MonkeyProof Universal Commercial License
1 Definitions
Words and expressions that are capitalized in this licensing agreement have
the following meaning:
Activation:
The process of validating a License; during this process the name of the
Registered User may be linked to the License (if applicable)
Binary Code:
The program code of the Software, expressed in a form that is suitable for
execution on a Target, including, but not limited to, MATLAB p-code,
obfuscated code, MATLAB m-Code, object code, and/or executable code
Compiled Software:
A version of the Software created from the Source Code or the Binary Code
by means of the MATLAB Compiler or the MATLAB Compiler SDK for use outside
the MathWorks Environment
Educational Institute:
An accredited educational institution or establishment which offers courses
of study that lead to a certification that is recognized as part of a
country's educational system; in order to qualify as Educational Institute
for the purposes of this License more than 90% of the students of said
educational institution or establishment must be enrolled in courses
leading to a recognized certification
Educational Purposes:
Purposes for which an Educational Institute may use the Software that are
related to the provision of educational courses leading to a certification
that is recognized as part of a country's educational system; this
definition also applies to purposes of academic research carried out by an
Educational Institute with the express limitation that said research shall
not be carried out on behalf of, or financed by, commercial parties
MathWorks Environment:
Products by MathWorks Inc. that are capable of executing or otherwise
processing the Software, including, but not limited, to MATLAB, Simulink,
Stateflow, Simscape, and/or SimEvents
IP Rights:
Any and all rights available under applicable Intellectual Property law,
including, but not limited to, copyright, patents, design rights,
trademarks and trademark rights, database rights, and trade secrets
License:
This licensing agreement
Licensee:
The person or entity named on the invoice or License Information Sheet
Licensor:
MonkeyProof Solutions B.V.
License Fee:
The monetary compensation to be paid to Licensor for the right to use the
Software, but excluding any right to maintenance
License Server:
A computer system capable of providing License Tokens to Targets in
compliance with this license and the maximum number of concurrently running
copies of the Software
License Token:
An electronic means to provide permission for a Target to execute the
Software in compliance with this License, regardless of the actual
implementation of said means
Maintenance:
The process of providing updates, bug fixes and other changes to the
Software; for the purposes of this License there is no obligation for the
Licensee to obtain Maintenance or for the Licensor to provide Maintenance
Maintenance Fee:
The monetary compensation to be paid to Licensor for Maintenance, but
excluding any right to use the Software
Maintenance Period:
The period for which the Maintenance Fee has been paid, usually specified
as a start- and an end date
Open Source Software:
Software licensed under a license recognized by the Open Source Initiative
under the Open Source Definition; for more information
see https://opensource.org/osd
Registered User:
The natural person to whom the License is registered
Server Target:
A hardware system (physical or virtual) capable of running the Software
that is specifically designed and set up to provide functionality to Target
computers; such functionality may or may not include the functionality
provided by the Software
Software:
The software product or products developed or supplied by Licensor and
licensed to Licensee under this License; the specific Software being
licensed under this License is listed on the corresponding invoice or
License Information Sheet
Software Documentation:
Any and all documentation and/or related to the Software, including, but
not limited, descriptions of Software API's and independent of its
appearance (text, drawings, etc.) or medium (paper, electronic, etc.); it
should be noted that this definition includes, but is not limited to,
documentation and explanations included in the Source Code
Source Code:
The program code of the Software, expressed in a form that is suitable for
reading and modification by humans regardless of the language used; Source
Code may include explanations or documentation of the Software regardless
of the specific form or content of said explanations or documentation
Sub-Licensee:
A third party to whom Licensee grants certain rights to use the Software
Target:
A hardware system (physical or virtual) capable of running the Software;
this definition explicitly excludes Server Targets
Work:
Any software that provides a defined set of functions and/or capabilities
2 Applicability
This License applies to the following Software:
A. Code Checker for MATLAB
B. Data Dictionary Manager
C. Database Connector for MATLAB
D. GUI Framework for MATLAB
E. Reporting Toolkit for MATLAB
F. Utilities for MATLAB
This License applies to all IP Rights vested in the Software and owned by
Licensor.
