PART (A) SOFTWARE
USER NOTICE: BY INSTALLING THIS SOFTWARE, YOU AS LICENSEE ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS EULA AND AGREE TO THE CONDITIONS AND PROVISIONS HEREIN AND THAT YOU ARE DULY AUTHORIZED TO AGREE TO THIS EULA. YOU AGREE TO INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS EULA. YOU AGREE THAT THIS EULA IS THE FULL AND EXCLUSIVE EXPRESSION OF THE AGREEMENT BETWEEN YOU AND RES AND THAT IT TAKES PRECEDENCE OVER ALL PREVIOUS PROPOSALS OR VERBAL OR WRITTEN AGREEMENTS AND OTHER COMMUNICATIONS REGARDING THE SUBJECT OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THIS SOFTWARE.
LICENSOR. This license is granted to you as licensee (End-User) by RES Software B.V., a company organized under the laws of the Netherlands. If End-User is located in the United States or Canada, this license is granted to End-User by Real Enterprise Synergy, Inc., a company organized under the laws of Delaware. In this EULA, the term “RES” refers to RES Software B.V. or Real Enterprise Synergy, Inc.
LICENSE. The software provided herewith, including the end user manuals and documentation (the "Software") and, as long as End-User has a right to Solution Assurance, any Product Releases or Service Releases related thereto, are licensed to End-User by RES and is provided for use solely under the terms of this EULA. RES reserves all rights not expressly granted under this EULA.
RES hereby grants to End-User a perpetual (except as otherwise provided herein) non-exclusive, non-transferable license, to install, use, perform and display the rightfully obtained version of the Software, solely in object code format for End-User’s own internal business use and without the right to sub license. The Software may only be used for the purpose for which it is designed as described in the documentation and on the RES Success Center. The documentation is licensed solely for the purposes of supporting End-User’s use of the Software as permitted in this section.
End-User may, subject to RES’ prior written approval, permit its affiliates to use the Software, subject to the terms, conditions and restrictions in this EULA. End-User shall be responsible and liable for the acts and omissions of its affiliates. End-User ensures that none of its affiliates shall take any legal action against RES Software under this EULA. In this EULA, the term “affiliate” means any entity directly or indirectly controlling, controlled by or under common control with End-User. “Control” means the ownership, direct or indirect, of a majority (50 per cent or more) of an entity’s stock entitled to vote for the election of directors.
The Software may only be used on the site and within the infrastructure environment in which it was first installed. Depending on the edition for which End-User obtained a license, End-User is allowed to use all or limited functionality of the Software. The number of licenses required by End-User depends on one of the following: the number and type of devices to be used, the number of concurrent users, the number of named users, or the specific allocated tasks to be performed by the Software, as further specified on the RES website and pricelist, the purchase order or an amendment to this EULA. The use of the Software is limited to the number of licenses for which End-User paid or otherwise rightfully acquired. If End-User obtains subscription licenses, the term of use is not perpetual, but limited to the specific subscription period agreed to. The use of applications available to access the Software is at End-User’s sole risk. End-User agrees that none of its employees or other persons using the Software shall make any claim or take any legal action against RES in respect of the use of such applications. RES does not warrant any interoperability between the applications, the Software and any third party software.
RESTRICTIONS. End-User is not permitted to: (i) reverse engineer, disassemble or decompile the Software or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein, except to the extent and for the express purposes authorized by applicable law, and only if RES is not willing or able to provide the required information or assistance (provided Solution Assurance is current) to End-User; (ii) remove or evade any technical protection; (iii) use plug-ins or extensions not distributed by RES which enable modification of the Software; (iv) modify, change or make new installation programs for the Software; (v) use the Software for on behalf of third parties or sub-license, rent, sell, lease, distribute or otherwise transfer the Software; (vi) use the Software in or in association with safety critical applications such as, without limitation, medical systems, transport management systems, vehicle and power generation applications, including but not limited to power applications; and (vii) use the Software in a way prohibited by applicable law, regulation, governmental order or decree.
EVALUATION SOFTWARE AND EXPRESS EDITION. If available, End-User may download certain evaluation editions ("Evaluation Software") and/or express editions ("Express Edition") of the Software from www.ressoftware.com free of charge. End-User has the right to use the Evaluation Software for evaluation purposes only. The Evaluation Software license is for evaluation and internal use only and not in a production environment or otherwise and expires 45 days after the download of such Software. The Express Edition provides limited functionality of the RES product.
AUDIT. On RES’ request, and at RES’ expense, RES may conduct an audit of End-User’s use of the Software. Any such audit shall be conducted during regular business hours at End-User’s facilities, by remote session or otherwise and shall not unreasonably interfere with End-User’s business activities. If an audit reveals that End-User has underpaid in relation to its actual use of the Software, in addition to other remedies, End-User shall be invoiced for such underpaid fees. If the underpaid fees exceed five percent (5%) of the license fees paid, then End-User shall also pay RES’ reasonable costs for conducting the audit.
