License Agreement - Pay As You Go (PAYG)
Please read this License Agreement carefully before using, accessing, downloading, installing or otherwise operating any of the Products.
By using, accessing, downloading or otherwise operating any of the products, Licensee constitutes an unconditional agreement to be bound by this License Agreement.
IF YOU DO NOT ACCEPT THE TERMS OF THIS LICENSE AGREEMENT, YOU ARE PROHIBITED FROM USING ANY OF THE PRODUCTS.
Add-On means a software component for THEOplayer which can be selected and purchased by Licensee at the THEOportal for the purpose of extending the functionality offered by THEOplayer.
Agreement means this License Agreement and all schedules, appendixes and related documentations provided to Licensee.
Authorized Domain(s) means one or more Domains for which the Products is registered by Licensee via the THEOportal for the Use in accordance with this Agreement.
Billing Information means the information required for billing the usage of the Products. This includes, but is not limited to the Licensee’s name, address, e-mail address, telephone number and in case Licensee transacts business with Licensor, financial information such as a valid credit or debit card or other payment details.
Confidential Information means any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, customer-, supplier-, product- or production-related or otherwise, including samples, information relating to, specifications, the Product, patent applications, process designs, process models, materials and ideas, disclosed by the Licensor to the Licensee. Such information may be disclosed in any form, provided that it is disclosed reasonably in connection with the Agreement.
Control means the power, factual or by law, to exercise a decisive influence on the designation of the majority of the directors of a company, or on its management. Notably, there is legal control when it results from the possession of the majority of the voting rights linked to the shares of the controlled company.
Domain(s) means a unique name that identifies an internet resource such as a website, as well as all the subdomains that are part of this domain.
Effective Date means the commencement date of the Agreement and is set to the date of the registration on the THEOportal for the Use of any of the Products.
End Date means the expiration date of each Term starting from the Effective Date.
Impression means playing a given video or audio source without exchanging such video or audio source with another video or audio source. For the avoidance of doubt, pausing and playing, or seeking in the same video or audio source is considered as the same Impression.
Intellectual Property Rights means any intellectual property and proprietary rights, including , but not limited to, copyrights, moral rights, works of authorship, trade and service marks, trade names, rights in logos and get-up, inventions and discoveries, Confidential Information, trade secrets and Know-How, registered designs, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, source code, database rights all intangible rights and privileges of nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration, all renewals, reversions or extensions, the right to sue for damages for past infringement and all forms of protection of a similar nature which may subsist anywhere in the world.
Know-How means any information relating to commercial, scientific and technical matters, inventions and trade secrets, including but not limited to any patentable technical or other information which is not in the public domain including information comprising or relating to concepts, discoveries, data, designs, formulae, ideas, reports and data analyses.
License has the same meaning as Agreement.
License Agreement has the same meaning as Agreement.
License Fee means the amount payable to Licensor required for Use of the Products.
Licensee means you and any entity on whose behalf you Use the Products.
Licensor means THEO Technologies NV and its successors and assigns.
Parties means both Licensee and Licensor.
Party means Licensee or Licensor individually.
Payment Provider means a third-party payment platform made available to Licensee. Currently, Licensor is using Stripe Payments Pty Ltd ACN 160 180 343 as a third-party service provider for Payment Services via https://stripe.com/docs/connect/updating-accounts#tos-acceptance.
Stripe Account means an online payment profile created and registered with the Payment Provider for and on behalf of Licensee in order for Licensee to provide the Payment Services.
Payment Services means the internet-based payment processing services provided by the Payment Provider, acting as a payment facilitator and/or escrow agent for the collection and payment of the License Fee under this Agreement.
Products means THEOplayer including all Add-Ons and related services offered by Licensor.
Purpose means integrating Products as audio/video player on a website, in an audio/video platform or any similar environment.
SDK means a software development kit which is a set of software development tools that allows the creation of applications for a certain software package, video service platforms, software framework, or similar development platform.
Taxes means any value added tax (VAT), sales tax, income tax, consumption tax or any other similar tax, duty, fee, levy or other governmental charge, customs duties and other levies.
Term means the period of subscription in accordance with this Agreement.
THEOplayer means a set of SDKs and related Add-Ons for various platforms written and developed by the Licensor that provides support for playback and related functionalities for HTTP Live streaming (HLS) or MPEG-DASH streams including any related software, source and object code, deliverables, technology and related resources and relevant documentation provided and/or created, made available or developed by Licensor to Licensee in connection with this Agreement.
