License

THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) IS EFFECTIVE FROM THE MOMENT YOU ACKNOWLEDGE TO BE IN AGREEMENT WITH THE CONTENTS IN THE MANNER AS DESCRIBED BELOW. THE AGREEMENT IS CONCLUDED BETWEEN XA DOCUMENT SOLUTIONS B.V. (hereinafter referred to as: “Supplier”), A DUTCH PRIVATE COMPANY WITH LIMITED LIABILITIES (BESLOTEN VENNOOTSCHAP), ESTABLISHED IN AMERSFOORT (THE NETHERLANDS), AND YOU OR THE COMPANY OR ORGANIZATION YOU REPRESENT (hereinafter referred to as: “Client”).

BEFORE READING AND AGREEING TO THIS LICENCE AGREEMENT, YOU HAVE TAKEN COGNISANCE OF THE SPECIFICATIONS OF THE DESIRED USER MODULE OF THE SOFTWARE PROGRAMME XA FLOW (hereinafter referred to as: the “Software”) AND HAVE MADE AN INFORMED CHOICE FROM THE AVAILABLE MODULES. YOUR CHOICE FOR THAT MODULE OF THIS SOFTWARE PROGRAMME AND THE PROVISION OF THIS MODULE BY MYMULTICHANNEL B.V. ARE GOVERNED BY THE TERMS OF THIS AGREEMENT.

ATTENTION: THE SUPPLIER FULLY RESERVES THE RIGHT TO CHANGE THE SOFTWARE AND/OR ITS USES FROM TIME TO TIME WITHOUT ADVANCE NOTIFICATION.

Article 1. LICENCE

1.1. The Supplier hereby grants the Client, and the Client hereby accepts, a limited, non-exclusive, non-transferable and non-sub-licencable right of use (hereinafter to be referred to as: “Licence”) to use the Software as long as the Client fulfils his obligations under this Agreement.

1.2. The Software is further specified as recorded in the digital account of the Client with the Supplier. In this Agreement, Software refers to this specified software.

1.3. The Software will be made available to the Client by means of an electronic download system, as soon as the Client has provided the complete data to the Supplier in the manner prescribed in his account and this registration has been accepted by the Supplier.

1.4. In addition, after the acceptance referred to in 1.3, the Client is granted access to digitally available documentation from the Supplier, who facilitates and supports the use of the Software during the Licence (hereinafter referred to as: “Documentation”).

1.5. In the Agreement, the Client is also understood to mean, insofar as required, any users authorised by the Client, which have been accepted by the Supplier.

1.6. XA-Flow (XAFlow) is a registered trade name of XA Document Solutions B.V., which refers to the Flowize software solution.

Article 2. CONDITION OF THE SOFTWARE

2.1 The Software is made available to the Client in the condition which the Software is in as standard for all users at the time of the conclusion of the Agreement, without any further obligation for the Supplier in respect of its operation and in respect of any errors and/or defects in the Software. The Client has no claim to warranty, relevant support for the above or any damages from the Supplier, except as provided for in this Agreement.

2.2 For the duration of the Agreement, the Supplier fully reserves the right to adapt, alter, improve and/or restrict the Software, in any manner whatsoever and whether or not due to errors and/or defects or new available technology, without the Client being entitled to compensation for any Licence fees already paid nor to claim damages. Although it is not an obligation, Supplier strives to inform Client as well as possible in advance about intended changes. To make changes, Supplier works with the OTAP methodology. OTAP stands for Development, Test, Acceptance and Production. These are the phases that are going through in developments or intended adjustments of the Software.

Article 3. DURATION OF THE AGREEMENT

3.1 The Agreement commences as soon as the Supplier has accepted the registration by the Client as described in Article 1.3. The Agreement will continue for the duration of the period as mentioned in the Client’s account with the Supplier (hereinafter referred to as: “Licence period”).

3.2 The Agreement will always be extended with the same Licence period, unless the Client has cancelled the Agreement before the end of the period in the manner as prescribed in his account with the Supplier or one of the situations in 3.3 has occurred.

3.3 The Supplier reserves the right to terminate the Agreement with immediate effect, in whole or in part, without notice, if the Client – whether or not 3 provisionally – has applied for a suspension of payment, if the Client is the subject of proceedings for bankruptcy, if the Client’s undertaking is wound up or terminated, or if the Client acts in breach of any obligation arising from the Agreement.

3.4 In the event of termination of the Agreement, the Client’s right to use the Software will end with immediate effect, without any prior notification of the Supplier being required.

