Dynatos – Software License Agreement
ARTICLE 1 – SCOPE OF USE
Dynatos hereby grants to the Client a limited perpetual (except as otherwise provided herein), nonexclusive, non-transferable and non-sublicensable (except as provided herein) license (“License”) to use the Licensed Dynatos Software for internal and non-commercial purposes of the Client. The Client shall not (i) permit other entities or individuals to use the Licensed Dynatos Software (except as otherwise provided herein), (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based on the Licensed Dynatos Software, (iii) copy the Licensed Software, (iv) sell, rent, lease, or otherwise transfer rights to the Licensed Dynatos Software, (v) remove any proprietary notices or labels on the Licensed Dynatos Software, (vi) separate, remove or replace any components of the Licensed Dynatos Software provided by third parties (“Component Software”); use any Component Software independently of the Licensed Dynatos Software; or use the Licensed Dynatos Software without the Component Software.
ARTICLE 2 – TERM AND TERMINATION
The Client is granted a perpetual license as of the moment of payment in full of the Dynatos Software.
The present Agreement shall terminate de iure and ex nunc in case the Client has filed for a postponement of payment, or has filed for bankruptcy or judicial reorganization, has suspended any or all payments, has assigned its assets to a third party, in case its solvency has been manifestly undermined, has ceased to do business in the ordinary course or is in breach of its contractual obligations hereunder.
ARTICLE 3 – UPDATES
Dynatos will provide the Client with patches and upgrades for the Licensed Dynatos Software when such are released from time to time for general distribution by Dynatos. Updates and upgrades are usually subject to a fee.
License of a patch or upgrade may cause interference with functionality of the Client’s system due to third party products. Such third party products may need to be updated reflecting the contents of the patch or upgrade supplied. To the extent Dynatos is aware of such incompatibility, Dynatos will in connection with making the patch or upgrade available, notify the Client thereof.
ARTICLE 4 – LIABILITY
The liability that Dynatos may incur derives from a best effort obligation (‘inspanningsverbintenis/obligation de moyen’) and the Client will have to provide proper proof of such liability.
Dynatos will only be held to remunerate direct damages caused directly by use of the Licensed Dynatos Software, this however limited to the total License Fee.
To the maximum extent permitted by applicable law, Dynatos shall not be legally responsible for any indirect damages, including, without limitation, consequential, special, or incidental damages, damages for loss of profits, loss of revenues or investments, loss of privacy, business interruption (including, without limitation, as a result of system instability or partial or entire system failure), loss of business or business opportunities, loss of business information, loss of customers, damages due to increased expenditure or delayed planning or delayed investments, arising out of the performance of the services, or otherwise under or in connection with this agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable.
Without limitation of the foregoing, the following is excluded from liability:
- damage resulting from errors or negligence of the Client;
- reimbursement of all direct or indirect damage caused by the use of the provided Licensed
- compensation for damage fully or partially caused by software or hardware provided or
created by third parties, or by any other asset at the premises of the Client, or which may
have been introduced at the premises of the Client after conclusion of the Agreement;
- all claims submitted by third parties against the Client;
The Client is solely responsible for setting up procedures, which allow the Client at any time to reconstruct lost or altered files, data or programs, regardless of the cause of loss or alteration. The Client shall keep the necessary back-up copies of its computer programs, data and files on a daily basis. In the event of loss of data, Dynatos will only be held liable for the data lost between the time of the most recent daily back-up and the time that the proven defect in the delivered software was detected.
With regards to viruses, Dynatos responsibility is limited to installing anti-virus programs if this was expressly provided for in a Statement of Work or project assignment. Dynatos can never be held liable for viruses in the system of the Client and the consequences thereof.
The limitations on and exclusion of liability for damages under this Agreement apply regardless of whether liability would be based on breach of contract, tort (including negligence), strict or product liability, breach of warranty, or any other legal theory. These liability limitations shall remain in force for at least ten (10) years after the termination of the present Agreement and apply regardless of whether the Client informed Dynatos of the existence of a real and actual risk of damages. The Parties hereby acknowledge and accept that this constitutes a reasonable allocation of the risks.
ARTICLE 5 – INTELLECTUAL PROPERTY
Dynatos is the owner of all intellectual property rights in and to the Licensed Dynatos Software. Title, ownership rights, and any and all intellectual property rights in and to the Licensed Dynatos Software shall remain in Dynatos and/or its licensors and suppliers. To the best of Dynatos’ knowledge there is no pending or threatened, litigation against Dynatos which could materially impact upon its ability to perform its obligations under this License Agreement.