3 Licensee Rights to the Software
3.1 General
Licensee is granted the rights specified in this License only for those
products listed on the invoice covering the License Fee, or on the License
Information Sheet included with the physical delivery of the Software. No
rights or license are granted for any Software that is not listed on said
invoice or said License Information Sheet. Nothing in this License shall be
interpreted or construed as a transfer of ownership of the IP Rights licensed
to Licensee herein. No rights are granted other than as expressly conferred
to Licensee in this License, and this License shall not be construed or
interpreted otherwise.
3.2 Source Code, Binary Code
Any and all rights granted to Licensee in this License only apply to the
Software in Binary Code form. No rights are granted with respect to the
Source Code of the Software.
3.3 Public Performance
Under this License, Licensee shall never make the Software available publicly
by any means, including, but not limited to, publishing the Software on the
internet. This includes, but is not limited to, using the Software to
provide services that are publicly available, whether on the internet or
otherwise, and regardless of whether the Software is used to provide such
services by itself or as part of a larger Work. This also includes, but is
not limited to, renting, leasing or loaning the Software to third parties.
Licensee can contact Licensor for a separate license agreement that permits
public performance of the Software.
3.4 Reproduction Rights
Licensee has the right to reproduce the Software under the following
cumulative conditions:
A. Licensee may create an unlimited number of copies of the Software for
its legitimate use in full compliance with this License, under the
condition that none of these copies are made available to any third
party except as stipulated in Article 3.6. This right excludes copies
made for the purpose of executing the Software, which are governed by
the next bullet point B.
B. Depending on the license model granted to Licensee by Licensor, the
Software may be executed concurrently on one or more Targets as
follows:
B.1 "Node-locked":
The Software shall be executed on only one (1) Target. Said Target
shall be identified through electronic means at the choice of Licensor.
Licensee shall have the right to change the designated Target during
the Maintenance Period applicable to the Software. Licensee shall not
change the designated Target outside the Maintenance Period.
B.2 "Named-user":
The Software may be run concurrently on Targets on which a valid
combination of a username and a password have been entered with the
express purpose of running the Software; said username and password may
only be used or entered by the Registered User, regardless of whether
that Registered User is an employee of Licensee. The name of the
Registered User shall be registered during Activation. A limit on the
number of Targets on which the Software is running concurrently may
apply and shall be specified by Licensor on the applicable invoice or
License Information Sheet. Licensee shall have the right to change the
designated Registered User during the Maintenance Period applicable to
the Software.
B.3 "License-pool":
The Software may be run on any Target owned or
controlled by Licensee, provided that the Software has obtained a valid
License Token from a License Server designated to control and limit the
number of concurrently executing copies of the Software. License
Tokens shall never be made available to Targets not owned or controlled
by Licensee. The maximum number of concurrently executing copies of
the Software is listed on the applicable invoice or License Information
Sheet.
B.4 "Volume-license":
The Software may be run on any Target owned or controlled by Licensee,
regardless of the number of Targets running the Software. The Software
may be run on one or more Server Targets owned or controlled by
Licensee; Licensor may place limitations on the number of Server
Targets on which the Software is run concurrently and/or on the number
of connections made with, or Targets served by, the Server Target or
Server Targets. Said limitations shall be noted on the applicable
invoice or License Information Sheet. The Software shall not be run on
any other Target or Server Target. The License Lee for this license
model shall be determined by the average number of concurrently
executing copies of the Software over the license period, as estimated
beforehand by Licensee (the "Prepaid" option) or as determined after
the fact by Licensee (the "Postpaid" option).
3.5 Usage Rights
Depending on the license model granted to Licensee by Licensor, Licensee may
use the software only as follows:
A. "Standard":
The Software shall be used only within the MathWorks Environment, or as a
stand-alone application running outside the MathWorks Environment that is
not part of a larger Work. The Licensee is prohibited from using the
Software in any other way, including, but not limited to, using the MATLAB
Compiler or the MATLAB Compiler SDK or any other means to create a version
of the Software that can be run outside the MathWorks Environment as part
of a larger Work.
B. "Pro":
The Software may be used within the MathWorks Environment. The Software
may also be used with the MATLAB Compiler or the MATLAB Compiler SDK to
create a Work that can be run outside the MathWorks Environment, whether
stand-alone or as part of a larger Work.
