of 09:00 to 17:00 CET on a Business Day;
“Charges” means the following amounts:
(a) the amounts specified in the License Information; and
(b) such amounts as may be agreed by the parties in writing;
“Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;
Start Date” means the start date as mentioned in the Licence Information;
Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs);
“Licensee” means the individual or legal entity mentioned as “Licensee” in the License information.
“License Information” means the document specifying the name of the Licensee, the Charges, the start and end date of the licence period, the limitations in terms of the number of users, dashboards, application stores, graphileons or otherwise, and which includes the Licence Key.
License key” means the key that has to be entered into the Application in order to activate the license.
“Minimum Term” means, in respect of this Agreement, the period of 12 months beginning on the Effective Date;
“Schedule” means any schedule attached to the main body of this Agreement;
“Software” means the Application “Graphileon BYOL AWS” as it is made available to the Licensee through the AWS Marketplace, in machine readable, object code form, and any computer programs delivered by Licensor to Licensee in machine readable, object code form as Maintenance Releases and Product Releases;
“Software Defect” means a defect, error or bug in the Software having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Licensee or any person authorised by the Licensee to use the Software;
(b) any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;
(c) a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2.

2. Term

2.1 This Agreement shall come into force on the Start Date.
2.2 This Agreement shall continue in force until the End Date, at the end of which this Agreement will be extended tacitly with a period of one calendar year unless terminated in accordance with Clause 10 or any other provision of this Agreement.
2.3. In case of an extension according to Clause 2.2, Licensor will invoice Licensee according to the charges that are set out in the License Information.

3. Supply of Software

3.1 The Licensor shall make the Software available to the Licensee during the whole of the period between the Start Date and End Date, and shall provide to the Licensee such assistance in relation to the activation of the Software as the Licensee may reasonably request.

4. License

Graphileon B.V. grants you a revocable, non-transferable, limited license to use the Application strictly in within the limitations that are derived from the license key that is provided by Graphileon B.V, in its capacity of sub-licensor of the Software of which the intellectual property is exclusively owned by Ipileon B.V.

Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any license granted under this Clause 4 shall be subject to the following prohibitions:
(a) the Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
(b) the Licensee must not alter, edit or adapt the Software; and
(c) the Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer the Software.

5. No assignment of Intellectual Property Rights

5.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.

6. Charges

6.1 The Licensee shall pay the Charges to the Licensor in accordance with this Agreement.
6.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value-added taxes, which will be added to those amounts and payable by the Licensee to the Licensor.

7. Payments

7.1 The Licensor shall issue invoices for the Charges to the Licensee on or after the invoicing dates set out in the License Information.
7.2 The Licensee must pay the Charges to the Licensor within the period of 30 days following the issue of an invoice in accordance with this Clause.
7.3 The Licensee must pay the Charges by bank transfer or cheque, using the payment details as are notified by the Licensor to the Licensee.
7.4 If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may:
(a) charge the Licensee interest on the overdue amount at the rate of 8% per annum above the base rate of De Nederlandsche Bank;

8. Warranties and limitations thereof

8.1 The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
8.2 The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
8.3 The Licensor warrants to the Licensee that:
(a) the Software is supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
(b) the Software incorporates security features reflecting the requirements of good industry practice.
8.4 The Software is provided to you “as is” and “as available” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Licensor, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.
Without limitation to the foregoing, the Licensor provides no warranty or undertaking, and makes no representation of any kind that the Software will meet Licensee’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error-free or that any errors or defects can or will be corrected;
8.5 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Licensor may, acting reasonably and at its own cost and expense, procure for the Licensee the right to use the Software in accordance with this Agreement.
8.6 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

9. Limitations and exclusions of liability

9.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in this Agreement:
(a) are subject to Clause 9.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
9.3 Notwithstanding any damages that Licensee might incur, the entire liability of either party under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the yearly Charges actually paid by Licensee for the use of Software.
9.4 To the maximum extent permitted by applicable law, in no event shall either party be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, for loss of data or other information, for business interruption, for personal injury, for loss of privacy arising out of or in any way related to the use of or inability to use the Software, third-party software and/or third-party hardware used with the Software, or otherwise in connection with any provision of this Agreement), even if a party has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

10. Termination

10.1 The Licensor may terminate this Agreement by giving to the Licensee not less than 30 days’ written notice of termination after the end of the Minimum Term as indicated in the License  Information.
10.2 The Licensee may terminate this Agreement by giving to the Licensor not less than 30 days’ written notice of termination after the end of the Minimum Term as indicated in the License  Information.
10.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of this Agreement, and the breach is not remediable;
(b) the other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 21 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
10.4 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:

(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);
10.5 The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:
(a) any amount due to be paid by the Licensee to the Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 10.5.

11. Effects of termination

11.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have an effect, save that the following provisions of this Agreement shall survive and continue to have an effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 7.4, 9, 11, 13 and 14.
11.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
11.3 For the avoidance of doubt, the licenses of the Software in this Agreement shall terminate upon the termination of this Agreement; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this Agreement.
11.4 Within 10 Business Days following the termination of this Agreement, the Licensee shall irrevocably deactivate and remove all installations and instances of the Software from physical or virtual computer systems, and if the Licensor so requests the Licensee shall procure that a legal representative of the Licensee certifies to the Licensor, in a written document signed by that representative and provided to the Licensor within 5 Business Days following the receipt of the Licensor’s request, that the Licensee has fully complied with the requirements of this Clause 11.4.

12. Notices

12.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 12.2):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
12.2 The parties’ contact details for notices under this Clause 12 are set out in the License Information.
12.3 The addressee and contact details set out in Clause 12.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 12.

13. General

13.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
13.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
13.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
13.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
13.5 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
13.6 Subject to Clause 9.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
13.7 This Agreement shall be governed by and construed in accordance with Dutch law.
13.8 The courts of the United States shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

14. Interpretation

14.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
14.2 The Clause headings do not affect the interpretation of this Agreement.
14.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.