PART (B) SOLUTION ASSURANCE
SOLUTION ASSURANCE. With the exception of Evaluation Software and Express Edition, End-User agrees to buy a subscription to maintenance and support ("Solution Assurance") for a period of a minimum of one (1) year starting on the date End-User receives the license key. End-User’s subscription to Solution Assurance will automatically renew for additional one (1) year periods, unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then current subscription term. The fees due for Solution Assurance shall amount to a maximum of 20%, for Premium Solution Assurance 25%, of the then-current list-price of the Software. RES will not refund any payments made by End-User. RES reserves the right to adjust its price for Solution Assurance. If End-User does not accept an adjustment of the price, End-User will be entitled to terminate its subscription to Solution Assurance services within thirty (30) days of receipt of the written notification of the price increase. End-User shall pay invoices for Solution Assurance within the payment term stated on the invoice. If no payment term is specified, a payment term of thirty (30) days applies. In order to benefit from Solution Assurance, End-User must have a valid license for the latest version of the Software. If End-User has elected to terminate its subscription to Solution Assurance and, at a later date, wishes to reinstate Solution Assurance, RES may charge a reinstatement fee.
CONTENT OF SOLUTION ASSURANCE. Solution Assurance consists of: (1) the right to download and use Service Releases to the Software. A minimum of two (2) Service Releases will be provided per year. A Service Release consists of a number of bundled fixes to defects and does not necessarily offer new functionality. For the purpose of this EULA, a “defect” means a reproducible instance of adverse and incorrect operation of the Software that impacts End-User’s ability to use functionality in the manner described in the Software documentation. Minor discrepancies that do not impair the normal use of the Software shall not constitute a defect under this EULA; (2) the right to download and use Product Releases to the Software. At least one Product Release will be provided every three (3) years. A Product Release contains new functionality and features; (3) access to RES Support by Internet, e-mail and phone (during specified office hours). RES Support will assist in locating and solving configuration problems and defects in the Software; (4) access to the RES Success Center, including the RES Knowledge Base. Further details on Solution Assurance are described in the Solution Assurance Program available through the RES Success Center.
Premium Solution Assurance also provides: (1) Extended access to RES Support by Internet, e-mail and phone (24 x 7 x 365); (2) the right to use Source Code Escrow services under RES’ conditions; (3) free Services Releases and Product Releases, if and when available. Further details on Premium Solution Assurance are described in the Solution Assurance Program available through the RES Success Center.
EXECUTION OF SOLUTION ASSURANCE SERVICES. RES provides Solution Assurance on a commercially reasonable efforts basis in the manner it considers appropriate. RES is not obliged to follow the directions of the End-User. End-User shall first analyze any problems with the Software internally and consult the RES Knowledge Base before contacting RES Support. Without prejudice to End-User's right to provide evidence to the contrary, RES internal system shall count as conclusive evidence if and when End-User has accessed support (by internet, e-mail or phone). End-Users will appoint a qualified support contact person RES who will provide all relevant information and materials RES when contacting RES Support. RES may examine and test materials delivered by End-User. RES is not obligated to use those materials. End-User guarantees that RES is entitled to use the materials and, after approval by End-User, is allowed access to its systems, to provide Solution Assurance. End-User agrees that any maintenance and support provided by third parties, including authorized partners of RES, is not part of Solution Assurance. End-User is responsible for promptly and fully informing RES about any Software advice, support and maintenance provided by third parties, which affect or could affect RES’ in providing Solution Assurance.
RES will provide Solution Assurance on the current Product until a new Product Release is made available. Once the new Release becomes available, Solution Assurance on the previous Product Release will be limited to making available existing and new fixes on request by End-User for one (1) year thereafter. Further, for all older versions, access to RES support and the RES Success Center and knowledge base (which contains previously developed solutions) will remain available. RES cannot provide optimal Solution Assurance to End-User if End-User does not use the latest Product Release or Service Release. RES may terminate End-User’s subscription to Solution Assurance with prior notice and/or amend the financial or other conditions of this EULA in case of excessive use of Solution Assurance services by End-User, or if End-User does not install the latest Product Release or Service Release. The use of Solution Assurance shall be considered excessive if End-User is regularly contacting RES by Internet, e-mail or phone for problems which can easily be solved by consulting the RES Knowledge Base.
EXCLUSIONS. Solution Assurance services do not include resolution of defects which result from (i) third party software or hardware, (ii) any modifications to the Software by a party other than RES, or (iii) use of the Software by End-User which is not in accordance with the documentation. As of the date of the support request, RES will only support the Software on platforms for which all components are supported by their respective vendors, under standard conditions. Solution Assurance does not cover code supplied by RES as part of either a consulting engagement or as a demo, sample or contribution.