C. "Developer":
The licensing model "Pro" defined above under bullet point B applies. In
addition, the Licensee shall be permitted to expand the Software using the
hooks mechanism and/or documented API built in by Licensor for this
purpose. The Licensee is also entitled to one (1) copy of the
documentation describing the interface to the Software to be used for
expansion.
D. "Education":
The licensing model "standard" defined above under bullet point A applies,
with the following limitation: The Licensee must be an Educational
Institute as defined in Article 1 above, and the Software shall only be
used for Educational Purposes.
Under all license models listed in this Article 3.5 Licensee may incorporate
one or more expansions developed and/or distributed by another Licensee if
that other Licensee has developed said expansion under the "Developer"
license model. No additional License Fee shall be due for such incorporation.
Any arrangements regarding licensing and fees for the expansion itself shall
be arranged between the developer of the expansion and Licensee and are
outside the scope of this License.
3.6 Sub-Licensing and Distribution
Licensee can sub-license and distribute the Software under the following
cumulative conditions:
A. The following Software cannot be sub-licensed or distributed at all:
A.1 Data Dictionary Manager
A.2 Code Checker for MATLAB
B. All other Software can be sub-licensed and distributed if the Software
is licensed under the "Pro" or "Developer" models defined in
Article 3.5 above.
C. Only Compiled Software may be sub-licensed and distributed by Licensee.
D. The sub-licensed Software may only be distributed by Licensee as
integral part of a larger Work. Said Work shall not reproduce the full
Software functionality or make said functionality available to the
Sub-Licensee, and shall not compete with any products, services or
businesses of Licensor, as reasonably determined by Licensor.
E. This right to sub-license and distribute the Software does not include
the Software Documentation and/or any applicable API.
F. The rights conferred on the Sub-Licensee shall be limited as follows:
F.1 Reproduction:
The Sub-Licensee may only create reproductions of the Software for
the purpose of executing the Software as part of a larger Work. In
addition, one (1) backup copy is permitted.
F.2 Distribution:
(further) distribution of the Software, even as part of a larger
Work, shall not be permitted. Licensee or Sub-Licensee can contact
Licensor for a separate license agreement permitting further
distribution of the Software.
F.3 Sub-licensing:
The Sub-Licensee shall not be permitted to sub-license the Software.
Licensee and/or Sub-Licensee may contact Licensor for a separate
license agreement that permits further sub-licensing of the Software.
F.4. Derivative works:
The Sub-Licensee shall not be permitted to create derivative works
based on the Software.
F.5. Public performance:
The Software shall not be made public by Sub-Licensee. This includes,
but is not limited to, making the Software available as part of a
commercial service, regardless of whether said service is available
on the internet or through other means.
For Licenses that include the "Developer" license model defined in
Article 3.5, the following additional conditions for sub-licensing and
distribution apply:
A. Licensee may freely license and distribute the expansions developed by
Licensee using the Software under any license model and/or conditions.
Said expansions, license models and/or conditions are outside the scope
of this License. This permission is limited to the expansion itself
only, and explicitly excludes the Software used to develop the
expansion or expansions or parts thereof, and/or any Software or parts
thereof needed to run or otherwise use the expansion or expansions or
parts thereof.
B. No additional License Fee is applicable to any such licensing or
distribution of expansions developed by Licensee.
C. Licensor, its directors, employees, consultants and contractors shall
never be liable for the expansion or expansions, any aspects thereof,
or any damages caused by the expansion or expansions or their use.
Licensee shall hold harmless Licensor, its directors, employees,
consultants and contractors against any and all claims and/or judgments
related to any and all expansions distributed by Licensee, regardless
of the nature of said claims or judgments. Licensee shall hold
harmless Licensor, its directors, employees, consultants and
contractors for all cost incurred in the defense against such claims
and/or judgments.
3.7 Creating Derivative Works
Licensee may create derivative works using the Software under the following
cumulative conditions:
A. The Software may be included unmodified in a larger Work, regardless of
the mechanism used to include the Software.
B. Software licensed under the "Developer" model defined in Article 3.5
above may be expanded using the hooks mechanism and/or documented API
built in by Licensor for this purpose.
C. Modifications to or adaptations of the Software are not permitted,
other than as foreseen in the previous bullet point B.
E. This Article 3.7 does not cover distribution or sub-licensing rights.
Article 3.6 fully applies.