Use means using, accessing, downloading, installing or otherwise operating the Product subject to clause titled "LICENSE" and in connection with the Purpose of this Agreement and its terms and conditions.
Updates means all updates, modifications and releases of new versions of Product containing improvements, corrections, minor modifications, bug fixes, patches, or the like that have been publicly announced by the Licensor on its website.
Upgrades shall mean all modifications, new features, enhancements, releases of new versions of Product and similar developments of it which have not been announced already as Updates by Licensor on its website. Such Upgrades may be subject to additional charge and require a separate agreement by the Parties and/or are specifically designed for or requested by Licensee.
GRANT OF LICENSE
In consideration of timely payment by the Licensee to the Licensor of the License Fee, the Licensor grants to the Licensee, and the Licensee accepts from the Licensor, on and subject to the terms of this Agreement, a non-exclusive, non-transferable, worldwide and non-assignable right and License to Use the Products in connection with the Purpose.
This License is expressly limited to (i) the Authorized Domains which must be registered by Licensee via the THEOportal (ii) the Term of this Agreement as mentioned and (iii) the Purpose.
For the avoidance of doubt, the number of Authorized Domains and Impressions is unlimited, but Licensor reserves the right to reject one or more Authorized Domains on reasonable grounds.
The Licenses granted hereunder shall be solely for Licensee's own Use. Save for the right of the Licensee to integrate the Products for the Purpose, the Licensee may not disclose, rent out, hire, lease, sell or otherwise redistribute, transfer or make available Products to third parties.
For the avoidance of doubt, the Licenses granted under clause titled "LICENSE" shall not include any modifications or Upgrades of any kind to Products made by the Licensor after the Effective Date except for the Updates that have been made publicly available.
Except as specifically set forth herein or as agreed by the Licensor in writing, Licensee shall not distribute, relicense, sell, lease, transfer, encumber, assign or make available for public use the Products. Any attempt to take any such actions is void and will automatically terminate Licensee's rights under this Agreement.
Reverse Engineering and Modifications
Unless agreed by Parties in writing or if the enforcement of this provision is prohibited by applicable law, Licensee shall not under any circumstances attempt, or knowingly cause or permit others to attempt to modify, adapt, port, merge, decompile, disassemble, reverse engineer, decipher, decrypt or otherwise discover the source code or any other parts of the mechanisms and algorithms used by Product nor remove restrictions or create derivative works of Product or of any part of Product. The Licensee may not alter, modify, adapt, port or merge Product or any part thereof.
The Licensee recognizes that all rights, title and interests in and to any and all worldwide Intellectual Property Rights related to the Product shall remain the property of Licensor or its suppliers. Unless otherwise agreed upon between the Parties, any Intellectual Property Rights in any Updates, Upgrades, enhancements, customization, modifications, inventions, developments, improvements thereof of any kind to, in, or that otherwise relate to the Product, including any derivative work or results of services during, before or after the Term of this Agreement, either specific to Licensee, its customer or in general in connection with this Agreement or arising out of the business relationship between the Parties shall solely and exclusively belong to or be transferred to Licensor through assignment, entitlement or otherwise, including the entire right, title and interest. For this purpose, Licensor shall also have the right to file and prosecute at its own expenses any patent application on the same above, in any country, region or jurisdiction in the world in its own name or on behalf of Licensee, as the case may be. Licensee shall not have the right to claim and will not undertake or try to obtain, register or apply for any Intellectual Property Rights or other rights in or to the Product anywhere in the world. Licensee shall not do anything that might misrepresent, change or otherwise compromises the ownership or proprietary rights of Licensor or its suppliers under this Agreement. Licensee shall not take any actions that would amount to an exhaustion of Licensor’s or its suppliers Intellectual Property Rights. The Product may contain the Product logo and copyright notice. It is prohibited to remove or modify the copyright notice and Product logo.
During the Term of this Agreement, the Licensee must pay for each month to the Licensor the then currently applicable license fee (License Fee) as set out below and as provided by Licensor at www.theoplayer.com/pricing.
