Xopus EULA

Article 1. Definitions

1.1 For the application of this Agreement:
a. a computer system is understood to mean: the computer configuration for which the Program is intended;
b. Program is understood to mean: the Xopus Program in a computer readable format (including the example files in maps “examples” and “config”) as downloaded from the website www.xopus.com;
c. documentation is understood to mean: the manual supplied with the Program concerning its functioning and objective. 

Article 2. Right of use

2.1 The Supplier hereby grants to the Acquirer the non-exclusive, non-transferable right, which the Acquirer hereby accepts, to use the Program for the term of the Agreement and under the conditions mentioned below.
The right of use shall only enter into force after the Acquirer has transferred the relevant amount due, and is limited to the normal operational and/or professional activities of the Acquirer.

2.2 Purchase conditions or any other general terms and conditions of the Acquirer do not apply, unless explicitly accepted by the Supplier in writing.

Article 3. Scope of the right of use

3.1 At his own discretion the Supplier issues new versions and/or new releases which may be downloaded by the Acquirer. The Acquirer is not obliged to use the new versions and/or new releases. The stipulations of this agreement apply mutatis mutandis to new versions and/or new releases.

3.2 The Acquirer is allowed to:
1. load and display the Program if and insofar as technically necessary and in accordance with the allowed purposes of use;

3.3 The Acquirer is not allowed to:

1. rent out or lend out the whole Program or part of it and/or any copy of it;
   
2. execute, transmit or store the Program, other than as part of the actions referred to in 3.2 (1.), without prior permission in writing from the Supplier;
   
3. to multiply the Program for personal exercise, study or use;
   
4. to change or modify the information in or on the Program concerning the maker or the confidential character of the Program or any reference to the Supplier, without explicit permission in writing from the Supplier;
   
5. to publish the Program in any other way or to multiply it, including changes, unless the Acquirer has been granted explicit permission to do so pursuant to this Agreement. 

3.4 The Acquirer is allowed to make a copy of the Program and to translate its code form, in case these actions are indispensable to acquire information necessary to realise the interoperability of the Program with other programs, provided that:
a. these actions are exclusively carried out by the Acquirer or by a third party authorized by the Acquirer in writing;
b. the data required to realise the interoperability are not readily and easily available to the Acquirer or the third party authorized by him;
c. these actions remain limited to those parts of the Program required for the realisation of the interoperability, which are exclusively understood to mean the files in the maps “config” and “examples”.

3.5 The Acquirer may only use information acquired on the basis of art. 3.4 for the realisation of the interoperability of the Programs. This information may only be provided to third parties if necessary for the realisation of the interoperability. This information may not be used for the development, production or putting on the market of a computer program which, vis-à-vis the Program cannot be considered a new original work as referred to in art. 13 of the Copyright Act, or, for any other actions infringing copyright.

3.6 If the Acquirer wishes to execute the actions mentioned in subclauses 3.4 and 3.5 or have them executed, the Acquirer shall request from the Supplier the required information specified and in writing. Subsequently, the Supplier shall within a reasonable term assess whether the Acquirer may have the requested information at his disposal and on which conditions, including financial conditions and conditions concerning any third party called in by the Acquirer. 

Article 4. Warranty

4.1 For a period of three months after installation of the Program by the Acquirer, the Supplier is obliged to solve any errors in the Program to the best of his ability in case the Program does not comply with the specifications laid down in writing (as included in the corresponding Documentation). Provided that the Acquirer has paid the fees due for use of the Program on time the Supplier shall carry out any repair free of charge. In case of unauthorized use of the Program the Supplier has the right to charge the Acquirer for any repair costs, as well as in case of any causes attributable or not to the Supplier.

4.2 The Supplier declares that he has not included any functionality in the Program which may harm the Program itself or any other program or data.

4.3 Supplier declares that the Program is virus free.

4.4 Supplier does not guarantee that the Program meets the objectives of the Acquirer with regard to its application.

Article 5. Intellectual property

5.1 The copyright and all other rights concerning intellectual property with regard to the Program are exclusively vested in the Supplier and/or his suppliers or licensors. Nowhere in this Agreement a transfer of such right is intended, neither in its entirety nor in part.
The Acquirer recognizes these rights and shall in any which way refrain from (in)direct infringement of these rights.