3.8 License Matrix
The rights granted in Articles 3.4 through 3.7 are summarized in the
following Licensing Matrix:
Standard
Node-locked
* Unlimited copies for legitimate use
* Executed only on one (1) Target
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* Perpetual or time-limited license
Named-user
* Unlimited copies for legitimate use
* Executed on Targets with a valid username and password
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* Perpetual or time-limited license
License-pool
* Unlimited copies for legitimate use
* Executed on Targets with a valid License Token obtained from a
License Server
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* Perpetual or time-limited license
Volume-License
* Unlimited copies for legitimate use
* Unlimited execution on Targets owned or controlled by Licensee
* Limited or unlimited execution on Server Targets owned or controlled
by Licensee
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* Time-limited license
Pro
Node-locked
* Unlimited copies for legitimate use
* Executed only on one (1) target
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed for some Software products
* No expansion of the Software allowed
* Perpetual or time-limited license
Named-user
* Unlimited copies for legitimate use
* Executed on Targets with a valid username and password
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed for some Software products
* No expansion of the Software allowed
* Perpetual or time-limited license
License-pool
* Unlimited copies for legitimate use
* Executed on Targets with a valid License Token obtained from a
License Server
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed for some Software products
* No expansion of the Software allowed
* Perpetual or time-limited license
Volume-License
* Unlimited copies for legitimate use
* Unlimited execution on Targets owned or controlled by Licensee
* Limited or unlimited execution on Server Targets owned or controlled
by Licensee
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed
* No expansion of the Software allowed for some Software products
* Time-limited license
Developer
Node-locked
* Unlimited copies for legitimate use
* Executed only on one (1) target
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed for some Software products
* Expansion of the Software allowed
* Perpetual or time-limited license
* Free distribution and licensing of expansions developed by Licensee
Named-user
* Unlimited copies for legitimate use
* Executed on Targets with a valid username and password
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed
* Expansion of the Software allowed for some Software products
* Perpetual or time-limited license
* Free distribution and licensing of expansions developed by Licensee
License-pool
* Unlimited copies for legitimate use
* Executed on Targets with a valid License Token obtained from a
License Server
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed for some Software products
* Expansion of the Software allowed
* Perpetual or time-limited license
* Free distribution and licensing of expansions developed by Licensee
Volume-License
* Unlimited copies for legitimate use
* Unlimited execution on Targets owned or controlled by Licensee
* Limited or unlimited execution on Server Targets owned or controlled
by Licensee
* Executed within the MathWorks Environment, or compiled for
stand-alone execution
* Sub-licensing or distribution allowed
* Expansion of the Software allowed for some Software products
* Time-limited license
* Free distribution and licensing of expansions developed by Licensee
Educational
Node-locked
* Unlimited copies for legitimate use
* Executed only on one (1) Target
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* All granted rights are restricted to Educational Institutes and Use
for Educational Purposes
* Perpetual or time-limited license
Named-user
* Unlimited copies for legitimate use
* Executed on Targets with a valid username and password
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* All granted rights are restricted to Educational Institutes and Use
for Educational Purposes
* Perpetual or time-limited license
License-pool
* Unlimited copies for legitimate use
* Executed on Targets with a valid License Token obtained from a
License Server
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* All granted rights are restricted to Educational Institutes and Use
for Educational Purposes
* Perpetual or time-limited license
Volume-License
* Unlimited copies for legitimate use
* Unlimited execution on Targets owned or controlled by Licensee
* Limited or unlimited execution on Server Targets owned or controlled
by Licensee
* Executed only within the MathWorks Environment, or as a stand-alone
application that is not part of a larger Work
* No sub-licensing or distribution allowed
* No expansion of the Software allowed
* All granted rights are restricted to Educational Institutes and Use
for Educational Purposes
* Time-limited license
In case of conflict between this Article 3.8 and any other Articles in this
License, the other Article or Articles shall have precedence.
3.9 Transferability
Licensee cannot transfer or sell this License to any other party, except as
permitted by applicable law.
3.10 Exclusivity
This License and all the rights granted herein to Licensee are not exclusive.
3.11 Geographical Limitations
This License is granted world-wide. No geographical limitations apply. This
absence of geographical limitations shall not be interpreted or construed as
an obligation by Licensor to provide maintenance or support for the Software
in a specific geographical area or outside its business hours.