Pay As You Go (PAYG)
Licensee pays based on actual usage or pay as you go (PAYG) for the preceding month, as applicable, with no upfront commitment. Unless other defined in this Agreement, the payment of the License Fee becomes payable when Licensee exceeds the predefined number of free Impressions during the preceding month as defined under www.theoplayer.com/pricing.
Licensee pays for all metered Impressions on an aggregated basis for all Authorized Domains as registered by Licensee via the THEOportal.
Licensee may select and purchase one or more Add-Ons to customize the Product. Add-Ons may be subject to an additional License Fee as provided by Licensor.
During the Term the License Fee may be subject to change by Licensor provided Licensor has given to Licensee a prior written notice. In case of an increase of the License Fee by more than ten (10) percent, Licensee may terminate this Agreement with the effective date of such change.
All License Fees paid for the usage of the Product are non-refundable except as otherwise provided in this Agreement.
Licensee shall be responsible to pay all Taxes or levies due in connection with the License Fee and Licensee's Use of the Products.
In order to Use the Product, Licensee must provide Licensor with accurate and complete Billing Information through the THEOportal. Invoices related to the License will be sent to the billing address listed in the Billing Information. Licensor will issue each Invoice on a monthly basis, either, after each successful payment transaction or when the payment for the applicable payment transaction has become due.
For the purpose of billing and invoicing, Licensee shall provide to Licensor its payment details through the THEOportal in accordance with clause titled “PAYMENT DETAILS” under this Agreement, either during the first registration or at the latest upon notification by Licensor when the usage of the Product becomes chargeable under this Agreement.
The Licensee is prohibited from using the Products if the License Fee due has not been paid.
In case of (partial) non-payment of an invoice at its expiration date:
- any other non-expired debt of the Licensee will become due automatically without prior notice;
- the Licensor is entitled to immediately suspend the License and Use without prior notice;
- the amount due will automatically and without prior notice be increased with ten (10) % interest per year; and
- a lump-sum compensation in the amount of ten (10) % of the unpaid or overdue paid invoice amounts will be due, as well as other applicable legal and extra-legal recovery expenses, protest and legal costs.
All payments due under this Agreement will be executed by using a Payment Provider. Licensor assists in processing payment of the License Fees by using a Payment Provider for payments under this Agreement. For such purpose, THEOportal may contain links to third-party websites, terms and conditions, resources which may be subject to different terms and conditions and privacy practices. Such links are not an endorsement by Licensor of such Payment Services.
Additionally, Licensee is also solely responsible to the Payment Provider for all transactions and charges, disputes, refunds, claims, fines, or use of the Payment Services and any penalties or fines imposed by any bank, money services business, payment network, or other financial intermediary resulting from Licensee’s use of Payment Services in a manner not permitted by this Agreement and the terms and conditions of the Payment provider.
By registering on the THEOportal, Licensee consents and authorizes Licensor and the Payment Provider to: (a) share and disclose with one another any information, payment details and payments instructions that Licensee provides on the THEOportal for the purpose of the Payment Services; (b) connect Licensee’s account on the THEOportal with the Payment Provider’s Stripe Account or any other account created by or for Licensee and, to the extent required to complete Licensee’s transactions, with any third party service provider for the purpose of the Payment Services.
Additionally for the purpose of the Payment Services, by registering on the THEOportal, Licensee authorizes, and agrees to allow Licensor and the Payment Provider to collect, use, retain, and disclose any information that Licensee provides to Licensor or the Service Provider, including information that Licensor or the Payment Provider may collect directly using cookies or other similar means.
Licensee acknowledges that it is solely responsible for any information or data provided by Licensee directly to Licensor or the Payment Provider or as part of the standard onboarding process on the THEOportal or otherwise for the purpose of the Payment Services.
Licensor is not responsible or liable for the availability or accuracy of such Payment Services, or the content, products, or services available from such Payment Provider, or any fraud or other crime facilitated thereby.
In no event shall Licensor be liable to Licensee for any actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise of any kind whatsoever, arising out or relating to their respective use of, or in ability to use, the Payment Services, regardless of the legal theory under which such losses are sought.
Licensor takes no responsibility and assumes no liability for any action, inaction, omission or negligence of the Payment Provider in connection with the Payment Services.
Due to the nature of the internet, user verification on the internet is difficult. Licensor does not assume any responsibility for the confirmation of Licensee’s identity, qualification and/or experience. Notwithstanding the above, for transparency and fraud prevention purposes to the extent as permitted by applicable laws, Licensor may request Licensee to provide proof of its identity or obtain information about Licensee from third party databases in Licensee’s jurisdiction.
