By accepting the terms of this document you enter into an agreement with TALLCOMPONENTS B.V. (“TC”), whose principal place of business is in Nijmegen, The Netherlands; and therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, TC and you agree as follows:
LICENSE “TC Software”
In exchange for the applicable initial and annual fees and for the term described below, TC hereby grants to you, with respect to all copies of the TC Software in object code form, a nonexclusive and worldwide license to:
(a) use the TC Software on a single server (Server License) run by you, that can be accessed by one or more users concurrently. The number of users and number of CPU’s are irrelevant in this respect. TC Software contains a mechanism that locks itself to a particular server, using the NETBIOS name of the server. You are allowed to move the license once to another machine.
(b) combine the TC Software with other software to form a combined product with added primary functionality in such a way that the functionality of the TC Software is secondary to the combined product (“Combined Product”); provided any portion of the TC Software so combined continues to be subject to the terms and conditions of this agreement.
(c) brand, distribute, sublicense and support the Combined Product to third parties as your product, provided that (i) the Combined Product is an end-product and not a software development toolkit or a software development environment and does not directly compete with the TC Software or any other product of TC, and (ii) the Combined Product does not in any way expose the Application Product Interface of the TC Software, in which cases branding, distribution, and/or sublicensing is prohibited.
ACCEPTANCE. You acknowledge and confirm that you have been granted ample time to investigate and test whether the TC Software performs in accordance to your requirements and the specifications as set forth in the Developer Guide of the TC Software.
SUPPORT. As an integral part of your license, TC will, for the duration of your license, provide support services to you, which include development, support, maintenance and distribution of updates and upgrades. Support services will only be provided in connection to the most current version of the TC Software
ACTIVATION. You understand and agree that TC will provide you with a mechanism to activate your license once. TC may allow additional activations, at its sole discretion.
TERM AND TERMINATION LICENSE. Unless stated otherwise in writing by TC, licenses hereunder, including support services, will automatically terminate in case the annual fee has not been fully paid upon thirty (30) days of the anniversary of the license. In such case you may no longer combine, brand, distribute, sublicense or use the TC Software in any other way. However, your customers may continue to use, and you may continue to support, existing Combined Products already used by your customers before the termination of the license. Furthermore, TC may revoke and terminate your license if you materially breach any provision of this agreement.
OWNERSHIP. You agree that as between you and TC, TC is the sole and exclusive owner of all right, title and interest worldwide, including in countries where such rights have not yet been used, exercised or registered, in the TC Software and you will not directly or indirectly question, attack, contest or in any other manner impugn the value, validity or enforceability of TC Software or any other software from TC. You will not remove, alter, cover or obfuscate any patent or copyright notice or other proprietary or restrictive notice or legend placed or embedded by TC on TC’s Software.
REVERSE ENGINEERING. You will refrain from any reverse engineering, disassembly, or any other attempt to obtain TC Software in source code or assembly code form.
PAYMENT. You warrant and guarantee that the initial royalty fee and the annual fee of 25% of the initial royalty fee, will be paid in full immediately and irrevocably upon receipt of TC’s invoice by email or any other way of communication. No royalties will be due for your use of TC Software for evaluation, demonstration or support purposes. TC shall be liable for all taxes, duties, levies, tariffs or charges of any kind (including withholding or value added taxes) imposed by a governmental entity of the Netherlands for the transfer of TC Software and such taxes, duties, levies, tariffs or charges shall be deemed to be included in the price of such software.
INDEMNIFICATION. You agree to indemnify TC and to undertake to defend and hold TC harmless from and against any and all claims, demands, causes of action, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising from your activities under this agreement, including, but not limited to, any product liability claims or actions, or the unauthorized use of any trademark, copyright, patent, process or method.
DISCLAIMERS. TC SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT (WHETHER EXPRESS, IMPLIED, OR STATUTORY) REGARDING, RELATING TO, CONNECTED WITH OR ARISING OUT OF TC SOFTWARE.
LIMITATIONS ON KINDS OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION ON AMOUNT OF DAMAGES. EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT FOR DAMAGES OF ANY KIND, INCLUDING RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED, IN THE AGGREGATE, THE FEES AND PAYMENTS PAID BY YOU.
ASSIGNMENT. You may not assign, sublicense or otherwise transfer any rights under this agreement.
GOVERNING LAW AND JURISDICTION. This agreement shall be governed by and construed in accordance with the laws of the Netherlands, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. With respect to any disputes arising out of this agreement, the parties hereby submit exclusively to the personal jurisdiction of the courts in Amsterdam, the Netherlands. The parties consent and agree that each such court is a convenient forum for, and has proper venue over, the resolution of all legal actions, proceedings and disputes arising out of or relating to this agreement. Notwithstanding the foregoing, TC may elect to enforce any of its rights hereunder in the local courts of your country.
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