3.12 Authorized Persons
The licensed Software may be used by all employees, contractors and
consultants of Licensee, within the stipulations and limitations of this
License. Contractors and consultants of Licensee may only use the Software
in the performance of their duties towards Licensee, and only when performing
these duties as members of a team or teams led and controlled by Licensee.
Licensee shall not make the Software available to any other persons or
entities or allow any other persons or entities to use the Software.
3.13 Exclusions
This Article 3 only grants rights to the Software. It does not grant any
rights to the Software Documentation, nor shall it be construed or
interpreted to grant any such rights.
4 Licensee Rights to the Software Documentation
4.1 General
Licensee is granted the rights to the Software Documentation defined in
Articles 4.2 through 4.5 (inclusive). No other rights are granted to
Licensee and this License shall not be construed or interpreted to grant any
such other rights. This License shall also not be construed or interpreted
as a transfer or sale of IP Rights to the Software Documentation to Licensee.
4.2 Reproduction
Licensee may create an unlimited number of copies of the Software
Documentation for its own purposes. This includes, but is not limited to,
making the Software Documentation available on internal networks of Licensee,
provided that access is limited to employees, consultants and contractors of
Licensee only. Contractors and consultants of Licensee may only use the
Software Documentation in the performance of their duties towards Licensee,
and only when performing these duties as members of a team or teams led and
controlled by Licensee.
4.3 Derivative Works
Licensee may not create any derivate works based on, using or incorporating
the Software Documentation.
4.4 Distribution
Licensee may not distribute or sub-license the Software Documentation,
stand-alone or as part of a larger Work.
4.5 Public Performance
Licensee shall never make the Software Documentation available publicly by
any means, including, but not limited to, publishing the Software
Documentation on the internet.
5 Exclusions
5.1 General
This License does not grant any rights to Licensee other than as defined in
Articles 3 and/or 4, regardless of the type of Intellectual Property
applicable.
5.2 Decompilation, Deconstruction, Disassembly, Reverse Engineering,
Conversion into Source Code
Except as permitted by applicable law or by applicable Open Source Software
licenses, Licensee shall not decompile, deconstruct, disassemble, reverse
engineer, or otherwise convert into Source Code the Software.
6 Third Party Rights
6.1 Infringements of Third Party Rights
Licensor guarantees that the Software does not infringe the IP Rights of
third parties.
6.2 Open Source Software
The Software may - at the choice of Licensor - include Open Source Software.
Licensor shall ensure that the conditions of the applicable Open Source
Software license or licenses do not conflict with the conditions of this
License and do not restrict the Usage Rights of Licensee as defined in
Articles 3 and 4. Licensor shall include the required notices and
documentation with the Software and/or the Software Documentation.
6.3 Liability for Infringements
Liability of Licensor towards Licensee for any and all infringements of the
obligations under Articles 6.1 and 6.2 is limited to the following:
A. Licensor shall be liable to Licensee, its directors and its employees,
consultants and contractors for all direct damages related to
infringement of third party IP rights under Articles 6.1 and 6.2, under
the following conditions:
A.1 All liability of Licensor for damages under this entire Article 6
shall at all times be limited to the amount payable by the
applicable liability insurance of Licensor, increased by the amount
of the deductible applicable to that insurance. In the absence of
any applicable liability insurance, the liability of Licensor shall
at all times be limited to the amount of the most recent License Fee
paid by Licensee for the infringing Software. Licensor shall never
be liable for costs and/or expenses related to the defense of
Licensee, its directors, its employees and its consultants and
contractors against any claims or legal proceedings resulting from
or related to an infringement of third party IP rights except as
stipulated in the next bullet point A.2.
A.2 Licensee shall immediately inform Licensor of any claims of or
legal proceedings instituted by third parties and related to
infringement of their IP Rights. Licensor shall provide an adequate
legal defense against such claims for Licensee, its directors, its
employees and its consultants and contractors at its own cost.
Licensor shall be free to choose the means for said defense
including the choice of legal representation as needed. Licensee
shall fully cooperate with Licensor and its chosen legal
representation in said defense.
