Licensing Agreement Invantive Dotnet Optimzer (free edition)

This document is an agreement between you, the Licensee, and Invantive BV, the Supplier, with its registered office and principal place of business in Harderwijk (NL).

You declare that you will use the Software exclusively in accordance with the terms and conditions set out below. By copying all or part of the Software, installing or using it, you declare that you agree to this agreement and all terms and conditions included therein. Upon considering that:
* Supplier is the holder of the rights to the Software;
* Parties have arrived at an agreement, and this agreement has been set out in this document and the Appendices thereto (hereinafter referred to as ‘the Licensing Agreement’);

Article 1 Definitions
1.1 The terms indicated in this Licensing Agreement that start with a capital letter have the meaning that is attached to them in this article.
* Appendix/Appendices: the documents attached to this Licensing Agreement which form an integral part thereof, and in which the agreements set out in the Licensing Agreement are described in detail.
* Documentation: the user manual of the Software that has been drawn up by the Supplier and that has been integrated in the Help function of the Software and/or that is made available as separate PDF files or as help format.
* Specifications: the requirements indicated which the Software must satisfy, as further described in Documentation.
* Computer Configuration: the network consisting of hardware and corresponding operating systems, on which the Software can, in any case, run. In order to run the Software on hardware, the hardware must satisfy the requirements described in the Documentation and you are required to acquire and configure the components described in the Documentation separately. Finally, combined use of anti-virus and firewall products together with Software is only allowed for the large scale business editions. Editions targeted at consumers and small businesses are not supported.
* Designated Users: the number of natural persons who have access to the Software, regardless of whether or not the natural person in question is actively using the Software at any given time. Every device that is not being operated by people yet which does have access to the Software is also considered a separate Designated User. If multiplexing hardware or software has access to the Software (such as via a TP monitor, a web server product or automatic loading of details), then the determination of Designated Users must occur via the multiplexing hardware or software for the multiplexing hardware or software. The Supplier will arrange for technical (monitoring) measures that make exceeding the number of licensed Designated Users so difficult that it is not easily done without deliberately attempting to do so, which includes but is not limited to sending user information from the Software to the Supplier.
* Project Leaders: the number of natural persons who are responsible for project management and/or project development. For licensing purposes, this is defined as a natural person who is linked to an active project registered in Software as a project leader/project developer. This connection must be a reflection of the truth. The Supplier will arrange for technical (monitoring) measures that make exceeding the number of licensed Project Leaders so difficult that it is not easily done without deliberately attempting to do so, which includes but is not limited to sending user information from the Software to the Supplier.
* Error: a defect in the Software that prevents the Software from functioning in accordance with the Specifications.
* Licensing Agreement: the current agreement.
* Location: the physical place where the Software and/or the Computer Configuration on which the Software operates is located.
* Update(s): a new version of the Software, in which Errors ascertained up to that point have been removed and/or an expansion of the existing functionality has taken place. * Maintenance Contract: a separate agreement between Licensee and Supplier concerning the repair of Errors, the provision of a help desk facility and the supply of Updates.

Article 2 Subject of this Licensing Agreement
2.1 Supplier grants Licensee a non-exclusive license to use the Software and the Documentation such as further described in this Licensing Agreement, and this license is accepted by Licensee. Licensee is entitled to use the Software on its Computer Configuration.
2.2 Licensee may only use the Software for the processing of data within its own company and subsidiaries as defined in Section 2:24a of the Dutch Civil Code [BW]. The Software may also be used jointly with a third party if this third party is working in a partnership with Licensee on project(s), in which case this may only be used for the project(s) for which purpose the partnership was entered into. Licensee is responsible for ensuring that any third party observes the provisions of this Licensing Agreement as if the third party were an integral part of the Licensee's organisation.
2.3 The following appendices are part of this Licensing Agreement:
* Appendix 1 Description of the Software.
2.4 In the event of a conflict between the provisions of this Licensing Agreement and the Appendices, the provisions of this Licensing Agreement shall prevail.