Licensee may choose to pay by credit card or SEPA direct debit, or as otherwise agreed by the Parties in writing. Licensor advises to use credit card payment for all current and future payments under this Agreement in order to guarantee an uninterrupted Use of the Product and the THEOportal. However, SEPA direct debit option is available in all EU Member States, Norway, Iceland, Liechtenstein, Switzerland, Monaco, San Marino, and Andorra. Licensee chooses to pay by SEPA direct debit through providing its IBAN account number via THEOportal or otherwise.
By providing the credit card details, IBAN account number or any other payment details, Licensee is authorizing Payment Provider, to send instructions to Licensee’s bank and/or credit card provider to debit or credit Licensee’s bank account in accordance with those instructions.
Licensee may provide such payment details for all current and future payments either during the registration process at the THEOportal or at any time later when using the account. In this case, Licensee acknowledges that all amounts due under this Agreement will be deducted automatically from its credit card and/or bank account in accordance with the Licensor’s PAYG model without any further action and separate authorization of Licensee, unless otherwise agreed upon between the Parties.
In case Licensee decided not to provide its payment details for all current and future payments due under this Agreement, Licensor will provide an email with a payment request by credit card each month when a payment is due under this Agreement. Licensee shall execute each credit card payment within fifteen (15) days after receipt of Licensor’s payment request. In such a case, the credit card details are not used for any future payments under the Agreement.
For the avoidance of doubt, Licensee’s payment details are provided directly to the Payment Provider via the THEOportal and will be linked to Licensee’s Stripe Account. At no time will such payment details be saved, stored at the THEOportal or used otherwise by Licensor.
COMMENCEMENT AND TERM
This Agreement shall commence on the Effective Date and shall, subject to the provisions of the clause titled "TERMINATION" continue to be in effect for one (1) month (Term). After this first Term, this Agreement will be tacitly renewed for consecutive one (1) month Terms, unless one of the Parties terminates the Agreement in accordance with the clause titled "TERMINATION".
At any time, either Party may terminate this Agreement at the end of each Term by giving a prior written notice to the other Party.
This Agreement will be automatically terminated at the end of the current calendar month if the Licensee doesn’t generate any Impressions for a period of consecutive ninety (90) calendar days.
Without prejudice to any other rights to which it may be entitled, either Party may give notice in writing to the other Party terminating this Agreement for cause with immediate effect and without court authorization:
- if the other Party commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within fifteen (15) calendar days of that Party being notified in writing of the breach; in any case, the following (non-exhaustive) list of events will be considered as a material breach:
- the Licensee fails to pay the License Fee within the agreed payment terms or fails to provide a valid payment details for such payment;
- the Licensee prevents the Licensor from tracking Impressions or causes the information resulting from the tracking of the Impressions to be incorrect or invalid;
- the Licensee uses the License for Domains other than the Authorized Domains or in contravention with the Purpose;
- the Licensee Uses the Product for streaming illegal content or in violation of any third-party rights;
- if the Licensee violates any material term of this Agreement;
- if the Licensor has reasonable basis to believe that Licensee is not abiding by the spirit and the conditions of this Agreement;
- if the Licensor has a reasonable basis to believe that Licensee is impairing the Licensor's business;
- if an order is made or a resolution is passed for the winding up of the other Party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party or if a receiver is appointed of any of the other Party’s assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other Party takes or suffers any similar or analogous action in consequence of debt;
- in case of a change of Control of the Licensee;
- extraordinary circumstances, unforeseen by the Parties, which would make this Agreement resulting in an illegal action of a Party; or which substantially affect and disturb the cost structure or the initial economic value of the Agreement in an unreasonable manner so that an adherence to the contract would be unreasonable or unfair.
In the event of any termination for cause by the Licensor pursuant to the rules set above, Licensor is under no obligation to provide a refund for the License Fees received from Licensee or apply such fees to future services.
Effects of Termination
All rights granted to the Licensee under this Agreement shall forthwith terminate and immediately revert to the Licensor. All Use of Products shall immediately be discontinued by Licensee and uninstall, delete and destroy any copies of the Products.