USE OF RES MATERIALS. All materials, including, but not limited to the RES Success Center and knowledge base, demonstrations, samples or contributions provided by RES (the "Materials") are either owned by or licensed to RES. End-User may only use those Materials as part of Solution Assurance and as long as it is entitled to Solution Assurance. In no event shall End-User publish, retransmit, redistribute or otherwise reproduce any Materials in any format to anyone or use any Materials in any connection with any business or commercial enterprise, without the express written consent of RES. End-User will destroy all Materials not needed for the solution of a defect once the technical problem is solved.
PART (C) PROFESSIONAL SERVICES
PROFESSIONAL SERVICES.Any services provided by RES, including consultancy, software development, education or the delivery of Deliverables, but excluding the licensing of Software, updates and new versions pursuant to a valid Solution Assurance (hereinafter: “Services”), need to be agreed upon between the parties in a separate Statement of Work (SoW). The terms and conditions set forth in this EULA shall govern the agreed SoW(s). SoWs form an integral part of this EULA. “Deliverables” in this EULA mean any materials, analyses, designs, reports, scripts, created by RES for use under or in the performance of a SoW, excluding Software or updates and new versions pursuant to a valid Solution Assurance.
EXECUTION OF PROFESSIONAL SERVICES.RES shall perform the Services with due care and in a professional manner, and, where appropriate, in accordance with generally accepted industry standards and in accordance with the procedures recorded in writing with End-User if specified in the SoW. All Services shall be performed on the basis of a reasonable commercial efforts obligation, unless and insofar as RES has expressly agreed a result in the applicable SoW and the result concerned has also been described with sufficient definiteness. Any agreement concerning a service level shall be expressly agreed in a SoW. If it is agreed that the Services shall be provided in stages, RES shall be entitled to postpone the start of the Services which are part of a stage until End-User has approved the results of the preceding stage in writing. If a SoW has been entered into with a view to performance by a particular person, RES shall be entitled to replace this person, after consultation with End-User, with one or more other persons with equivalent qualifications. RES will retain the sole and exclusive right to control or direct the manner or means by which the Services are performed. If a SoW includes planning, timesheets, or other specific requirements to perform Services, RES will use reasonable commercial efforts to honor these requests and to perform in accordance with the specifications in the SoW. RES reserves the right to determine the assignment of employees and representatives and change planning. The mere fact that a stated or agreed delivery or other period has been exceeded shall not cause RES to be in default. In all cases, even if the parties have expressly agreed on a firm date in writing, RES shall not be in default because of a time period being exceeded until End-User has provided RES with a written notice of default, giving RES a reasonable time to cure the default. RES shall not be bound by firm or non-firm delivery or other periods which can no longer be met on account of circumstances beyond RES’ control which has occurred after the SoW was executed. Nor shall RES be bound by firm or non-firm delivery periods if the parties have agreed to modify the substance or scope of a SoW (additional work, change in specifications, etc.). If any period threatens to be exceeded, RES and End-User shall consult with each other as soon as possible. The fact that additional work (or the demand for it) arises during the performance of a SoW shall never be a ground for End-User to rescind or terminate this EULA and/or the applicable SoW. RES may subcontract or assign any or all of its obligations and rights under any SoW, subject to End-User’s consent, which consent shall not be unreasonably withheld or delayed.
PREREQUISITES EXECUTION OF PROFESSONAL SERVICES.End-User agrees to make available in a timely manner at no charge to RES all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by RES or as otherwise explicitly indicated in the SoW, for the performance of the Services. End-User will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness and consistency of all such data, materials and information supplied by End-User. If the Services will be provided at End-User’s premises, End-User agrees to provide to RES, at no charge, office space, presentation rooms and facilities, services and equipment (such as copiers, fax machines, beamers and internet connections) which RES reasonably requires to perform the Services. End-User warrants that there are no third party rights which are inconsistent with providing RES with equipment, software or materials intended to be used by RES in the performance of the Services. End-User shall indemnify and defend RES against any action based on the claim that such use infringes a third party right. The working space and facilities will comply with all applicable statutory and other requirements and provisions concerning working conditions. End-User will indemnify RES against claims by third parties including RES’ employees and representatives who in executing a SoW suffer injury which is the result of acts or omissions by End-User or of unsafe situations in the organization of End-User. End-User will provide timely written notice to RES’ employees and representatives about the company rules and security rules applicable within the organization of End-User. End-user’s employees cooperating in the performance of a SoW will possess the necessary know-how, experience, abilities and characteristics.