Article 3 Term and termination of Licensing Agreement
3.1 The Licensing Agreement has been entered into for an indefinite term. The Licensing Agreement shall only terminate if and to the extent termination occurs in accordance with the provisions of this article.
3.2 Without prejudice to the grounds for and method of termination in paragraphs ?3.3 and 3.4 of this article, a party is entitled to end the Licensing Agreement through termination if and to the extent it is entitled to do so on the grounds of the law. Termination will lead to the consequences associated with it by law.
3.3 A party is also entitled to cancel all or part of the Licensing Agreement with immediate effect, without being required to pay any compensation for damages arising for that party, in the event of one of the following circumstances:
* a petition is filed for the bankruptcy of the other party;
* the other party is declared bankrupt;
* a moratorium is granted to the other party (temporary or otherwise);
* the other party’s company is terminated or all or part of the company is transferred to a third party.
3.4 The Licensing Agreement will otherwise terminate only in the event both parties agree in writing to terminate the Licensing Agreement.
3.5 In the event this Licensing Agreement terminates, regardless of the reason, the Licensee is obliged to cease using the Software and to immediately return (all copies of) the Software to Supplier.

Article 4 Terms of use
4.1 For the term of the Licensing Agreement, Licensee is permitted to load, view, run or store the Software on the Computer Configuration, to the extent this is in accordance with the use intended for the Software.
4.2 Licensee is entitled to keep back-up copies of the Software and/or to create these, for temporary use or for protection.
4.3 The right of use granted in Article ?2.1 is also subject to the following limitations:
* The Licensee is not permitted to make the Software and Documentation available to third parties or to use these on behalf of third parties.
* The Licensee is not permitted to modify or adapt the Software or the Documentation.
* The Licensee is permitted to reproduce the Documentation. The copies produced may only be utilized by Licensee’s own personnel for internal use. Any further disclosure of the Documentation is not permitted.
* The Licensee is not permitted to reconstruct the source code for the Software using reverse engineering. In the event Licensee needs information in order to achieve Interoperability of the Software using its own computer software or that of third parties, Licensee will submit a written request to Supplier for the necessary information, providing reasons. Supplier will, in this case, notify Licensee within a reasonable period of time whether or not Licensee will have access to the desired information and the conditions under which this will be provided.
* Licensee is not permitted to remove any indication regarding copyrights, trademarks, trade names or other (intellectual) property rights from the Software or the Documentation.
4.4 Supplier is entitled to investigate whether or not Licensee is using the Software in a manner that corresponds to the terms and conditions of this Licensing Agreement. Licensee is required to cooperate with such an audit and to grant Supplier access to the Location for this purpose. Supplier will bear its own costs as well as the Licensee’s costs associated with this type of audit. The stipulations in Article ?9.1 also apply to this type of audit.

Article 5 Guarantee
5.1 Supplier guarantees that the Software will function according to the Specifications for one month after its purchase.
5.2 During the warranty period, Licensee is entitled to the repair of Errors, at no charge. Repairs may also be carried out using a restriction designed to prevent problems, or by providing an Update. Upon the expiry of the warranty period, Licensee will only be entitled to the repair of errors if a Maintenance Contract has been concluded between the parties.
5.3 In the event the Supplier fails to remedy the Errors observed by Licensee during the period of warranty, Licensee is entitled to terminate the Licensing Agreement.
5.4 The warranty in Article ?5.1 will lapse if and to the extent Supplier demonstrates that the Errors in question arose as a result of error repairs, maintenance or modifications carried out by or on behalf of Licensee.

Article 6 Transfer
6.1 Supplier may transfer the rights and obligations arising from this Licensing Agreement to a third party.
6.2 The Licensee is not permitted to transfer the rights and obligations arising from this Licensing Agreement to a third party without notifying the Supplier of this beforehand in writing. Supplier is entitled to attach conditions to the granting of this permission.