Termination of this Agreement for any reason shall not release any Party hereto from any obligation which, at the time of such termination, has already accrued and become due to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
In case of termination of this Agreement, for any reason whatsoever, all unpaid due License Fees shall become immediately collectible and the Licensor shall be entitled, in addition to any other remedies available to it, to take all necessary steps to collect such amounts, together with all costs, indemnities, compensations, damages, fees and expenses incurred by the Licensor.
Before Using the Product, Licensee must create a username and password as well as provide accurate contact and other information, such as email address, telephone number and name, credit card or other payment details (together “Account Information”). Licensee is strictly prohibited from: (i) using false Account Information, , (ii) using such information owned or controlled by another person with the intent to impersonate that person, or (iii) providing such information subject to any rights of a person other than Licensee without appropriate authorization. Licensor reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Licensee shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Licensee agrees to immediately notify the Licensor of any unauthorized use of Licensee's Account Information or other breach of security. To the extent required under this Agreement, Licensee authorizes Licensor to save and use such Account Information as provided by Licensee through the THEOportal.
The Use of the Product up to ten thousand (10.000) Impressions per month is free of charge.
In case, Licensee exceeds this amount of Impressions during the current month of Use Licensee shall pay the applicable License Fee in accordance with the clause titled “PAYMENT” and as set out on www.theoplayer.com/pricing.
The Licensee is prohibited from using the Products if the License Fees due have not been paid and Licensor reserves the right to immediately suspend, terminate, block and/or blacklist the Use of the Product under this Agreement.
The Licensor has no obligation under this Agreement to provide any maintenance, support or training to Licensee. Such services may be purchased by Licensee separately and subject to additional service fees.
General documentation regarding the minimal technical requirements, the suitability, the integration, the features and compatibility of the Products will be made available on the Product website www.theoplayer.com.
UPGRADES AND UPDATES
The Licensor has no obligation whatsoever under this Agreement to Upgrade, modify or release new versions of the Products.
The Licensee shall only be entitled to Updates of the Products that have been made publicly available by the Licensor.
For statistics and invoicing purposes, Licensor will have at all times the right to track the Use and Impressions on the Products. Licensor may use the gathered information to deliver the Products, manage the Licensee's account, provide customer support, perform research and analysis about Licensee's Use, enforce the Agreement and perform functions otherwise described to Licensee at the time of collection. The Licensee may not prevent the Licensor from tracking Impressions or cause that the information resulting from the tracking of the Impressions is incorrect or invalid.
Unless otherwise agreed in this Agreement, Licensor will not collect, store or share with a third party any personal data in order to identify an individual user when using the tracking and reporting functionality without Licensee's express written consent, provided nothing herein shall limit the Licensor's right to use and share aggregated, non-personally identifiable data. Licensee grants Licensor a limited, royalty-free, worldwide license to use the information collected by the tracking and reporting functionality to facilitate the operation of Products, ensure compliance and for its internal business purposes.
MARKETING AND USE OF NAME
The Licensor may refer to the Licensee’s name, trademarks, service marks, logos, and/or branding as well as the existence of the License in (i) marketing and publicity materials as an indication of its experience, and (ii) internal data systems.
The Licensee may not use the Licensor’s trademarks, service marks, logos, and/or branding in any external publicity material without the Licensor’s prior written consent.
Licensee guarantees and warrants to have all rights, permission by third parties and licenses with regards to uploading and streaming of media content when using the Product.
The Licensor warrants that paid Use of the Products are in accordance with the minimum technical requirements provided by the Licensor to the Licensee.
THE LICENSOR DOES NOT PROVIDE ANY GUARANTEE, EXPRESS OR IMPLIED, AS TO QUALITY, SUITABILITY, FEATURES, COMPATIBILITY OF THE PRODUCTS OTHER THAN AS MENTIONED IN THE GENERAL DOCUMENTATION. IN THE EVENT A CLAIM OF THE LICENSEE IS CONSIDERED VALID BY THE LICENSOR, THE SOLE RECOURSE CONSISTS OF A REPAIR OR A REPLACEMENT OF THE RELEVANT SOFTWARE ELEMENT, LIBRARY OR SDK.
