UMAX End User Agreement
This Umax End User Agreement (the “Agreement”) is entered into between anyone who purchases, downloads, installs or uses UMAX and who is accepted and approved by Itineris as an End User (the “End User”) and Itineris NV, with registered office at Xavier de Cocklaan 24, 9831 Deurle, Belgium and registered with the Crossroads Databank for Enterprises with number 0474.964.260 ( “Itineris”), provider of UMAX . End User and Itineris shall individually be referred to as a “Party” and jointly as the “Parties”.
By purchasing, downloading, installing and or using UMAX , the End User unconditionally acknowledges and agrees to be bound by the terms of this Agreement. End User affirms and agrees to use UMAX solely for its internal business purposes within the test environment and subject to the terms and conditions in this Agreement.
1. UMAX is built on the Dynamics 365 for Finance and Operations platform and serves the needs of the Utilities industry, specifically related to Customer Information Systems (CIS). If the additional terms and conditions conflict in any way with the terms and conditions stated in this Agreement, the additional terms and conditions will prevail.
2. User rights and restrictions
The End User acknowledges and agrees that by purchasing, downloading, installing and/or using UMAX , the End User applies and subscribes to be accepted as an End User by Itineris. The End User shall only be granted access to UMAX upon acceptance as an End User by Itineris at Itineris’ sole discretion. The End User acknowledges and agrees that Itineris may at its option, and shall in any event after the third renewal of this Agreement, refuse to accept the End User.
2.2. License grant
Subject to the terms and conditions of this Agreement and Itineris’ explicit approval of the End User’s subscription, Itineris hereby grants the End User a non-transferable, non-assignable, non-exclusive, non-sublicensable restricted right to use and integrate UMAX solely within the test environment for the term of this Agreement.
The End User expressly acknowledges and agrees to use UMAX solely for its internal business purposes within the test environment and confirms that such usage shall not be extended to further usage or deployment unless otherwise agreed in writing. The End User may not (i) modify UMAX except to the extent necessary for its internal business purposes (ii) work around any technical limitations in UMAX ; (iii) reverse engineer, translate, decompile, disassemble UMAX or otherwise attempt to discover, copy, create derivative works based upon the source code of UMAX ; (iv) make more copies of UMAX than specified in this Agreement; (v) take any action that would cause UMAX in the public domain; (vi) distribute, rent, lease or sell UMAX, (vii) encumber or suffer to exist any lien or security interest on UMAX, (viii) disclose results of any program benchmark tests without Itineris’ prior written consent; or (ix) remove, alter or obscure any proprietary notices (including copyright notices) of Itineris’ or its suppliers in UMAX.
Except if and to the extent permitted under applicable law, the End User shall not be entitled to make backup copies of UMAX.
2.5. Assignment or transfer
The End User may not assign or otherwise transfer any user rights to any third party (including its affiliates) without Itineris’ prior written consent. In the event the End Users attempts to assign or otherwise transfer or assigns or otherwise transfers any of its user rights without Itineris’ prior written consent, the assignment or any other transfer will be ineffective, null and void. Notwithstanding the foregoing, Itineris shall consider such assignment or any other transfer as a material breach not capable for remedy.
3. Fees and Payment
3.1. The End User’s right to use UMAX shall be free of charge for the term of this Agreement, which term shall in no event exceed one (1) year. However, such free of charge license shall not relieve the End User from any of its indemnification obligations towards Itineris for any damages suffered under this Agreement.
3.2. The End User acknowledges and agrees that it must buy UMAX if the End User wants to use UMAX (i) outside the test environment, (ii) in the event Itineris refuses to grant a demo license to End User, or (iii) in the event the maximum term of this Agreement has been reached. The End User shall be able to buy UMAX on the same platform as where it subscribed for the demo license.
4. Intellectual property rights
The End user acknowledges and agrees that any right, title and interest, including intellectual property rights, in UMAX or any other services or materials or information under this Agreement (including any improvements or derivative works thereto) shall at all times remain the exclusive property of Itineris and/or its licensors and the End User shall obtain no right, title and interest, including intellectual property rights, from Itineris under this Agreement, except for the restricted user rights expressly granted to the End User under this Agreement.
5.1. Each Party agrees that all business, technical, financial and other information it obtains from the other Party is the confidential property of the disclosing Party (“Confidential Information”). Except as expressly allowed herein, the receiving Party will hold in confidence and shall not use or disclose any Confidential Information of the other Party and shall engage its employees and contractors in writing to be bound by similar confidentiality provisions.
5.2. The confidentiality does not apply to: (i) information which can be proven to be in the public domain through no fault or no involvement of the receiving Party; (ii) information received from third parties, whose knowledge is not the result of a breach of confidentiality obligations; (iii) information already in the receiving Party’s possession at the time of its disclosure by the disclosing Party; (iv) information disclosed pursuant to the order or requirement of a court, administrative agency, regulatory body or other governmental body and in accordance with the applicable statutory provisions.
