Scailable End-User License Agreement (EULA)

Version 0.0.02, 03-11-2021.

IMPORTANT! BY SIGNING A LICENSE SCHEDULE OR OTHERWISE PURCHASING A LICENSE, REGISTERING FOR AN ACCOUNT OR ACCESS TO OUR PLATFORM, OR BY DOWNLOADING, USING, OR ACCESSING ANY OF OUR SOFTWARE, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT INSTALL, USE, ACCESS OR RETAIN ANY COPIES OF THE SOFTWARE NOR USE OUR PLATFORM AND SERVICES IN ANY WAY, SHAPE, OR FORM.

Software and Licensee

This End-User License Agreement is a legally binding agreement between you and Scailable b.v. (“Scailable” or “we”) for the software product or products (in object code form only) we have agreed in writing to license to you (including pursuant to a license schedule (the “License Schedule” (if applicable) and together with this End-User License Agreement, the “Agreement”)), all patches, revisions, updates, upgrades or replacements of such software products, and, unless subject to a separate license agreement, separate or additional scripts, modules or software to be used with or in conjunction with such software products, all related documentation, sample code and model libraries (in any form) and all copies thereof (collectively, the “Software”).

In this Agreement, “you” means the End User identified in a License Schedule or, if you have not executed a License Schedule, you, a natural person, as identified at the time you registered for a Scailable account or downloaded, installed, or registered a Scailable runtime, unless you are acting for and authorized to act for a legal person and have named such legal person at the time you registered for an account or runtime, in which case the Agreement is with such legal person and references to “you” mean such legal person.

Changes

We may change this agreement from time to time by posting revisions to our website. It is your responsibility to check our website from time to time for any such changes. Any such changes become effective 30 days after being posted on our website. If you do not agree with any such changes, your sole and exclusive remedy is to terminate this Agreement by delivering written notice to us prior to the effective date of such changes. We reserve the right to modify our Software from time to time as we determine in our sole discretion.

License types

  • Base License. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right to use the Software for your internal use only (the “License”).

  • Commercial License. If you have entered into a License Schedule and/or have paid a license or subscription fee to license any Software, the License is subject to: (a) your payment, as and when due, of applicable fees; and (b) the limitations, restrictions and term, as applicable, set forth in the License Schedule (a “Commercial License”).

  • Community License. We may from time to time in our sole discretion make certain Software identified as “community use” Software available for your use at no charge, provided you have registered for an account. If you receive Software that has been identified as “community use” Software, the License is subject to the following additional conditions: (a) you acknowledge and agree that the functionality of the Software may be limited or restricted; (b) you must not use the Software or any data, models or information processed using the Software directly or indirectly for or in connection with: (i) any undertaking that is a business, trade, commercial undertaking or an adventure or concern in the nature of trade; or (ii) the generation of income, compensation or profit or with the purpose, objective or intent of generating or realizing income, compensation or profit, including without limitation the provision of any support, consulting or other services related to the Software or any data, models or information processed using the Software or the sale of any product, device or computing service that uses or is intended to use the Software, any data, models or information processed using the Software or the functionality thereof; and (c) we reserve the right to terminate the License at any time, following which you must cease all usage and destroy all copies of the Software (a “Community License”).

  • Evaluation License. If you receive Software that has been identified as evaluation Software, the License is subject to the following additional conditions: (a) you may use the Software and any output of the Software or any data, models or information processed using the Software, solely for evaluation purposes and may not use it or such output in any other manner or for any other purpose whatsoever, including any production purpose; (b) you may only use the Software for the evaluation period we have advised you of in writing (or if we have not so advised you, for a period of 30 days) (the “Evaluation Period”) following which you must cease all usage and destroy all copies of the evaluation Software; and (c) we reserve the right to limit or disable functions in evaluation Software and disable all functions at the end of the Evaluation Period (an “Evaluation License”).

Protective Measures.

In order to install or use Software, you must register an account on our website. Furthermore, for the AI manager, and our (on device) runtimes you must register for a license Key. You represent and warrant that the information you provide when registering is accurate, complete and up to date. You understand and agree that the Software may contain technological measures designed to: (a) limit functionality of the Software for Community or Evaluation Licenses; (b) disable the Software upon expiration of Evaluation Periods or at the termination of a License; or (c) prevent or detect the illegal usage of the Software or usage of the Software that violates the terms and conditions of this Agreement or the applicable License Schedule. Such measures may include the transmission of information regarding usage of the Software or Key(s) to verify compliance. You agree not to circumvent (or attempt to circumvent) such measures and consent to such transmissions.

