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This End-User License Agreement (“EULA”) is a legal agreement between you (either as an individual or on behalf of an entity) (“Licensee”) and Mevicg (“Mevicg”) regarding your use of Mevicg’s software and applications and any associated documentation (“Documentation”), upgrades, patches, updates, bug fixes, error corrections (“Updates”) and any related services offered to you by Mevicg (“Software”). This EULA will enter into force upon
Licensee’s acceptance of the EULA through mevicg.com (“Website”), use, installation and/or download of the Software (the “Use”), whichever comes first (“Effective Date”).
BY USING, INSTALLING, DOWNLOADING OR COPYING THE SOFTWARE, LICENSEE ACKNOWLEDGES ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA. IF LICENSEE DOES NOT ACCEPT THE TERMS AND CONDITIONS IN THIS EULA, LICENSEE MAY NOT USE, INSTALL, DOWNLOAD OR COPY THE SOFTWARE.
1.1 License. Subject to the terms and conditions of this EULA and upon payment of any fees, in accordance with this Section 1 (License) and in accordance with the Documentation, Mevicg grants Licensee a non-transferable, non-exclusive, nonsublicensable, revokable right and license (“License”) to (a) unless specified otherwise by Mevicg or this EULA, Use the Software as described in the Documentation and in Section 1.7 (Use Limitation), and (b) copy the Software once solely as necessary for back-up purposes, unless specified otherwise by Mevicg. Maintenance will only take place on initiative of Mevicg.
1.2 Type of License. The License is provided to Licensee subject to specific terms and conditions that further define the scope of the License (“License Type”). The License Type is a Business License unless otherwise communicated to Licensee in writing by Mevicg. The License Types are set out in this Section 1 (License). Licensee will not, and must not attempt, to Use the License outside of the scope of the applicable License Type and any other restrictions as set out in this Section 1 (License). Any actual or attempted Use of the Software outside of the scope of the License, is considered a breach of this EULA and an infringement of the rights of Mevicg as set out in this EULA.
1.3 Business License. A business license (“Business License”) grants a legal entity the License to Use the Software for commercial purposes. Following the Effective Date, or any other date as specified by Mevicg, the Business License is granted for the duration of the term as specified on the Website or any other term as specified by Mevicg. Licensee is entitled to Updates for the duration of the Business License term.
1.4 Educational License. An educational license (“Educational License”) grants an academic individual, employed or a student at an academic institution, or an academic institution the License to Use the Software for educational or academic purposes. The Educational License prohibits for-profit, commercial purposes. Following the Effective Date, the Educational License is granted for the duration of the term as specified on the Website or any other term as specified by Mevicg. Licensee is entitled to Updates for the duration of the Educational License.
1.5 Trial License. A trial license (“Trial License”) grants an individual (natural person) or legal entity, the License to Use the Software for evaluation purposes for the duration of fourteen (14) calendar days, or any other duration as specified by Mevicg, following the Effective Date. Licensee may at any time during the trial term, decide to upgrade from a Trial License to any other License Type, subject to payment of the applicable fees, as set out in this EULA or as otherwise determined by Mevicg. Licensee is entitled to Updates for the duration of the Trial License.
1.6 Use Limitation. The License is restricted to a certain number of authorized users that may Use the Software as part of the applicable License Type and, if applicable, as specified by Mevicg on the Website or via email to the Licensee. Each authorized user is qualified as a single individual person. Licensee will not breach this Section 1.7 (Use Limitation) by allowing one Seat to be shared by different individuals. Unless as otherwise specified by Mevicg, each Seat may be activated on one (1) computer or workstation.
1.7 Restrictions. Licensee shall not and shall not permit any third party to: (a) modify, adapt, create derivative works, translate, reverse engineer, disassemble, decode, decompile or otherwise attempt to access the source code, structure or proprietary algorithms of the Software, except as permitted by mandatory law and/or as described in the Documentation, (b) copy the Software, except as permitted under Section 1.1 (License), (c) lease, loan, rent, resell, make available, sublicense or distribute the Software to any third party, except as expressly permitted under this EULA, (d) allow a single Seat to be shared between two (2) or more individuals; (e) attempt to tamper with any restrictions or requirements that are implemented and designed to restrict the applicable scope of the License and the Seats ; or (f) modify or delete any copyright or proprietary notices or legends on or in the Software or Documentation.