5.3. Upon termination of this Agreement, either Party shall destroy or return, at the other party’s option, all Confidential Information of the other Party, including any copies thereof.
6. Data Protection
The End User expressly acknowledges and agrees not to be entitled to use actual personal data when using UMAX in accordance with this Agreement. Therefore, the General Data Protection Regulation 679/2016 shall be expressly excluded from the scope of this Agreement. Itineris shall have no liability in respect of such personal data that are used in breach of the aforementioned prohibition and the End User shall hold Itineris harmless for any damages caused as a result of such breach by the End User.
7. Term and termination
7.1. This Agreement shall be effective upon subscription by the End User by purchasing, downloading, installing or using UMAX for a fixed term of 3 months and shall be renewed for an equal term upon mutual agreement between Parties no later than thirty (30) days prior to the expiry of the then current term, provided that the total term of this Agreement shall in no event exceed one (1) year.
7.2. Itineris may at its option terminate this Agreement immediately upon written notice to the End User if the End User (i) breaches the confidentiality or intellectual property provisions under this Agreement, (ii) breaches its obligations under this Agreement and such breach is not capable for remedy or the End User fails to remedy such breach within thirty (30) days after written notice; (iii) ceases conducting business in the normal course, admits insolvency, makes an assignment for the benefit of creditors or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization;
7.3. Upon termination of this Agreement, the End User shall (i) promptly pay any outstanding amount due and owing to Itineris, (ii) no longer have the right to use UMAX pursuant to this Agreement, and (iii) destroy, remove or return to Itineris any copy of UMAX within its possession or control and any Confidential Information of Itineris.
7.4. The articles of this Agreement that are either expressly or implicitly (given their nature) intended to have effect after termination of the Agreement, shall survive the termination of this Agreement, including without limitation, articles 4, 5, 6, 8, 9 and 10.
8. No warranty
To the maximum extent permitted by applicable law, UMAX is provided on an “as is” basis and itineris disclaims and excludes all representations, warranties and conditions whether express, implied or statutory, including but not limited to representations, warranties or conditions of title, non-infringement, satisfactory condition or quality, merchantability and fitness for a particular purpose with respect to UMAX or any other services or materials or information provided by Itineris.
9. Limitation of liability – force majeure
9.1 To the maximum extent permitted by applicable law, Itineris shall only be liable for direct damages arising out of or in connection to this Agreement or related to UMAX or any services or materials or information provided by Itineris. Itineris’ liability for direct damages shall not exceed, (i) per occurrence, the amounts paid by the End User to Itineris during the previous month and (ii) in the aggregate, all amounts paid by the End User to Itineris under this Agreement.
9.2. To the maximum extent permitted by applicable law, Itineris shall in no event be liable to the other party for any indirect, consequential, special, or incidental damages, loss of profits or loss of business for any matter related to this Agreement, UMAX or any services or materials or information provided by Itineris, even if advised of the possibility of such damages or if such possibility was reasonable foreseeable.
9.3. Neither Party shall be liable for any delay or failure to perform any of its obligations under this Agreement (excluding monetary obligations) due to force majeure or any other cause beyond its reasonable control.
10.1. This Agreement constitutes the entire agreement and understanding between Parties and supersedes and replaces all prior agreements and understandings, whether written or oral, with respect to the same subject matter between Parties.
10.2. The End User expressly accepts that Itineris is entitled to amend the terms and conditions of this Agreement from time to time. If Itineris makes material changes to the terms and conditions of this Agreement, Itineris shall notify the End User of such changes. End User’s continued use of UMAX following the effective date of a change shall constitute End User’s acceptance of such change.
10.3. The End User may not assign or otherwise transfer this Agreement without Itineris’ prior written consent. In the event the End User attempts to assign or otherwise transfer or assigns or otherwise transfers any of its obligations under this Agreement without Itineris’ prior written consent, the assignment or any other transfer will be ineffective, null and void. Notwithstanding the foregoing, Itineris shall consider such assignment or any other transfer as a material breach not capable for remedy.
10.4. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such invalid or unenforceable provision shall be replaced with a provision consistent with the purpose and the intention of this Agreement.
10.5. Failure or delay by Itineris to enforce its rights or remedies under this Agreement shall not be deemed a waiver and shall not affect the validity of this Agreement or prejudice Itineris’ right to take subsequent actions, unless such waiver is expressly given in writing and signed by the authorized representative of Itineris.
10.6. This Agreement shall be governed by the laws of Belgium. Any dispute arising out or related to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ghent, department Ghent, Belgium.