Back-Up Copies.

You may make up to two copies (the “Backup Copies”) of the Software solely for archival and backup purposes. Each Backup Copy may only be used as an offline backup and may not be installed or used at hot or warm disaster recovery facilities, including without limitation use on mirrored or clustered servers or similar configurations. You may only install and use a Backup Copy at a separate disaster recovery location only in the event a disaster renders a production instance of the Software unusable. You may only use a Backup Copy for so long as the normal production instance of the Software is not operational and, upon recovery of same, may continue to use a Backup Copy only for the period reasonably required to transition to such production instance, following which the Backup Copy shall be uninstalled and deleted from the system on which it was installed. Use of a Backup Copy may not, in any event, exceed thirty (30) days without our prior written consent.

Restrictions.

You agree not to: (a) copy the Software or any Key(s) except: (i) solely as required to exercise the rights expressly granted to you; or (ii) to make Backup Copies; (b) use the Software or any Key in a manner that breaches or exceeds the quantities, limitations or restrictions set forth in the applicable License Schedule or that are applicable to a Community, or Evaluation License; (c) distribute, disclose, sublicense, sell, resell, assign, give away, loan, lend, rent, transfer, transmit, pledge or create a security interest in the Software or any Key, whether temporarily or permanently; (d) remove, destroy, cover, obfuscate or alter in any manner any notices or legends pertaining to proprietary rights; (e) modify, port, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form the Software, or create derivative works based on, or any competitive or emulating software using, the Software; (f) provide or make available any functionality, use or benefit of the Software as an application service provider, a hosted service, software-as-a-service, a computer or processing service business, a service bureau, an outsourced facility or service, on a timesharing or similar basis or otherwise for or on behalf of any third party, including without limitation using the Software to convert, generate or otherwise process the any work, models, data or other materials of any person other than you; (g) use any Key except for the sole purpose of activating the Software for use in accordance with this Agreement; (h) disclose any Key issued to you to any other person; (i) use the Software or any Key in a manner or for a purpose that infringes upon the lawful rights of others or in contravention of applicable law; (j) disclose to any third party any performance information or analysis relating to the Software; or (k) attempt, or cause, permit or encourage any other person to do any of the foregoing. You understand that the Software is subject to applicable export control laws and regulations and agree that you shall comply with such laws and regulations and shall not export or re-export any Software, directly or indirectly, in contravention of such laws and regulations.

Licensing Metrics.

This Section applies only to Commercial Licenses.

You may only install or operate the Software (our platform, tools, or on-device software, consisting of, amongst others but not limited to the “AI Manager” and the “Scailable runtime”) only on the devices and locations, and for the duration designated in the applicable License Schedule. Any on-device provided by Scailable software will be identified by a unique license Key (which is potentially generated automatically upon installation of the software). The Key is one-to-one tied with a single device and is not transferable between devices or between users.

Your Responsibilities.

You are responsible for procuring at your expense all third-party equipment, products, software and services (“Third Party Products”) meeting or exceeding the minimum requirements for the Software as identified in our documentation. If we provide or make available any Third-Party Products to you, we do so on an “as-is” basis and subject to any additional terms and conditions accompanying such Third-Party products. You agree that failure to use or procure Third Party Products that meet such requirements may result in the inability to use the Software, failures or errors. You agree to provide us information and access to your relevant systems in a timely and reasonable manner as we may reasonably require to perform our obligations. We or our agent may inspect you, your systems and records to verify your compliance with the Agreement. You agree to provide reasonably and timely assistance, cooperation and information in connection with any such inspection.

Fees.

This Section applies only to Commercial Licenses.

You will pay the fees as set out in the License Schedule. All overdue amounts will bear interest at the rate of 1.5% per month (19.56% per year). We reserve the right to increase fees applicable to each renewal term upon prior written notice. All fees are exclusive of all applicable goods and services taxes, harmonized sales taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes.

Support and Maintenance.

This Section applies only to Commercial Licenses.

We will provide you support and maintenance in respect of your permitted use of the Software as specified in the applicable License Schedule.

Ownership.