EXCEPT TO THE EXTENT AS SPECIFIED IN THE PRECEDING CLAUSE TITLED “SPECIFICATIONS”, ANY PRODUCT (BE IT FREE OF CHARGE OR PAID) AND ITS USE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE PRODUCT’S ACCURACY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THE CORRECTION OF ALL DEFECTS OR ANY ERROR-FREE OR UNINTERRUPTED OPERATION OF THE PRODUCT. THE LICENSOR DOES NOT PROVIDE ANY WARRANTY AS TO QUALITY, SUITABILITY, FEATURES, COMPATIBILITY OF THE PRODUCT OTHER THAN AS MENTIONED IN SUCH GENERAL PRODUCT DOCUMENTATION. THIS AGREEMENT DOES NOT PROVIDE ANY REPRESENTATION OR WARRANTY OR LIABILITY AS TO ANY THIRD-PARTY SOFTWARE.
The Licensor will not indemnify nor hold harmless the Licensee against any infringements of any rights of third parties.
Licensor shall have no obligation for payment of royalties or any other compensation to Licensee or third parties, if any, with respect to the Use of the Product by Licensee or its customers, clients, viewers, listeners for playing media content or in connection with third party products and software. The Licensee will be exclusively responsible for payment of royalties to third parties.
LIMITATION OF LIABILITY
THE LICENSOR'S TOTAL AGGREGATE LIABILITY TO THE LICENSEE OR TO ANY THIRD PARTY, WHETHER IN CONTRACT (INCLUDING UNDER ANY INDEMNITY OR WARRANTY), IN TORT (INCLUDING NEGLIGENCE) UNDER A WARRANTY, UNDER STATUTE OR OTHERWISE, UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE YEARLY LICENSE FEE PAID OR PAYABLE FOR THE TERM OF THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE LICENSOR SHALL NOT BE LIABLE VIS-À-VIS THE LICENSEE OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) UNDER A WARRANTY OR INDEMNITY, UNDER STATUTE OR OTHERWISE, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST REVENUE, LOST PROFIT, LOST DATA OR CORRUPTED DATA, OR INDIRECT OR CONSEQUENTIAL DAMAGES, COSTS OF PROCUREMENT FOR SUBSTITUTION OF PRODUCTS OR SERVICES, THIRD PARTY SOFTWARE AND CLAIMS, PROVIDED INFORMATION, WASTED MANAGEMENT TIME, LOSS OF USE OF COMPUTER SYSTEMS AND RELATED EQUIPMENT, COMPUTER FAILURE AND MALFUNCTIONS, DOWNTIME COSTS, HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS EVEN IF (A) THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) THE DAMAGES WERE FORESEEABLE.
THE PROVISIONS OF THIS CLAUSE TITLED “LIMITATION OF LIABILITY” SHALL NOT APPLY TO THE EXTENT RESTRICTED OR PREVENTED BY MANDATORY APPLICABLE LAW THAT CANNOT BE AMENDED OR EXCLUDED BY CONTRACTUAL WAIVER SUCH AS DELIBERATE ACTS AND FRAUD.
Treatment of Confidential Information
The Licensee agrees and undertakes that for the duration of this Agreement as well as for ten (10) years thereafter, it will keep confidential and will not use for its own purposes nor without the prior written consent of the Licensor divulge to any third party any Confidential Information concerning the Licensor or its activity it has received or obtained in the framework of this Agreement.
Release from Restrictions
The provisions of the clause titled "CONFIDENTIALITY" shall not apply to any Confidential Information of the Licensor that:
- at the time the Licensee discloses it to a third party or uses it, is generally known to the public through no fault of the Licensee; or
- at the time the Licensee uses it or discloses it to a third party, has been made available to the Licensee by a third party having the lawful rights to do so without breaching any such obligation of non-use or confidentiality; or
- is proven by the Licensee to have been independently developed by the Licensee without making use of the Confidential Information; or
- the Licensee is required to disclose to comply with applicable laws, or to comply with governmental regulations, provided that the Licensee provides prior written notice of such disclosure to the Licensor and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords the Licensor as much notice as possible of such disclosure to allow the Licensor to do likewise.
The clause titled "CONFIDENTIALITY" shall remain in full force and effect notwithstanding any termination of this Agreement.
By accepting this Agreement, Licensee represents and warrants to have the legal capacity and authority to enter into legally binding contracts and this Agreement.
Both Parties are independent contractors under this Agreement. Consequently, nothing in this Agreement is intended or may be construed so as to establish a partnership or joint venture between the Parties and neither Party shall have the authority (actual or apparent) to bind the other Party.