1.8 Object Code. The License is limited to the object code. Rights to the source code are not provided, unless explicitly agreed upon otherwise in writing and / or unless the right of use concerns a reproduction that takes place in the context of loading, displaying or correcting errors.
1.9 Updates. Mevicg may from time-to-time release Updates to the Software, and the Software may automatically connect to third-party servers via the Internet to check for available Updates and may either: (a) automatically install an Update to the version of the Software; or (b) give Licensee the option of manually installing the Update. By installing the Software in accordance with the License and not disabling any automated checks for Updates, if applicable, Licensee consents to automatically request and receive Updates from Mevicg or third-party servers and agrees that this EULA will apply to all such Updates unless provided with separate terms, in which case those separate terms will solely or additionally apply. In case of a Personal License, Updates are provided during the first twelve (12) months following the Effective Date, unless otherwise specified by Mevicg. Mevicg encourages Licensee to download, install and use such Updates to maximize Licensee’s experience with the Software. If Licensee chooses to not install and use an available Update, Licensee may experience issues with delays, interruption, performance or security. If Updates are mandatory, Licensee is required to install such Updates within a time period as specified by Mevicg. If Licensee does not install the mandatory Updates within the specified time period, Licensee may lose access to certain Software. To the maximum extent permitted by applicable law, Mevicg will not be responsible for any liability that may arise due to Licensee’s failure to install and use an Update where use of such Update would avoid the liability.
1.10 Back-ups. Licensee will be fully responsible at all times for generating adequate back-ups. Under no circumstances will this be the responsibility of Mevicg. In no event will Mevicg be liable for the loss of data even if this is the result of an error in the Software.
2.1 Retention of title. Mevicg owns all rights, title, and interest in the Software, including but not limited to Qumulus, Documentation and any Updates, and other corrections, enhancements, derivative works or other modifications thereto, including all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (“Mevicg Property”). This EULA does not transfer the rights, title and interest in the Mevicg Property to Licensee in any way.
2.2 Feedback. Licensee may elect to provide suggestions, comments, and other feedback to Mevicg about desired and/or potential product developments, feature or enhancement of the Software and/or Documentation (“Feedback”). Mevicg may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation or restriction based on any intellectual property rights or otherwise. In the event such Feedback is incorporated in any Mevicg materials, Documentation, Software or other Mevicg Property, Mevicg shall be the sole owner of any (intellectual property) rights associated therewith.
3.1 Fees. Licensee shall pay the fees as specified by Mevicg either through the Website or in writing to Licensee (“Fees”) The Fees shall be due on or before the Effective Date and each anniversary thereof, (or any other date indicated by Mevicg) and all other Fees shall be payable within fourteen (14) days from the invoice sent as per Section 3.2 (Payment), unless otherwise stated by Mevicg. All Fees due for the number of Seats applicable to the Software set forth by Mevicg are payable even if the actual number of activated Seats is lower.
3.2 Payment. Mevicg will send the invoices electronically to the contact person and contact information indicated and provided by Licensee. Licensee may change such information upon written notice to Mevicg. Licensee shall pay the Fees as instructed by Mevicg. Except as otherwise expressly set forth in the EULA, all Fees are non-cancellable and non-refundable.
4.1 Open Source. The Software may contain open source or similar third-party materials (Mevicg OSS”) as specified in the Documentation and/or the text files accompanying the Software. The list of Mevicg OSS may be modified or revised at any time by Mevicg and such modification or revision shall be effective upon publishing the updated Documentation or by updating the text files, or by other reasonable means. Due to the open source (or similar) nature of the Mevicg OSS, its use is governed by separate terms and conditions and/or licenses of the applicable supplier (which may be identified in the Documentation or text files by Mevicg) and not this EULA. Licensee agrees to comply with all such Mevicg OSS licenses and/or terms and conditions and represents and warrants that prior to its use of the Mevicg OSS, it has accepted and agreed to the applicable third-party license for the Mevicg OSS.
4.2 ‘As Is’. Mevicg OSS is provided by Mevicg ‘as is’ and Mevicg hereby disclaims in respect of the Mevicg OSS, any warranties, conditions, or terms whether contractual or statutory, express or implied, including warranties of title, non-infringement, satisfactory quality or fitness for purpose.