The Software is protected by copyright and other intellectual property rights and is licensed, not sold. By acquiring the right to use the Software or a Key you do not become the owner of the Software or such Key. Except for the rights expressly granted to you under this Agreement and the applicable License Schedule, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Software, each Key and all copies thereof (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by us or our licensors. All trade names, company names, trademarks, service marks and other product and service names and logos in the Software are the proprietary marks of us or our licensors, and are protected by law and may not be copied, imitated or used, in whole or in part, without the consent of their respective owners. This Agreement does not grant you any rights in respect of any such marks. You acknowledge that the Software and each Key constitute our confidential information and that any unauthorized publication or disclosure thereof may cause immediate and irreparable harm to us. Consequently, you agree to take all reasonable steps to maintain the confidentiality of the Software and each Key and shall not, without our prior written consent, disclose, or make it in any form to any other person. Our Software may include, or we may deliver our Software together with, open source software (collectively, “OSS”) as identified on our website, in our documentation or as provided to you with the Software. Notwithstanding anything to the contrary herein, your use of any OSS is governed exclusively by the licensing terms applicable to such OSS and not this Agreement. We have no obligation or liability in respect of any OSS, all of which is provided on an “as-is” basis. You agree that any feedback, input, suggestions, recommendations, improvements, changes, specifications, test results, or other data or information that we collect or that are provided or made available to us arising from or related to the Software or the use, testing or evaluation thereof, including optimization metadata automatically transmitted to us by the Software (which transmissions you hereby consent to and agree not to block, restrict or circumvent), or in the course of utilizing support or other services, shall become our exclusive property and may be used to modify, enhance, maintain, improve and create the Software or other products or services, without any obligation or payment to you whatsoever. The foregoing does not apply to any of models, data or information that you process using the Software, provided however that you grant us the right to use such models, data or information as reasonably required for the purposes for which you have provided it to us, including for the provision to you of support, maintenance or other services.

Warranty Disclaimer.

If Software licensed under a Commercial License does not function substantially in accordance with the documentation during the term, we will, upon receipt of written notice from you of such failure providing reasonable details thereof and verification of reproducibility, use commercially reasonable efforts to diagnose, correct or provide a reasonable workaround for same in accordance with our support policies. The foregoing constitutes your sole and exclusive remedy and our sole obligation for any such failure. We have no obligation or liability whatsoever if Software has been modified by anyone other than us, or to the extent any failure arises or results from improper or unauthorized use, your breach of this Agreement, your negligence or wilful misconduct, failures in hardware or equipment not owned or controlled by us, or failures, errors, or misconfigurations of third party products or services.

Failures in Third Party Products are addressed exclusively by the terms and conditions applicable to same and not this Agreement and we have no obligation or liability in respect of same.

EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED “AS IS” AND WE DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. WE DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT IT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION. WE DO NOT WARRANT THAT THE SOFTWARE WILL BE CAPABLE OF ACHIEVING ANY PARTICULAR RESULT IN YOUR OPERATIONS.

Limitation of Liability.

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM LIABILITY WILL BE LIMITED TO YOUR DIRECT DAMAGES, NOT TO EXCEED: (A) IF IN RESPECT OF SPECIFIC SOFTWARE, THE LICENSE FEES YOU HAVE PAID TO US IN RESPECT OF SUCH SOFTWARE IN THE LAST TWELVE MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION; (B) IN AGGREGATE IN RESPECT OF ALL CLAIMS, THE ALL LICENSE FEES YOU HAVE PAID TO US IN THE LAST TWELVE MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OR OTHER PECUNIARY LOSS, EVEN IF WE FORESEE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Applicability.

THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WILL SURVIVE A FUNDAMENTAL BREACH OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY REMEDY, INCLUDING ANY EXCLUSIVE REMEDY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITY BEYOND AND NOTWITHSTANDING SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.

Term and Termination.

The initial term of each Commercial License commences on the date of the applicable License Schedule and continues for the initial term specified in such License Schedule. At the end of the initial term or any renewal term, the Commercial License will automatically renew for an additional renewal term as specified in the License Schedule, unless either party notifies the other party in writing at least 60 days prior to the expiration of the then-current initial term or renewal term of such party’s desire not to renew. We reserve the right to terminate this Agreement and all Licenses without notice if you breach or otherwise fail to comply with any provision of this Agreement. Upon termination of this Agreement: (a) any and all rights granted to you under this Agreement, including all Licenses, shall immediately cease; (b) you shall destroy all Software and Keys in your possession or control; and (c) you shall deliver to us a written certificate confirming such destruction.