Article 4. LICENCE FEE

4.1 For the licence, the Client is required to pay a fee payable in Euros, such as this applies during the Agreement for the Licence period to all users of the Software, and is also published on the Supplier’s website (hereinafter referred to as: “Licence fee”), increased with VAT and any other taxes and/or government levies, which the Supplier is required to charge. The Licence fee is also confirmed in the Client’s account.

4.2 The Licence fee with VAT and any other taxes and/or levies has to be received by the Supplier prior to the Licence period, failing which the Supplier is entitled to suspend the availability of the Software without prior warning or notification to the Client, or to terminate the Agreement with immediate effect in accordance with Article 3.3.

4.3 Insofar as any other taxes and/or levies are payable over the Licence fee in addition to VAT, these are entirely for the account of the Client and the Client is required to indemnify the Supplier.

ARTICLE 5. CONTENT OF THE LICENCE

5.1 The obligation to provide on the part of the Supplier and the Licence rights of the Client solely extend to the so-called object code of the Software. The Client’s Licence right does not extend to the source code of the Software.

5.2 The Licence also includes the provision of new versions of the Software during the Agreement. The provision of new versions to the Client takes place in a manner and at a time of the Supplier’s choosing. The Supplier can acquire the functionality from a previous version of the Software unchanged, but cannot guarantee that each new version contains the same functionality as the previous version of the Software.

5.3 Supplier provides the Software-as-a-Service, i.e. as an online service. Supplier is not required to install the Software on Client's infrastructure. Supplier is not responsible for the proper functioning of the infrastructure used by Client.

5.4 The Client himself is responsible for the management and the use of the Software. The Supplier is not required to carry out any data conversions for the Client or to replace or repair the Client’s data or data files. Furthermore, the Supplier cannot be forced to supply back-up, fall-back or recovery services.

5.5 The Supplier always reserves the right to take technical measures to protect the Software against unauthorised use and/or use in any other way or for purposes other than that provided for in the Agreement. The Client will never remove or have removed or bypass or have bypassed the technical facilities which are intended to protect the Software.

5.6 The Client can only use the Software in and for the benefit of his own undertaking or organisation, and only insofar as is necessary for the intended use. The Client will not use the Software for the benefit of third parties, for example in the framework of ‘Software-as-a-Service’ (SaaS) or ‘Outsourcing’. The Client is never allowed to sell, rent out, dispose of or grant limited rights to the Software or in any way, for any purpose and under any title place the Software at the disposal of a third party.

5.7 The parties have expressly agreed that the Agreement with the Software Licence granted to the Client will never be considered as a purchase agreement. The applicability of the Vienna Sales Convention of 1980 is expressly excluded, in accordance with the provisions of Article 13.1.

5.8 The Client will always strictly observe the agreed restrictions of any nature or content to the right to use the Software.

5.9 Any rights not expressly granted to the Client under the Agreement are reserved for the Supplier.

ARTICLE 6. INTELLECTUAL PROPERTY

6.1 All rights of intellectual property, including in particular copyright and trademark right to the Software, Documentation and other data and such information, concerning the Software, are exclusively vested in the Supplier, its licensors or its suppliers.

6.2 The Client will not remove or have removed or alter or have altered any indications with respect to the copyrights, brands, trade names of the Supplier or any other rights of intellectual property from the Software, Documentation or 5 otherwise, or use these in any manner for the performance of his own undertaking or own organisation.

6.3 Subject to statutory exceptions, the Client is not entitled to change the Software, in whole or in part, without the prior written consent of the Supplier. The Supplier reserves the right to refuse consent or set conditions.

ARTICLE 7. SUPPORT

7.1 During the Licence period, the Client can make use of support, as part of his choice of the Software and as further specified in his account with the Supplier. That Support is offered by the Supplier with the help of the Documentation.

7.2 For the duration of the Agreement, the Supplier fully reserves the right to adapt, alter, improve and/or restrict its support and/or the Documentation, in any manner whatsoever and whether or not due to errors and/or defects in the Software and/or Documentation, or because of new available technology regarding the Software or Documentation, without the Client being entitled to compensation for any Licence fees already paid nor to claim damages.

ARTICLE 8. HOSTING

8.1 The Licence will be exercised by the Client on disk space provided through the Supplier, for which the Supplier will offer hosting services to the Client.