5.1 Term. This EULA shall commence on the Effective Date. The duration of the applicable terms is either specified on the Website or otherwise determined by Mevicg to Licensee in writing.
5.2 Termination. The EULA may be terminated by either party upon a written notice to the other party within sixty (60) days before the end of the applicable term, as determined in Section 5.1 (Term). In the event Licensee breaches the EULA or Mevicg is required to do so by law, Mevicg may terminate this EULA for cause, at any time upon a written notice of thirty (30) days to Licensee. For the avoidance of doubt, and without limitation, a failure to pay any Fees when due or any breach of Sections 1 (License), 2 (Title), 3 (Fees and Payment) and 6 (Warranty Disclaimer) are considered a material breach for which no remedial notice is required.
5.3 Consequences of Termination. Upon termination (including expiry) of the EULA for any reason, the following applies: (a) the Licensee shall forthwith discontinue any Use of the Software, Documentation and any Mevicg Property and shall permanently return, destroy or delete any copies thereof and shall provide Mevicg with a written representation that it has complied with the foregoing obligations; (b) all payment obligations that have accrued prior to such termination or expiry shall survive and become payable; and (c) Sections 2 (Title), 7 (Liability), 10 (Miscellaneous) shall survive.
6.1 Limited Warranty. Mevicg warrants that for a period of sixty (60) days following the Effective Date, the Software shall substantially comply with the Documentation (“Warranty Period”).
6.2 Warranty Remedies. If Licensee informs Mevicg of a nonconformity with the warranty during the Warranty Period, Mevicg’s sole liability and Licensee’s sole remedy for any such warranty shall be (a) in Mevicg’s sole discretion: to repair any errors in the Software, or part thereof or to assist Licensee how to achieve substantially the same functionality of the Software as described in the Documentation; or (b) if the above remedies are technically or commercially unreasonable or do not lead to resolution, to refund the relevant Fees paid for the defective Software, in which case the License shall expire with respect to that Software.
6.3 Warranty Disclaimer. Notwithstanding Section 6.1 (Limited Warranty), the Software is provided on an ‘As Is’ basis as to its performance, accuracy, or completeness. Licensee shall Use the Software on its own risk. Mevicg disclaims any and all express and implied warranties, conditions or terms to the fullest extent permitted by law, including disclaiming any implied warranties, terms and conditions that the Software (i) is of satisfactory quality and will meet a specific purpose; (ii) is fully compatible with a computer machine, system and/or hardware; (iii) will operate uninterrupted, timely, secure or error-free in any way; (iv) may be used to provide results that are accurate or reliable; or (v) any errors in the Software will be corrected.
6.4 Licensee Warranty. Licensee warrants to Mevicg that it has the legal rights and authority to enter into and perform its obligations under this EULA. If Licensee acts on or behalf of a company or employer, Licensee warrants that it is authorized to enter into this EULA.
7.1 Limitation of Liability. Subject to Section 7.2 (Exemption of limitation of liability) below in no event shall: (a) Mevicg be liable under or in connection with this EULA whether in contract, tort (including negligence) or under statute for any: (i) loss of profits; (ii) loss of revenue; (iii) loss of goodwill; (iv) loss of Use; (v) loss of data; (vi) computer failure or malfunction or (vii) any indirect, consequential, special, exemplary or incidental damages of any kind, in each case however caused, even if Mevicg has been apprised of the likelihood of such damages, and (b)
Mevicg cumulative aggregate liability arising out or in connection with the EULA, whether in tort (including negligence), contract, indemnity or otherwise, exceed the amount of Fees received by Mevicg from Licensee pursuant to this EULA in the twelve (12) months prior to the date the cause of action arose.
7.2 Exemption of Limitation of Liability. Nothing in this EULA shall exclude or limit a party’s liability for gross negligence or wilful misconduct.
8.1 Privacy Policy. Mevicg’s Privacy Policy (located at: https://mevicg.com/privacy-policy/), as amended from time to time is hereby incorporated by reference to this EULA. Mevicg will process personal data as part of the provision of Fees and Payment, as described in Section 3 (Fees And Payment).