##Assignment. You must not transfer or assign this Agreement, the Software, any Key or any rights granted to you hereunder in whole or in part, whether voluntarily, by operation of law or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void.

Publicity.

You agree that we may identify you as a user of the Software on our website, in publications and in discussions with customers or prospective customers. For Commercial Licenses, you further agree to cooperate with us to: (a) issue a press release with us regarding your use of our Software within 30 days after you first license the Software; (b) develop and issue one (or more, if mutually agreed) case studies regarding your use of the Software within 12 months after you first license the Software; and, (c) develop other promotional materials as mutually agreed. Any content that identifies you will be subject to your review and approval, not to be unreasonably withheld or delayed.

Dispute Resolution.

In the event of any claim, dispute or disagreement (a “Dispute”), upon the written request of either party, the parties will meet for the purpose of resolving such dispute. The parties agree to discuss the problem and negotiate in good faith without the necessity of any formal proceedings related thereto. No formal proceedings for the resolution of such dispute may be commenced until either party concludes in good faith that resolution through continued negotiation of the matter in issue does not appear likely.

The parties further agree that all Disputes which cannot be settled in through such discussions will be settled by final and binding arbitration by a notary or legal professional (“jurist”) under Dutch law.

Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. The venue for the arbitration shall be at the City of Eindhoven, the Netherlands, and shall be conducted in English or Dutch only.

The arbitration panel will consist of a sole arbitrator. In the event the parties are unable to agree upon an arbitrator, either party may apply to a court of competent jurisdiction for the appointment thereof. No person may be appointed as an arbitrator unless he or she is independent of both parties, is skilled in the subject matter of the Dispute and is not directly or indirectly carrying on or involved in a business being carried on in competition with the businesses of either party. The arbitrator will not limit, expand or modify the terms of this Agreement nor award damages in excess of damages that could lawfully be awarded by a court of competent jurisdiction and subject always to limitations and exclusions in this Agreement and will issue a written decision containing findings and conclusions on all significant issues. Each party will each bear its own expenses and an equal share of all costs and fees of the arbitration. All participants, each of whom will be bound by an appropriate confidentiality agreement, will hold the content and result of any arbitration in confidence.

You agree to waive any right you may have to commence or participate in any class action against us and further agree to opt out of any class proceedings against us. We reserve the right not to arbitrate Disputes arising from or related to the infringement of our intellectual property rights or where we seek injunctive or equitable relief.

Governing Law.

This Agreement will be deemed to have been made and performed exclusively the city of Eindhoven, the Netherlands, and will be governed by and construed under Dutch law without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

You hereby irrevocably attorn to the exclusive jurisdiction of Dutch law and the Dutch courts for any claim arising from or in connection with this Agreement that is not subject to arbitration and agree not to bring any action or proceeding against us in any jurisdiction other than the Netherlands.

Language.

At the request of the parties, the official language of this Agreement and all communications and documents relating hereto is English or Dutch.

Entire Agreement.

This Agreement constitutes the entire agreement between you and us with respect to its subject matter and cancels and supersedes any prior understandings and agreements. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between you and us other than as expressly set forth in this Agreement. You represent and warrant that you have not been induced to enter into this Agreement by any other statement, representation or warranty not contained in this Agreement. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

Severability.

To the extent that any provision of this Agreement is declared by a court or other lawful authority of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and you and we will substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreement shall continue in full force and effect with respect to all other provisions.

Force Majeure.

We will be not be liable or responsible for any failure or delay in performing our obligations if caused by or results from causes beyond our reasonable control, including fires, floods, embargoes, shortages, epidemics, quarantines, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labour disturbances, acts of God or acts, omissions or delays in acting by any governmental authority.

Amendments and Waivers.

No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure of we in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.

Notices.

Any demand, notice or other communication to be given to us shall be delivered by mail to: Scailable b.v., Stoutheuvel 1, 5632 MN Eindhoven, The Netherlands.

Any demand, notice or other communication to be given to you shall be delivered to the address or number specified in the License Schedule, or that you provided during registration, or such other address or number as you have advised us of from time to time.

Lodewijk EversEULA