PROFESSIONAL SERVICES MISCELLANEOUS.Tasks that are the primary responsibility of End-User’s personnel will remain End-User’s responsibility and will remain under End-User’s supervision, management and control, even if RES assists End-User in performing such tasks. RES will not be responsible for any migration, re-installation, update or re-implementation Services in connection with releases or new version of software or Products, unless End-User separately contracts for such Services in an approved SoW. RES hereby grants to End-User a perpetual, non-exclusive, non-sub licensable, non-transferable right to use the Deliverables, subject to the limitations in the SoW, provided all fees have been paid by End-User. End-User warrants and agrees that Deliverables will be used only for its internal business. If and insofar as RES provides software, hardware and/or services from third parties to End-User, those third parties' terms and conditions shall replace the provisions in this EULA and shall apply with regard to that software, hardware and/or services, provided that RES notifies End-User in writing. End-User shall accept the aforementioned third party terms and conditions. If and insofar as the aforementioned third party terms and conditions are deemed or declared inapplicable to the relationship between End-User and RES for whatever reason, the provisions in this EULA and the SoW shall fully apply.
FEES AND PAYMENT FOR PROFESSIONAL SERVICES.The fee for the Services performed will be calculated on a time and materials basis at the standard Services rates of RES in effect at the time the Services are rendered unless the rates have been explicitly otherwise agreed in the SoW. Only if explicitly agreed in the SoW, the Services performed will be charged on a fixed price basis. At End-User’s request, RES may provide an estimate of charges for the Services, but any such estimate shall not be binding on RES or convert the terms into a fixed price contract with respect to such Services. RES will invoice End-User for the agreed fees, costs (e.g. travel and related costs) and expenses at the end of each calendar month for the work performed in the past month. Invoices shall be due and payable in full within fifteen (15) calendar days from date of invoice. All amounts required to be paid by End-User under any SoW shall be paid in Euros or in the U.S., Dollars, unless explicitly otherwise agreed to in the SoW. Any amount not paid within fifteen (15) calendar days from date of invoice will be subject to payment of statutory trade interest or in the U.S., at the highest interest rate permitted by applicable law. End-User shall further be responsible for all costs incurred by RES in connection with any efforts to recover payments due from End-User, including without limitation, professional fees and legal costs. End-User also agrees to pay all VAT, sales, local use or other taxes applicable to the Services supplied under a SoW, or any fees or duties arising out of the billings for the Services (other than taxes on the net income of RES) as well as applicable banking transfer costs. RES is entitled to invoice the VAT or other tax on any invoice unless otherwise explicitly agreed in writing. If, at the request of or with prior written consent of End-User, RES has performed work or rendered other performances which go beyond the substance or scope of the agreed Services, End-User shall pay for that work or performance according to the then standard Services rates of RES on a time and material basis. End-User is not entitled to withhold any payments. RES shall have fulfilled its obligations to provide the Services when RES accomplishes the RES’ activities described within the SOW, including delivery to End-User of the Deliverables and End-User accepts such activities and materials without unreasonable objections. No response from End-User within five (5) business days of completion date of delivery by RES is deemed an acceptance. RES will not refund any payments made by End-User.
WARRANTY PROFESSIONAL SERVICES.RES makes no warranties whether express, implied, out of custom, oral, written or statutory, regarding or relating to the Services provided to End-User to the maximum extent permissible by law. RES SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER. SERVICES OR DELIVERABLES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE OR THAT THE PRODUCTS, SERVICES OR DELIVERABLES SHALL MEET END-USER’S REQUIREMENTS. The performance of the Software, Services or Deliverables may vary with various manufacturers’ equipment with which they are used and End-User understands, represents and warrants that RES is not responsible for and shall have no liability for hardware, software or other items or any services provided by any persons other than RES. End-User accepts that work or performances which go beyond the substance or scope of the agreed Services, may affect the agreed or expected time of completion of the Services and the mutual responsibilities of End-User and RES. If a fixed price has been agreed, RES shall, upon request, inform End-User in writing in advance about the financial consequences of the additional work or performance.
PART (D) GENERAL APPLICABLE TERMS & CONDITIONS
(APPLICABLE TO PARTS A-C)
TERM AND TERMINATION. This EULA takes effect when End-User signs the Quote Form, installs or uses the Software or at the date End-User receives the relevant license keys, whichever is earliest (the “Effective Date"). RES reserves the right to terminate this EULA upon 30 days’ notice in the event of: (1) a change of control of End-User; (2) if End-User breaches any provision of this EULA and, upon receiving written notice of such breach, fails to remedy such breach within thirty (30) days following receipt of the notice; or (3) if a petition for End-User’s bankruptcy is filed or End-User has been declared bankrupt. Subscription to Solution Assurance shall automatically terminate on termination of the End-User license.
End-User is only entitled to termination any rights in this EULA insofar specifically provided for herein or authorized under applicable law. Termination of Solution Assurance or any SoW shall not affect the remainder of this EULA. End-User’s usage restrictions of the Software as set forth above (License and Restrictions) shall survive any termination of this EULA.