8.2 The Client will not exceed the agreed disk space, as recorded in his account and associated with the Software. All use of the disk space, data traffic and other load on the systems and infrastructure is limited to the limits agreed with the Client. The data traffic that is not used by the Client in a Licence period will not be able to be used in the next Licence period. If the Client exceeds the limits, the Supplier will charge an additional fee in accordance with the rates applied by the Supplier.

8.3 The Client is responsible for the management, including control of the settings, the use of the hosting service, and the manner in which the results of the service are used.

8.4 The Client will at all times behave carefully and not unfairly towards third parties, in particular by respecting the intellectual property rights and other rights of third parties, respecting the privacy of third parties, not disseminating information contrary to the law, not obtaining unauthorised access to systems, not disseminating viruses or other malicious programmes or data and refraining from criminal offences and violations of any other legal obligations.

8.5 The Supplier can temporarily disable the hosting services, either fully or partly, for preventive, corrective or adaptive maintenance.

8.6 In order to avoid liability to third parties or to limit the consequences thereof, the Supplier reserves the right at all times to take measures in respect of an act or omission by or at the risk of the Client.

8.7 The Client is required to protect its systems and infrastructure in an adequate manner. The Client himself will regularly review the results of the services. The Supplier cannot be held responsible for checking the accuracy and completeness of the services.

8.8 The Supplier is not responsible for the recovery of lost data. The Client himself is responsible for the data that are processed by the Client using the hosting service.

ARTICLE 9. GUARANTEES

9.1 If and insofar as the functional or technical specifications of the Software in the Documentation are substantially not met by the Supplier, and this defect is reproducible with other users of the Software, the Supplier will use his best efforts to repair this defect within a reasonable period of time. The Supplier cannot be held to any other obligation regarding the manner in which the Agreement is implemented. The Supplier is especially not liable for direct or indirect consequences of such defects.

ARTICLE 10. FORCE MAJEURE

10.1 The Supplier is not obliged to fulfil any obligation if he is being impeded as a result of a circumstance which is not his fault and which cannot be attributed to him under the law, a legal act or according to generally accepted standards. Force majeure on the part of the Supplier is considered to include: (a) Force majeure of suppliers of the Supplier, (b) the non-fulfilment of obligations of suppliers of the Supplier, (c) inadequacy of items, equipment, software or materials of third parties, (d) government measures (e) power failures, (f) failures of the Internet, data network or telecommunications facilities, (g) war and (h) general transport problems.

10.2 In the event of force majeure, the Client is not entitled to terminate the Agreement or to claim damages.

ARTICLE 11. LIABILITY SUPPLIER

11.1 In the event of errors and/or defects in the Software, the liability of Supplier is limited to what is provided for in Article 9. In addition, at most, where appropriate, the total liability of supplier is limited to compensation for direct damage up to a maximum of 1,000,000 euros, excluding VAT and other charges/taxes.

11.2 The Supplier’s liability for indirect or consequential damages, lost profits, lost savings, reduced goodwill, such as damage due to business interruption, damage as a result of claims of customers of the Client, damage in connection with the use of items, materials or software of third parties, is expressly excluded. Also excluded is the Supplier’s liability relating to mutilation, destruction or loss of data, files or documents.

11.3 Precondition for any right to damages is at all times that the Client will notify the Supplier as soon as possible after the damage occurring. Each claim for damages against the Supplier will lapse when thirty days have passed after the occurrence of the claim.

ARTICLE 12. RELATIONSHIP BETWEEN PARTIES

12.1 The Agreement does not affect the independence of the Supplier and the Client in relation to each other. The Agreement is not aimed to achieve any type of partnership, agency structure or other form of cooperation, and also does not create an exclusive relationship other than provided for in the Agreement.

12.2 The Client is not allowed to transfer his rights and obligations under the Agreement to a third party other than with the written consent of the Supplier.

12.3 The Agreement together with the Client’s account with the Supplier comprises the whole of the Agreement between the Parties. All oral or written agreements made relating to the Software prior to the Agreement, in any form whatsoever, hereby lapse. Further agreements between the parties will always be governed by this Agreement. The General Conditions of the Client, either the terms of purchase or sale, do not apply, even though those conditions provide otherwise.

ARTICLE 13. APPLICABLE LAW/COMPETENT COURT

13.1 The Agreement shall be exclusively subject to Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (the ‘CISG’) does not apply. 13.2 The District Court Midden-Nederland (The Netherlands) has exclusive jurisdiction in respect of any disputes between the Client and the Supplier relating to the Agreement.

 

Version SLC_XA_Flow.2019.V1.0