A.3 Licensor shall not be liable to Licensee and shall not be under
obligation to provide a legal defense against third party claims for
Licensee including its directors, employees, consultants and
contractors if Licensee does not comply with its obligations under
this Article 6.3.
A.4 The above limitations of liability are not applicable in case the
infringement of third party IP Rights which causes the liability is
the result of intentional acts or gross negligence by Licensor or
its directors.
B. Licensor shall never be liable for infringements of the obligations
under Articles 6.1 and 6.2 if the infringing Software is 10 years old
or older, regardless of whether the infringing Software is or has been
covered by an obligation of the Licensor to provide Maintenance. For
the purpose of this Article 6.3 the age of the Software shall be
determined as the time difference between the moment the last update of
the Software was shipped to Licensee, regardless of whether that update
has been provided as Maintenance or otherwise, and the time at which
the infringement of Articles 6.1 and/or 6.2 leading to the liability
has been discovered by Licensee.
C. Licensor shall, as soon as possible and practicable, modify the
Software to remove all infringement of third party rights and/or
conflicts with applicable Open Source Software licenses, and shall
provide the modified Software to Licensee as quickly as possible and
practicable and free of charge.
D. If the Software cannot be modified to avoid infringement of third party
rights, then Licensor shall recall the Software and reimburse Licensee
as follows:
D.1. Perpetual license:
Licensor shall reimburse the one-time License Fee paid by Licensee.
D.2. Renewable license:
Licensor shall reimburse the License Fee paid by Licensee for the
standard license duration of one (1) year.
E. The liability of Licensor towards Licensee shall at all times be
limited to the obligations and stipulations in this Article 6.3, except
as provided otherwise per applicable mandatory law. Any and all
conflicting provisions in other agreements between Licensor and
Licensee are not applicable.
F. The directors, employees, consultants and contractors of Licensor
shall never be liable personally for any infringements of the
obligations under Articles 6.1 and 6.2, except if provided otherwise
per applicable mandatory law.
7 Protections, Notices, Logos
7.1 Protections
Licensee shall not circumvent, work around, disable or remove any measures
included in the Software to prevent unauthorized use of the Software,
including, but not limited to, protections against copying the Software
and/or protections against other infringements of the IP Rights of Licensor.
7.2 Notices
Licensee shall not alter, remove or obscure any copyright, trade secret,
patent, trademark, proprietary and/or other notices or license files included
with or in the Software. This prohibition also applies to copies of the
Software, regardless of the purpose of said copies.
7.3 Logos
Licensee shall not alter, remove or obscure any logos included with or in the
Software.
8 Obligations of Licensee
8.1 Change of Usage
Licensee shall notify Licensor of all intended changes in the usage of the
Software as defined in Articles 3.4 and 3.5. Licensee shall not proceed with
said change of usage before Licensor has agreed to said change and any
applicable additional License Fees have been paid.
8.2 Usage Estimates and Measurements
Licensee shall provide to Licensor the usage data required to determine the
yearly License Fee for all Software licensed under the "volume-license"
model, either the "Prepaid" or the "Postpaid" option, all as defined in
Article 3.4. Licensee shall provide said usage data in a timely manner, but
in any case four (4) weeks before the start of a new license period in case
of the "Prepaid" model or no later than four (4) weeks after the end of the
previous license period in case of the "Postpaid" model.
8.3 Audit Rights
Licensee shall grant Licensor the right to perform audits, including, but not
limited to, inspections. Such audits and inspections shall be limited to
determining the correctness of the usage estimates and measurements which
Licensee is required to provide to Licensor under Article 8.2. Such audits
and inspections may - at the choice of Licensor - also be performed by an
independent and properly qualified auditor authorized by Licensor. Said
auditor shall be under an obligation of secrecy regarding his or her findings
and regarding any confidential information of Licensee used in the audit or
inspection. Said auditor shall be liable for damages caused by a breach of
this confidentiality obligation. Licensor shall ensure that all obligations
of the auditor shall be governed by a written agreement to which the auditor
is party.
8.4 Third Party Claims
Licensee shall immediately notify Licensor of any and all claims made by, or
legal proceedings started by, third parties with respect to the Software or
the Software Documentation of which it becomes aware. Licensee shall in a
timely fashion provide to Licensor all information needed by Licensor in its
defense against any such claims or legal proceedings.