Article 7 Intellectual property rights
7.1 The intellectual property rights associated with the Software and the Documentation are vested in Supplier or its licensors and/or suppliers. The Software remains the property of Supplier.
7.2 Supplier indemnifies Licensee in legal proceedings initiated against it by third parties and which are based on the claim that the use of the Software and/or the Documentation infringe the intellectual property rights belonging to these third parties unless:
* Licensee fails to immediately notify Supplier in writing of the claim, or
* the claims in question initiated by third parties are caused by changes in the Software which were introduced into the Software by Licensee or by third parties it has engaged; or
* the claims in question initiated by third parties are caused by the use of the Software and/or Documentation in a manner that is otherwise in violation of the conditions of this Licensing Agreement.
7.3 The indemnification referred to in Article ?7.2 only applies if the Licensee turns over the entire proceedings of the case, including the carrying on of settlement negotiations, to Supplier, and if asked, grants Supplier the necessary cooperation.
7.4 Licensee certifies that in the event an action is initiated as referred to in Article ?7.2 , that it will consent to allow the Supplier, at its own discretion, to:
* modify the Software and/or the Documentation (or have this done) in such a way that it no longer infringes rights;
* replace the Software and/or the Documentation with a functionally equivalent product;
* retrieve the Software and/or Documentation from Licensee and pay Licensee compensation in the amount of the License Fee it has paid.

Article 8 Liability
8.1 The party that fails imputably vis-à-vis the other party and/or commits a wrongful act in respect of the other party, for which it is responsible, is liable to pay compensation for damage suffered and/or to be suffered by that party.
8.2 The Supplier's liability pursuant to the previous paragraph is limited to €10,000 per incident, subject to a maximum of the total amount of the License Fee that has been charged.
8.3 The liability of the parties for indirect or consequential damage is excluded. Examples of this include lost profits or lost savings.
8.4 Parties are only entitled to claim compensation for any damage as referred to under Article ?8.1 regarding an attributable breach if the aggrieved party declares the party in breach to be in default, and the latter fails to comply within the determined period of time. The obligation to provide notification of default lapses if compliance or remedy continues to remain impossible.
8.5 The limitation of liability in Article ?8.2 lapses when: * the damage is caused by a violation of intellectual property rights;
* the damage is caused by intent or gross negligence by the party responsible for the negligent/wrongful acts;
* the damage arises from third-party claims as a result of death or bodily injury.

Article 9 Confidentiality
9.1 Parties will make every effort to prevent confidential information belonging to the other party from being disclosed or made available to third parties. None of this applies in the event the party disclosing the information demonstrates that certain details have already become public knowledge, as a result of actions other than a violation of this confidentiality requirement, or in the event a party is forced to reveal confidential information by a (judicial) authority authorized for this purpose.
9.2 Supplier is not permitted to announce in advertisements, promotional messages or other activities within the scope of its marketing efforts the fact that Licensee is one of its clients, with the exception of prior written permission from Licensee.

Article 10 Other provisions
10.1 Article 7 (Intellectual property), Article 8 (Liability), Article 9 (Confidentiality), Article 11 (Settlement of disputes) and Article 12 (Applicable law) will remain, by their nature, applicable after the termination of this Licensing Agreement.
10.2 The parties’ own general terms and conditions of sale are not applicable.
10.3 In the event one or more of the provisions of this Licensing Agreement becomes void, in violation of the law, or unenforceable, this will not affect the validity of the remaining provisions. Parties will negotiate about a new provision, in mutual consultation, to replace the void or unenforceable provision, which follows as closely as possible the purport of the void or unenforceable provision.
10.4 Any notifications between the parties on the basis of the Licensing Agreement must be made in writing. A message that can be read electronically is considered equal to the above.
10.5 Any verbal commitments and agreements will be without effect, unless these are confirmed in writing or electronically by a party.
10.6 The failure by one party to exercise any right or remedy does not imply the relinquishment of that right or remedy.

Article 11 Settlement of disputes
11.1 The court of the district in which the Supplier has its registered office in the Netherlands is the only court competent to hear any dispute between the parties that relates to the current Licensing Agreement.

Article 12 Applicable law
12.1 This Licensing Agreement is governed by the laws of the Netherlands.

Appendix 1 Description of Software:
The Software consists of:
Invantive Dotnet Optimizer
Plus all customizations of the Software created by the Supplier on the instructions of the Licensee that is bundled with it and whose intellectual property rights have been transferred to the Supplier. Unless explicitly agreed otherwise, the intellectual property rights to all customizations will revert to Supplier. Components which are explicitly not a part of the Software include:
* Links to other systems.
* Invantive Producer development licenses or parts thereof.
* Functionality added as separately sold modules to Invantive Dotnet Optimizer following the signing of the Licensing Agreement.