No Implied Rights
Other than expressly provided for in this Agreement, nothing in this Agreement grants or shall be construed to grant to any Party any right and/or any license to any Intellectual Property Right or application therefore (including but not limited to patent applications or patents) which are held by and/or in the name of the other Party and/or which are controlled by the other Party, or to any Confidential Information received from the other Party.
With the exception of payment obligations, neither Party shall be held in breach of its obligations hereunder to the extent only that due performance or observance of such obligation is prevented or delayed by war and other hostilities, civil commotion, accident, trade disputes, acts or restraints of government imposition or restrictions of imports or exports or any other cause not within the control of the Party concerned.
The Party concerned shall forthwith notify the other Party of the nature and effect of such event and both Parties shall, where the same is practicable, use every reasonable endeavour to minimize such effect and to comply with the respective obligation herein contained as nearly as may be in their original form.
Licensee agrees to release, defend, at Licensor’s option, indemnify, and hold Licensor and its affiliates and subsidiaries, and their officers, directors, employees, contractors and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Licensee’s breach of these Agreement (ii) Licensee’s negligent or improper use or misuse of the THEOportal or any of Licensor’s services, (iii) Licensee’s breach of any laws, regulations or third party rights; or (iv) Licensee’s breach of any Payment Service related terms and conditions; or (v) Licensee’s negligence, misconduct or intentional omission in connection with or during the course of Licensee’s use of the THEOportal or Payments Service.
All notices or other communication required or permitted to be given in writing under this Agreement must be given in the English language by email, to the addresses provided by Licensee or such other addresses as the Parties may have designated to each other.
Other Agreements and Amendments
This Agreement and any agreement entered into pursuant to this Agreement constitutes the entire agreement between the Parties and supersedes and replaces any and all prior negotiations, arrangements and understandings, whether or not in writing, between the Parties with respect to the subject matter of the Agreement. No variation of this Agreement is valid unless it is in writing and signed by or on behalf of each Party.
This Agreement is binding upon and inures for the benefit of the successors of Licensee but may not be assigned by Licensee, except with the prior written consent of the Licensor.
No failure or delay by any Party in exercising any right or remedy provided by law or pursuant to this Agreement will impair such right or remedy or be construed as a waiver of it and will not preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy will preclude any further exercise of it or the exercise of any other remedy.
If any provision of this Agreement or of any of the documents contemplated in it is held to be invalid or unenforceable, then such provision will (so far as it is invalid or unenforceable) have no effect and will be deemed not to be included in this Agreement or the relevant document, but without invalidating any of the remaining provisions of this Agreement or that document. The Parties must then use all reasonable endeavours to replace the invalid or unenforceable provision by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
Open Source Software
Licensee agrees, that Licensor may use open source software for its Product which shall be notified to Licensee upon its prior written request. This open source software is licensed to Licensee by the open source software publisher and therefore, governed by the terms and conditions of the applicable open source license terms and conditions which shall apply directly between the Licensee and the open source software publisher. Licensee understands to be bound by and to comply with these open source license terms and conditions in connection with the use of the Product. Licensor provides all opens source software “AS IS” without any warranties or representations, express or implied. Licensor is under no obligation, to indemnify Licensee against any third-party infringement claim. Licensor will also have no liability for any damages caused by the open source software. Licensee shall not modify or create any derivative work of the open source software.
The Licensor may modify the terms of this Agreement in its sole discretion and such modifications shall take effect and be binding on Licensee on the earliest date which they are posted to the Licensor's publicly available website or delivered to Licensee via electronic or physical delivery. No one other than the Licensor has the right to modify this Agreement.
GOVERNING LAW AND JURISDICTION
The Agreement is governed by and must be construed, interpreted in accordance with the laws of Belgium without given effect to the conflict of law principles thereof. The courts of Leuven have exclusive jurisdiction over any dispute, legal action and proceedings arising out of or related to the Agreement, including its termination, which shall be binding and enforceable upon the Parties worldwide. In the event of any proceeding or litigation arising out of this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party its legal fees, court fees and related costs to the extent and in ratio of its success. Notwithstanding the foregoing, Licensor may bring legal actions against Licensee in the country where Licensee has its seat, if it deems necessary for the enforceability of its rights regarding payments by Licensee under the Agreement.