Upon termination of this EULA and insofar allowed by applicable law, End-User shall promptly cease to use the Software and return or destroy, at End-User’s expense and at RES’ option, all Software and any copies thereof and confirm this in writing to RES. The provisions regarding Audit, Intellectual Property, Limitation of Liability, Confidentiality, Applicable Law, Miscellaneous and Dispute shall survive the expiration or termination of this EULA.
Where Dutch law is applicable and notwithstanding any other remedies available thereunder, End-User shall not be authorized to rescind the EULA partly or entirely due to an attributable failure in the performance under this EULA.
LIMITED WARRANTY. RES warrants that the Software shall be free from material defects in materials and workmanship, and shall conform in all material aspects to the specifications as described in the documentation for a period of ninety (90) days from the Effective Date, provided the Software has been stored and used in accordance with ordinary industry practices and conditions. RES does not warrant that the functionality of the Software will meet End-User’s requirements or is fit for any particular purpose, or that the operation of the Software will be uninterrupted, error free, virus free or that defects in the Software will be corrected. It is the responsibility of End-User to isolate the Software, to use anti-virus software, to make relevant back-ups and to take other steps to ensure that the Software does not damage End-User’s information or systems.
End-User will test any Service Releases and Product Releases in a test environment similar to its production environment prior to implementing any of the Releases in its production environment. The Releases are accepted by End-User upon implementation in the production environment.
In the event that the Software does not comply with the warranty set out in this section and RES is notified of such non-conformity within the warranty period, RES, at its option, will repair or replace such non-conforming Software at no additional charge or will refund the total amount paid for the non-conforming Software minus a reasonable usage fee. RES grants no other warranty, either express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose.
The Evaluation Software and the Express Edition are provided "as is" without warranty of any kind, whether express, implied, statutory, or otherwise.
The Evaluation Software and the Express Edition are provided "as is" without warranty of any kind, whether express, implied, statutory, or otherwise.
LIMITATION OF LIABILITY. RES shall in no event be liable to End-User or any third party for any indirect, special, punitive, exemplary, incidental or consequential damages (including damages, for loss of business, loss of profits, business interruption, cost of cover, loss of data, or loss of business information) arising out of this EULA or connected in any way with the use of or inability to use the Software, Services, Deliverables or the provision of Solution Assurance, or for any claim by any other party, even if RES has been advised of the possibility of such damages. RES’ TOTAL LIABILITY TO END-USER FOR ALL DAMAGES, LOSSES, INDEMNIFICATIONS AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL NOT EXCEED € 10.000,-- (TEN THOUSAND EUROS) AND WITH RESPECT TO THE EVALUATION SOFTWARE AND EXPRESS EDITION, SHALL NOT IN ANY EVENT EXCEED € 500,-- (FIVE HUNDRED EUROS). IF END-USER IS LOCATED IN THE UNITED STATES OF AMERICA OR CANADA, THE AFOREMENTIONED MAXIMUM AMOUNTS WILL BE $ 10,000 (TEN THOUSAND DOLLARS) AND WITH RESPECT TO THE EVALUATION SOFTWARE AND EXPRESS EDITION $ 500,-- (FIVE HUNDRED DOLLARS).
RES’ liability will only arise if End-User informs RES in writing of any default and the damages resulting therefrom as soon as possible and gives RES a reasonable time to remedy a failure to perform. Any notice of default must specify the failure in as much detail as possible, so that RES will be able to act adequately. This section shall also apply for the benefit of all legal and natural persons utilized by RES in performing this EULA or any SoW.
FORCE MAJEURE. RES shall not be responsible for any failure of its obligations under this EULA to the extent that such failure is due to causes beyond RES’ control, including, without limitation, natural disaster, war, strikes, fire, floods, explosions, acts of any government or agency thereof, act of terrorism, failures of suppliers, disruption in electricity supply or non-availability of telecommunication services. If RES is prevented by force majeure from fulfilling its obligations under this EULA for more than ninety (90) days, RES and End-User are entitled to terminate this EULA in writing.
INDEMNIFICATION. As to non-Evaluation Software and non-Express Edition, RES shall indemnify, hold harmless and defend End-User against any action brought against End-User to the extent that such action is based on a claim that any Software or Deliverable, when used in accordance with this EULA, infringes a copyright of a third party. RES shall pay all costs, settlements and damages finally awarded, provided that End-User promptly notifies RES in writing of any claim, gives RES sole control of the defense and settlement thereof, and provides all reasonable assistance in connection therewith.
