Article 1: Definitions
1.1 Services: the entire work of Expivi for the implementation of this Agreement.
1.2 Fault: a defect in the Software that leads to the Software not functioning in accordance with the Specifications or otherwise, non-compliance of the Software with the License Agreement.
1.3 Defect: a fault in the Software that leads to the Software not functioning in accordance with the agreed Specifications or otherwise, non-compliance of the Software with the Agreement.
1.4 Incidents: an event that causes the Software not to function in accordance with the agreed Specifications or not to be available for use at the Location.
1.5 License Agreement: the agreement between Licensee and Expivi [or third party], on the basis of which, the Licensee obtains user rights for the Software.
1.6 New Version: a subsequent version of the Software with predominantly new or changed functionalities, whether or not released with a different name.
1.7 Support: the provision of assistance by employees in the case of Incidents, as well as advising on the use and functionality of the Software.
1.8 In Writing: the term ‘in writing’ also includes by email, fax or other electronic medium.
1.9 Website: www.expivi.com.
1.10 Specifications: a description of the functionality and operation of the Software in connection with the browser configuration.
1.11 Start date: the date the (main) contract was entered into.
1.12 Temporary License: time-limited, non-exclusive rights to use the Software. These user rights are granted by Expivi to the Licensee in exchange for payment of a periodic fee.
1.13 Update(s): a new release of the Software, in which previously known Defects have been removed and/or a limited improvement or expansion of the existing functionality has taken place.
Article 2: Services
2.1 From the Start Date, Expivi will make the Software available and keep it available for use in accordance with the License Agreement.
2.2 Expivi hereby grants the Licensee the Temporary License with regard to the Software as further described on the Website.
2.3 Expivi will provide Licensee with support in the application of the Service and possible problems encountered with it by Licensee’s employees.
3.1 The Temporary License has the following limitations:
1. The Licensee is not permitted to give the Software to third parties or to use it for third parties, unless agreed otherwise.
2. The Licensee is not permitted to change or modify the Software.
3. The Licensee is not permitted to reconstruct the source code of the Software by means of reverse engineering. If the Licensee requires information to effect interoperability of the Software with computer software of the Licensee itself or of third parties, the Licensee will request the necessary information from Expivi in writing, stating reasons for this. Expivi will then notify the Licensee, within a reasonable period of time, whether the Licensee can obtain the requested information and the conditions under which it is provided.
4. The Licensee is not permitted to remove any designation concerning copyrights, trademarks, trade names or other rights of (intellectual) property from the Software and/or the Documentation.
3.2 Expivi is entitled to investigate whether the Licensee is using the Software in a manner that corresponds with the terms and conditions of the License Agreement. The Licensee undertakes to cooperate with such an audit. Expivi bears the costs incurred for such an audit, both its own costs and the Licensee’s costs.
Article 4: Compensation
4.1 Immediately after entering into the License Agreement, Expivi is entitled to invoice the License Fee which is due for the first year that this License Agreement proceeds. All additional costs are billed monthly, in arrears. The Licensee shall pay Expivi the relevant parts of the License Fee within 14 days after receipt of the invoice concerned.
4.2 Expivi is only entitled to change the level of (the remaining parts of) the License Fee in the following cases:
1. Once a year, for the first time one year after the entry into force of this License Agreement, with a maximum of 5%.
4.3 Taxes, levies and other additional costs due on the License Fee are not included in the License Fee.
4.4 If the Licensee does not pay the amounts due within the agreed terms, once the Licensee is in default, the Licensee will then owe Expivi the statutory commercial interest on the outstanding unpaid amount.
Article 5: Updates and New versions
5.1 From time to time, Expivi will issue Updates in connection with the maintenance or optimisation of the Software. Expivi does not require (written) permission from the Licensee to do so.
5.2 If Expivi releases a New Version, it will also make it available to the Licensee.
Article 6: Cooperation of the Licensee
6.1 Expivi’s obligations pursuant to this Agreement with regard to the implementation of the services do not affect the Licensee’s obligation to establish, maintain and implement adequate procedures and control mechanisms, taking into account the nature and scope of the interests of use, as well as preventing or limiting damage resulting from possible irregularities in the service. The Licensee will ensure that its staff are adequately trained and informed about the operation of the Software.
6.2 Specifically, the Licensee will ensure adequate information and contractual agreements with external users who, for example, via the internet, without the actual intervention of a member of the Licensee’s staff, perform actions that also make use of the Software, about the risks associated with the use of an automated system for carrying out transactions and related services.
Article 7: Intellectual property rights
7.1 The intellectual property rights relating to the Software are vested with Expivi or its licensor(s).
7.2 The Licensee retains the ownership rights to files, designs, models, datasets, images, documents or similar material produced by the Licensee and sent or uploaded by the Licensee.
7.3 Expivi indemnifies the Licensee in legal proceedings instituted against the Licensee by third parties for all claims based on the statement that the use of the Software infringes the intellectual property rights belonging to this third party, unless:
1. the Licensee fails to notify Expivi immediately of the claim In Writing; or
2. the claims of third parties are caused by changes to the Software which have been made by Licensee or by third parties it employs; or
3. the claims of third parties are caused by the use of the Software in a way that is otherwise contrary to the terms of this License Agreement.
7.4 The indemnity referred to in Article 7.3 is only applicable if the Licensee entrusts Expivi with the handling of the case, including the conducting of settlement negotiations, and, if requested, the Licensee will provide Expivi with the required cooperation.
7.5 The Licensee declares that if a claim, as referred to in Article 7.3, is filed, it will agree with Expivi’s choice that it:
1. will modify the Software in such a way that it no longer constitutes an infringement;
2. will replace the Software with a functionally equivalent product;
3. will terminate the License Agreement and pay a fee to the Licensee equivalent to the full License Fee.
Article 8: Transfer
8.1 The parties are not permitted to transfer the rights and obligations from the License Agreement to a third party without the prior written consent of the counter-party. The party that is asked for permission is entitled to attach conditions to the granting of this permission.
Article 9: Change to this License Agreement
9.1 Expivi reserves the right to change or supplement this License Agreement.
9.2 Changes also apply to contracts which have already been entered into, with due observance of a period of 30 days after notification to the client, but only if the relevant agreements serve to provide services for a period of 12 (twelve) months or longer.
9.3 Expivi will seriously consider any objections reported by the client within this period, and may revoke or adjust the relevant changes on the basis of these objections. If Expivi makes an objection, the client will be entitled to terminate the agreement at the end of this period.
Article 10: Other provisions
10.1 Expivi’s General Terms and Conditions are applicable to this License Agreement.
10.2 The agreement between the client and Expivi is governed by Dutch law.
10.3 If a dispute is not settled amicably, the Judge of the Court of Overijssel, the Netherlands, is competent to settle the matter.