Article 6. Liability

6.1 The Supplier excludes any liability for any damage, direct and indirect, whatever the cause, ensuing from or related to non-compliance with, or not properly complying with this Agreement, with the exception of liability for direct damage as a result of intention or gross negligence of the Supplier, employees of the Supplier or third parties hired by the Supplier, up to the maximum amount of € 1,000 per event or series of related events.

6.2 The Supplier is never liable for the consequences of any changes or additions to the Program realised by or for the Acquirer.

6.3 Furthermore, liability for shortcomings, resulting in death or physical injury, as well as decreased value due to malicious damage to property, shall be limited to the maximum amount of € 1,000 per event or series of related events.

6.4 Any claims in view of the above shall be reported in writing to the Supplier within two months after the damage arose, under penalty of forfeiture of all claims for compensation.

6.5 The Acquirer indemnifies the Supplier against all possible claims of third parties related to the above.

6.6 No party shall be held liable for damage as a result of a delay in the compliance with or failure to comply with any obligation under this Agreement if it is caused by force majeure. Force majeure on the part of the Supplier is among others understood to mean non-compliance of third-party suppliers with their obligations to the Supplier. The other party shall be notified forthwith about the force majeure.

Article 7. Fees and payment

7.1 Fees for the right to use the Program to be paid by the Acquirer to the Supplier are given on the website www.xopus.com. The Supplier has the right to raise these fees annually by 5% effective from the start of the calendar year.
The fees for right of use are exclusive of VAT.

7.2 The fees referred to shall have to be paid within 30 days after the Supplier has sent the invoice in question. In case the Acquirer fails to pay on time the Acquirer, without notice of default or warning, is liable to pay statutory interest on the amount due.

7.3 If the Acquirer also fails to pay after a written warning he shall be liable as well to compensate the Supplier for all costs incurred by the Supplier relating to the above warning, as well as for all further collection costs, in legal and other proceedings.

Article 8. Term and termination

8.1 This agreement shall enter into force as soon as the Acquirer has downloaded the Program and shall be valid for an indefinite period of time.

8.2 Upon termination of this Agreement the Acquirer is obliged to immediately destroy the Program, including any provided new versions and/or releases.

8.3 Notwithstanding the stipulation of subclause 1 of this article, each party has the right to immediately terminate this Agreement in case the other party fails seriously in the performance of his obligations under this Agreement, and the other party has not cured or remedied the failure or shortcoming within 30 days after notification of that fact in writing, or if one of the parties is declared bankrupt, is granted a moratorium on payments or if one of the parties has offered a payment arrangement to a creditor.

Article 9. Inspection

9.1 The Supplier has the right to check, or to let a third party check on his behalf, during office hours on work days on the premises of the Acquirer whether the Acquirer makes use of unauthorized copies of the Program or whether the Acquirer makes use of the Program for his normal operational and/or professional activities. The Acquirer shall cooperate with the above inspection. The costs of the inspection shall be borne by the Supplier unless it is established that the Acquirer has not complied with his obligations in question. A third party authorized by the Supplier has to sign beforehand to the satisfaction of the Acquirer a confidentiality agreement.

Article 10. Confidentiality

10.1     Parties shall be bound to reciprocal confidentiality concerning confidential information of the other party; each party shall, in all reasonableness, take precautions in order to be able to comply with this obligation in the best possible manner.

10.2     Not limitatively confidential information shall include, the Program itself and the data processed with the Program, coming from the Acquirer, as well as any information which in all reasonableness may be considered confidential.

Article 11. Final stipulations

11.1     The rights and obligations of the parties with regard to the use of the Program are exclusively laid down in this Agreement; all agreements reached earlier in that respect are non-binding.

11.2     This Agreement may only be changed if this has been agreed in writing.

11.3     This Agreement is governed by the Law of the Netherlands. In the event that a dispute arises with regard to the interpretation or execution of this Agreement, parties shall try to settle the dispute in question as swiftly as possible in an amicable way. In case an amicable settlement of the dispute is not realised, the dispute shall be settled in accordance with the mediation regulations of the Foundation for the Settlement of Automation Disputes (SGOA, Stichting Geschillenoplossing Organisatie en Automatisering), established at Rijswijk; the Mini-trial regulations of that Foundation also apply.

11.4     The stipulation in the previous subclause is without prejudice to the right of the party, who in all reasonableness is of the opinion that the subject of the dispute is of such an urgent nature that its settlement can not wait, to take the matter to Court in The Hague to seek settlement through interlocutory proceedings.