If the Software or Deliverable is finally adjudged to so infringe, or in RES’ opinion is likely to become the subject of an infringement claim, RES shall, at its sole discretion, do one of the following: (1) procure for End-User the right to continue to use the Software or Deliverable, (2) modify or replace the Software or Deliverable to make it non-infringing, or (3) upon return of the Software or Deliverable, refund the price paid to RES for the Software or Deliverable, minus a reasonable usage fee. RES shall have no liability regarding any claim arising out of or caused by: End-User’s use of other than the latest, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release; or any modification or derivation of the Software not created or publicly released by RES. The above states the entire liability of RES and the exclusive remedy for End-User relating to any actual or claimed infringement of any intellectual property right.
End-User shall indemnify, defend and hold harmless RES and its directors, officers, agents, employees, subsidiaries and Affiliates from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including, without limitation, attorneys’ fees), arising out of or in connection with the use of the Software that is not in strict accordance with this EULA. RES shall provide reasonable cooperation and assistance to End-User in defending the claim.
COMPLIANCE WITH LAWS. End-User must comply with all domestic and international export control laws and regulations applicable to the Software and with any governmental end-user, end-use and destination restrictions. End-User must at its own expense obtain and arrange for the maintenance of any government approval and comply with all applicable laws and regulations necessary for End-User’s performance of the EULA. End-User acknowledges that it is responsible for obtaining any licenses to export, re-export or import the Software as may be required. End-User will defend, indemnify, and hold harmless RES from and against all fines, penalties, liabilities, damages, costs and expenses incurred by RES as a result of any violation of export control laws or regulations by End-User or any of its agents or employees.
PERMANENT EFFECT. RES reserves the right to modify this EULA for any new Product Release or Service Release. By installing and continuing to use the new Product Release or Service Release of the Software over a period of thirty (30) days, End-User accepts the new or revised version of this EULA.
NOTICES. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt (except for routine business communications issued by RES, which shall not require confirmation from End-User). Notices shall be sent to the address, facsimile number or email address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices for RES shall be sent to: Het Zuiderkruis 33, 5215 MV ‘s-Hertogenbosch, The Netherlands. Fax for legal notices: +31 (0)73 622 8811. Email for legal notices: email@example.com..
APPLICABLE LAW. Except for End-Users residing in the United States, this EULA shall be governed, construed and enforced in accordance with the laws of the Netherlands, without giving effect to its conflict of law principles. Any legal action will be brought exclusively before the relevant court in Amsterdam, the Netherlands. Proceedings will take place in Dutch. For End-Users residing in the U.S. and Canada only: This EULA shall be governed, construed and enforced in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws principles. Any dispute regarding this EULA shall be subject to the exclusive jurisdiction of the state and federal courts of Philadelphia, Pennsylvania.
MISCELLANEOUS. End-User may not assign or transfer its rights or obligations arising under this EULA to any third party, including any group of companies, parent companies, subsidiaries and affiliated companies of End-User without the written consent by RES, and any such attempted assignment or transfer shall be void and without effect.
The failure of any party to enforce a provision of this EULA shall not constitute a waiver of such provision or any other provision or of the right of such party thereafter to enforce any provision of this EULA.
RES reserves the right to use End-User’s name or trademark, trade name or logo in external communications, presentations and marketing materials, and on its website and to describe the solution provided to End-User in these external communications.
CONFIDENTIALITY. During the term of this EULA, any applicable SoW and at least for a period of three (3) years after disclosure of confidential information, each party shall protect and keep confidential all non-public information disclosed by the other party (each, a “Discloser”) and identified as confidential by the Discloser, or which otherwise should reasonably be considered proprietary, confidential or commercially sensitive under the circumstances (“Confidential Information”), and shall not, except as may be authorized by Discloser in writing, use or disclose any such Confidential Information during and after the term of this Agreement. These obligations of confidentiality shall not apply to any information which: (i) was previously known to Recipient without restriction; (ii) is or becomes publicly available, through no fault of Recipient; (iii) is disclosed to Recipient by a third party having no obligation of confidentiality to Discloser; (iv) is independently developed by Recipient; or (v) is required to be disclosed as a matter of law. The parties shall limit access to Confidential Information of the other party to those employees and independent contractors who (i) need such information for the purposes of this Agreement; and (ii) have entered into appropriate confidentiality agreements. End-User shall ensure compliance with the terms of such agreements. Confidential Information may be copied and disseminated within the Recipient's own organization only to the extent reasonably required for the purposes hereof. End-User understands and agrees that RES shall suffer irreparable harm in the event that of a breach by End-User of its obligations herein and that monetary damage shall be inadequate to compensate RES for such breach. Accordingly, End-User agrees that, in the event of a breach or threatened breach of this EULA, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, RES shall be entitled to a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or restrain any such breach without the posting of a bond.