9 Expiry and Revocation
9.1 Expiry
This License and all the rights granted to Licensee therein shall expire as
follows:
A. Software licensed under the "Node-locked", "Named-user" and/or
"License-pool" license models defined in Article 3.4 can be licensed
for a limited period of one (1) year or perpetually, at the choice of
Licensor.
B. Software licensed under the "Volume-license" license model defined in
Article 3.4 is licensed for a period of one (1) year, renewable under
the terms of that version of this License at the time of renewal that
is most current.
C. Licensee may purchase maintenance and/or support for the Software for a
period to be agreed between Licensor and Licensee, defined in Article 1
as the Maintenance Period. The duration, the start or the end date of
the Maintenance Period shall not have any impact on the expiry period
of this License, and the expiry period of this License shall not have
any impact on the Maintenance Period.
9.2 Revocation
Licensor has the right to revoke some or all of Licensee's rights under this
License in case of a material breach of the conditions in this License by
Licensee. This right of revocation does not prejudice any other rights or
remedies available to Licensor under this License or applicable law.
9.3 No Prejudice
Any decision of Licensor not to use or pursue its rights under this License
and/or under applicable laws and regulations, and any omission of Licensor to
pursue said rights, shall be without prejudice to said rights, and shall not
be interpreted or construed otherwise.
10 Export Control
10.1 Compliance
This License may be subject to export control laws and other import and
export laws and regulations. In the exercise of Licensee's rights under this
License, Licensee shall not violate any such laws and/or regulations.
10.2 Location
Licensee warrants and represents that Licensee is not located in a country
subject to an embargo and that Licensee is not included on any list of
prohibited or restricted parties.
10.3 Breach
Any breach of the obligations of Licensee under Articles 10.1 and/or 10.2
shall be considered a material breach under Article 9.2.
11 License Fees
The applicable License Fees shall be defined in other agreements between
Licensor and Licensee.
12 Warranty and Liability
THE SOFTWARE IS PROVIDED BY LICENSOR "AS IS". EXCEPT AS STIPULATED ELSEWHERE
IN THIS LICENSE, ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE DISCLAIMED. EXCEPT AS STIPULATED ELSEWHERE IN THIS
LICENSE, IN NO EVENT SHALL LICENSOR, THE COPYRIGHT HOLDER OR CONTRIBUTORS BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS
INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN
CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
13 Miscellaneous
Licensor reserves the right to modify this License from time to time. Such
changes shall not apply to Software licensed under an older version of this
License, for the duration of that License. This means that any Software
licensed under a specific version of this License shall always be governed by
the terms of that version of this License until the License expires or is
revoked as per Article 9, or until the Software is updated, in which case the
License version included with the updated Software shall apply.
14 Notifications
All notifications from Licensee to Licensor shall be addressed to:
MonkeyProof Solutions B.V.
c.o. Software License Center
Groot Ypelaardreef 71
4834 HC Breda
The Netherlands
15 Entire Agreement
This License contains the entire set of rights and conditions under which
Licensee may use the Software. Any earlier agreements and licenses, whether
in writing or oral, between Licensor and Licensee shall be null and void.
16 Divisibility
Should any of the clauses in this License be determined to be unlawful or
unenforceable, then this shall not affect any other clauses in this License.
Licensor has the right to replace the defective clause or clauses with a
clause or clauses that are lawful and enforceable and that capture the intent
of the clause or clauses deemed unlawful or unenforceable as closely as
possible.
17 Applicable Law
This License shall be governed by the laws of The Netherlands, excluding its
laws and regulations on conflicts of law, and excluding the Convention on the
International Sale of Goods.
18 Conflict Resolution
All disputes arising out of or in connection with this License shall be
finally settled under the Rules of Arbitration of the International Chamber
of Commerce by one arbitrator appointed in accordance with said Rules.
Parties agree, pursuant to Article 30(2)(b) of the Rules of Arbitration of
the International Chamber of Commerce, that the Expedited Procedure Rules
shall apply irrespective of the amount in dispute. Parties agree that the
place of arbitration shall be the municipality where Licensor has its
registered main business address. The language of the arbitration shall be
English, except if Licensee's main business address is also located in The
Netherlands, in which case the language of the arbitration shall be Dutch.
08/2018