Dynatos has full power and right to license the Licensed Dynatos Software and perform all other terms of this License Agreement, and the use of Licensed Software, or the exercise of the licenses granted hereunder, will not violate or interfere with the intellectual property or contractual rights of any third party, including without limitation, those rights arising under copyright, trademark, trade secret or patent law, provided.
In the event that the use of the Licensed Dynatos Software is determined in a final, non-appealable court order to constitute an infringement of any intellectual property or contract right of any third party or its use is enjoined or restrained, or if in respect of any claim of infringement or violation of any intellectual property or contract right of any third party, Dynatos deems it advisable to do so, Dynatos will at its expense use commercially reasonable efforts to (i) procure the right for Client to continue to use in accordance with the terms of this Agreement the Licensed Dynatos Software, or (ii) replace the same with a noninfringing equivalent. The Client accepts that the aforementioned constitutes the sole and exclusive remedy of the Client in case of intellectual property rights infringement.
ARTICLE 6 – MISCELLANEOUS
(a) The Parties could gain access to each other’s confidential information. Confidential Information is construed as all information, regardless of its type, nature (oral, written, graphic, electronic etc.), storage medium and legal status, which is or has been exchanged between the Parties in accordance with and with respect of this Agreement (and these terms and conditions, which are also deemed confidential) and which is clearly marked as confidential.
The following are not considered to be confidential information:
- is part or shall be part of the public domain without the intervention of the receiving Party;
- at the time of its release was already lawfully obtained by the receiving Party and that was
not direct or indirect obtained from the Party who released the information; or
- was obtained in a lawful manner by the receiving Party from a third party without the release of this information being subject to restrictions;
- was developed independently by the receiving Party; or
- is legally released.
(b) The parties agree to treat each other’s confidential information as confidential and strictly on a “need to know” basis for the duration of the execution of the Project Services, as well as for the period of three (3) years following the termination of this Agreement, regardless of the grounds for termination. The Client shall procure legally binding adherence to this duty of confidentiality from their respective employees, directors, officers and agents.Furthermore, the Parties shall solely use this Confidential Information in order to carry out their respective obligations under the present Agreement. The Parties are not allowed to disclose this Confidential Information to any third parties without the prior and written approval of the other Party and in which case a similarly stringent duty of confidentiality shall be procured from said third party.
Dynatos shall also be entitled to include the Client in its reference list of customers, to publish a summarized description of the Project, and is granted a right and limited license to use the trade or company name, logo and the brand name of the Client, solely for advertisement purposes and public relations incentives for at least five (5) years from this Agreement.
6.2. Relation between the Parties
The relationship of Dynatos and Client established by this Agreement is that of independent contractors. Dynatos is entirely free and independent in performing the Agreement. There is no hierarchical relationship between Dynatos (or personnel on which Dynatos relies for the execution of the Agreement) and the Client. Nothing in this Agreement shall be construed as a creation of a partnership, joint venture, agency or otherwise as participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Each of the Parties is responsible for the payment of salaries and the related social contributions in so far their respective employees are subject to a permanent employment agreement.
6.3. Applicable Law
This Agreement is exclusively subject to Belgian law. Contrary to the statutory rules on competence of courts, any disputes between the parties shall be heard by the courts of Antwerp. The Client cannot file any claim regarding the services that are supplied more than 6 months after the event that gave rise to that claim or if the Client did not notify Dynatos of this within one month after the event occurred.
All written notifications relating to this Agreement, including changes of address, are deemed valid when sent to the above-mentioned address or to the address specified in the Specific Terms and Conditions and are deemed to have been received if sent by registered letter or courier service.
The nullity of one provision in this Agreement shall have no effect whatsoever on the validity of the other clauses, despite the nullity of the disputed clause. The Parties shall make every effort to replace the invalid clause with a valid clause with the same or largely the same economic effect as the invalid clause.
6.6. Forfeiture of rights, waiver of rights
The failure of one party to enforce any provision in this Agreement shall in no way affect the right of the party concerned to demand full compliance by the other party. Acquiescence in a breach by the other party of an obligation does not imply a waiver of the rights deriving from that obligation.
6.7. Import and Export
The Client warrants to comply with all applicable import and export regulations. Moreover, in case the Client imports or exports itself, it will indemnify Dynatos for any liability on the grounds of breach of the applicable import or export regulations. The Client, with the explicit exclusion of Dynatos, will be deemed to be the exporter and/or importer in case of imports or exports.