DISPUTE. Promptly following a written notice of dispute from one party to the other regarding a dispute that arises pursuant to the terms of this EULA, management of both parties will meet with each other and endeavor in good faith to resolve the dispute. If management cannot resolve the dispute, the dispute will be escalated to executive management for a further good faith effort at resolving the dispute. If the parties fail to settle the dispute via the escalation procedure described above, the parties will investigate the possibilities of submitting the dispute to mediation or arbitration before starting litigation. Any litigation will be as set forth in the section ‘APPLICABLE LAW’ of this EULA. Any mediation or arbitration requirements will not be applicable to a claim for injunctive or other equitable relief.
Copyright © 1998-2016 Real Enterprise Solutions Development B.V. Any rights not expressly granted herein are reserved by RES and its licensor(s). The Software provided by RES Software B.V. or Real Enterprise Synergy, Inc. is covered by patents, any patents pending, granted to and/or owned by Real Enterprise Solutions Development B.V. and as identified on WWW.RES.COM/LEGAL-STATEMENTSs.
Welcome to the web site of RES GROUP, which consists of RES Software, headquartered in The Netherlands (P.O. Box 33, 5201 AA `s-Hertogenbosch, Nederland. Phone: +31 (0)73 622 8800) and RES companies in the United States, United Kingdom and other countries (hereafter: "Web Site"). Please read the following terms concerning your use of the Web Site. By accessing, using or downloading any Materials from the Web Site, you agree to follow and be bound by these terms (the 'Terms'). If you do not agree with these Terms, please do not use this Web Site.
General Use Provisions
All materials provided on this Web Site, including but not limited to information, documents, databases, products, logos, design, graphics, sounds, images, software, and services ('Materials'), are provided either by RES Software or one of the companies of the RES GROUP or by third party manufacturers, authors, developers and vendors ('Third Party Providers') and are the intellectual property of RES Software and/or Third Party Providers.
Subject to legal exceptions the Materials and Web Site may not be duplicated (framing also included) copied, reproduced, distributed, re-published, downloaded, shown, sent in whatever form whatsoever, or made available to third parties or made public, without prior express written permission from RES Software. Unauthorised use of Materials and Web Site represents a violation of intellectual property rights of RES Software or Third Party Providers and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
Except where expressly provided otherwise by RES Software, nothing on this Web Site shall be construed to confer any license offer for license or sale under any of RES Software or any Third Party Provider's intellectual property rights. You acknowledge sole responsibility for obtaining any such licenses. Contact RES Software if you have any questions about obtaining such licenses. RES Software does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by RES GROUP.
RES Software hereby grants you permission to display, copy, distribute and download RES Software texts, logos, graphics, sounds and images on this Web Site provided that: (1) both a copyright notice of RES Software and this permission notice appear in these Materials; (2) the use of such Materials is solely for personal, non-commercial and informational use and will not be copied or posted on any networked computer, broadcast in any media, or used for commercial gain; and (3) these Mater
The use of the Client Portal is submitted to the RES Software General Terms & Conditions.
Any software that may be made available for download from this Web Site ('Software') is the intellectual property of RES Software or Third Party Providers. Use of the Software is governed by the terms of the End User License Agreement that accompanies or is included with the Software ('EULA'). An end user agrees to the EULA terms by installing, copying, and/or using the Software. The Software is made available for downloading solely for use by end users according to the EULA. Without limiting the foregoing, the copying or reproduction of the Software to any other server or location for further reproduction or redistribution is expressly prohibited.
Circumventing, hacking or other violation of the Web Site, RES GROUP security, dial-up or subscription systems is expressly prohibited. RES GROUP reserves the right to exclude certain IP-addresses if violation has been committed from them, or attempts with this aim have been undertaken, or illegitimate use of its systems has taken place. To this end RES GROUP can monitor the access to its websites. This does not impede RES GROUP's remaining rights to prosecution.
RES GROUP and the Third Party Providers may make improvements and changes in the Materials and Web Site at any time without prior notice. RES GROUP has the right to cancel the provision of Materials or this Web Site at any time without prior notice.
Links to third party web sites
The Web Site may contain links to web sites controlled by parties other than the RES GROUP. However, this does not mean that the RES GROUP embraces the contents of those websites. The RES GROUP is not responsible for, does not endorse, nor accepts any responsibility for the contents or the use of those web sites. RES GROUP provides those links only for your convenience.
Please consult the user conditions, privacy declaration and other legal notices of those third party web sites before you use them. It is your responsibility to arrange for the necessary precautions to ensure that what you apply for your personal use is virus free and free of other issues which are, or could be detrimental.
Subject to personal details all comment, feedback, information or material in the broadest sense of the word sent to RES Software ('Submissions') are considered as non-confidential and RES GROUP property.
At no charge the RES GROUP will be free to apply the Submissions worldwide to its own perception on an indefinite basis and for any purpose. The RES GROUP obtains the turnover of the Submissions. However, you are and remain responsible for your Submissions, including legality, reliability, appropriateness, originality and respect of intellectual property rights of third parties.