8.2 Personal Data. If Licensee submits personal data, as defined under the General Data Protection Regulation (“GDPR”) to Mevicg in connection with the Software and as described in the Privacy Policy, the processing of the personal data is regulated by this Section 8 (Personal Data) and the GDPR. In accordance with the GDPR, Licensee shall be considered a ‘controller’ and Mevicg as a ‘processor’ of the personal data. Mevicg shall process personal data under instruction of Licensee. Parties may agree on a separate data processing agreement, in accordance with Article 28 of the GDPR.
8.3 Processing. Licensee acknowledges that the data processing as instructed to Mevicg is lawful. Licensee also acknowledges that it has ascertained that Mevicg offers appropriate technical and organizational measures as referred to in Article 28 paragraph 1 of the GDPR, which also includes security measures as referred to in Article 32 of the GDPR.
8.4 Indemnity. Licensee will indemnify Mevicg against any allegation as a result of a violation of any person’s privacy related to the foregoing.
9.1 Reasonable Use. Licensee will make Use of the Software in a responsible manner. It is prohibited to Use the Software in a manner that will result in: (a) damage in the system of Mevicg and/or third parties; or (b) interference with its Use. Licensee will ensure that such damage and/or interference as describe herein, is not the result of misconfiguration on Licensee’s part.
9.2 Forbidden activities. It is not permitted to Use the Software for activities that are illegal and/or in violation of the EULA. The foregoing includes, amongst others, the following activities: (a) violation of third party’s rights or facilitating such violation, such as but not limited to intellectual property rights and privacy rights; (b) non compliance to law and other applicable regulations; (c) spanning of advertisement and/or other messages; (d) storage/distribution of (child)
pornography; (e) causing danger to the functioning of the computer systems or the network of Mevicg or third parties through the network, in particular caused by excessive sending of email or other data, badly secured systems or activity of viruses, Trojans or similar software; (f) sexual intimidation, racial prejudice and/or the harassment of individuals in any other manner; (g) distribution or making available to third parties in any other manner of obscene, insulting and tormenting material and/or other material of similar nature; (h) threats; (i) storage and distribution of viruses, worms and/or other destructive activities; (j) unauthorized access (hacking) of accounts, systems and/or networks of third parties and/or Mevicg and/or the performance or non-performance of any other act that makes hacking possible.
9.3 Access. Mevicg reserves the right, at Mevicg’s sole discretion, if forced by law or a court order; and/or a third party informs Mevicg and/or a suspicion exists that through Software a violation is made of the rights of a third party; there is a breach of the obligations in this EULA, to bar access to Software, to remove the information in question and/or suspend its other obligations until Licensee meets its obligations.
10.1 Governing Law and Jurisdiction. This EULA is governed by, construed and interpreted in accordance with the laws of the Netherlands. Both parties hereby consent to the exclusive jurisdiction and venue of the District Court of Rotterdam, the Netherlands. In each case the EULA shall be construed and enforced without regard to the United Conventions on Contracts for International Sale of Goods.
10.2 Name Licensee. If the business name used by Licensee denotes more than one (legal) person or organization, each will be responsible for the entire fulfilment of the obligations that may flow forth from the EULA with Mevicg.
10.3 Non-Assignment. Licensee may not assign, transfer, or novate this EULA, nor the rights and license granted herein, in whole or in part and without the Mevicg’s express written consent and any such attempt will be void. Mevicg may (a) assign or novate this EULA in whole or in part to an affiliate, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Software to third parties, provided that such subcontract does not relieve Mevicg of any to its obligations under this EULA.
10.4 Severability. If at any time any part of this EULA is held to be or becomes void or otherwise unenforceable for any reason under law, the validity, legality and/or enforceability of the remaining provisions of this EULA shall not in any way be affected or impaired as a result of that omission and the provision in question shall apply with the minimum modifications necessary to make it valid and enforceable.
10.5 Notices. Any notices required or permitted under the EULA or required by law will be in writing and in the Dutch or English language, and be delivered in person, or sent by registered email or courier, or email, to the contact person indicated by either party to the other party. Irrespective of the foregoing, any notice to Mevicg should always be sent with a copy to: mail@mevicg.com.
10.6 Entire Agreement. This EULA sets forth the entire agreement and supersedes any and all prior agreements between the parties with respect to the subject matter hereof. No change, modification of any provision of the EULA shall be valid, unless set forth in a written document executed between both parties. This EULA may be executed with electronic or electronically scanned signatures.