The RES GROUP exercises the greatest possible care on the reliability and topicality of the data on the Web Site. Inadequacies and incompletion can however occur. Materials and the Web Site are provided "AS IS". Materials provided by Third Party Providers have not been independently reviewed, tested, certified, or authenticated in whole or in part by RES GROUP and as such RES GROUP makes no warranty with respect to its contents.
THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE EULA. EXCEPT AS MAY BE EXPRESSLY WARRANTED IN THE EULA AND THESE TERMS, THE RES GROUP HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS WARRANTIES, GUARANTIES, AND CONDITIONS, ALSO WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. THE RES GROUP MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES, OR CONDITIONS AS TO THE QUALITY, SUITABILLITY, TRUTH, ACURACY, OR COMPLETENESS OF ANY OF THE MATERIALS AND THE WEB SITE.
Limitation of Liability
RES GROUP SHALL NOT BE LIABLE FOR DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING, DISSEMINATION OR DOWNLOADING THE MATERIALS AND THE WEB SITE OR THE IMPOSSIBILITY TO DO SO, OR AS A RESULT OF INADEQUACIES OR INCOMPLETION IN THE MATERIALS AND THE WEB SITE.
IN NO EVENT SHALL RES GROUP BE LIABLE FOR ANY DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTIONS, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF MATERIALS OR THE WEB SITE, EVEN IF the RES GROUP HAS BEEN PREVIOUSLY ADVISED TO THE POSSIBILITY OF SUCH DAMAGE.
You are yourself responsible for the protection and backup of your (computer) data and/or objects which are used with regard to The Web Site. For this reason you will not issue a claim against RES Software or one of the companies of the RES GROUP or Third Party Providers for the loss of data, incorrect output, work delay (s) or loss of turnover and/or profit as a result of the use of Materials and Web Sites.
In exchange for the acceptance of the advantages which are provided to you by the Web Site, you agree to protect the RES GROUP, its Executive Boards, employees, representatives and partners and indemnify them from judicial and extrajudicial measures, sentences and such, including - and without restriction - reasonable cost for legal assistance (lawyers, jurists and bailiffs) and accountants, who have been appointed by third parties as a result of your use of the Materials and the Web Site, your violation of the Terms or your violation of any legal regulation whatsoever or rights of third parties.
Local Law; Export Control
RES GROUP controls and operates the Materials and Web Site from its headquarter in 's-Hertogenbosch, The Netherlands, and makes no representation that these are appropriate or available for use in other locations. If you use this Web Site from other locations, you are responsible for compliance with applicable local laws including but not limited to the export and import regulations of other countries. Unless otherwise explicitly stated, all marketing or promotional materials found on this Web Site are solely directed to individuals, companies or other entities located in European Union and the United States.
U.S.-residents acknowledge and agree that Materials are subject to the U.S. Export Administration Laws and Regulations. Diversion of such Materials contrary to U.S. law is prohibited. You agree that none of the Materials, nor any direct product there from, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations. Countries subject to U.S. embargo are: Cuba, Iran, Iraq, Libya, North Korea, Syria, and Sudan. This list is subject to change without further notice from RES GROUP, and you must comply with the list as it exists in fact. You certify that you are not on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The RES GROUP does not warrant that e-mails or other electronic messages transmitted to it are swiftly received and processed, and accepts no liability for consequences of lack of or late receipt or processing of them.
RES GROUP has the right to revise these Terms at any time without notice by updating this posting.
These Terms are governed by Dutch law. No choice of law rules of any jurisdiction will apply.
- to the extent necessary to meet national security, public interest, or law enforcement requirements,
- to the extent expressly permitted by any applicable law, rule or regulation,
- where there is a conflicting or overriding legal obligation.
- carry out services of RES Software and its administrative processing;
- reply to your inquiries, provide you with requested products and services, set up your Customer’s account, i.e. via RES Software Customer Portal, and contact you regarding new products and services;
- inform you of products and services offered by RES Software and other organizations selected on the basis of your personal preferences;
- communicate with you about your account or transactions with us and send you information about features on our website or changes to our policies;
- optimize or improve our products, services and operations.
- correct, update or remove the personal information that you have provided to us;
- change your choices for subscriptions, newsletters and alerts; and
- change your preferences with respect to marketing contacts by e-mailing us at firstname.lastname@example.org. Such request will be processed within ten (10) days.
- we have your express consent to share the information for a specified purpose;
- we need to respond to subpoenas, court orders or other legal process, to establish or exercise our legal rights or defend against legal claims;
- we need to protect the personal safety of the users of our websites or defend the rights or property of RES Software; and
- has need of the Personal Information for the purpose for which that information was collected, and
- has privacy policies that are consistent with ours or agrees to abide by our policies with respect to Personal Information.
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The software of RES Software is covered by the patents listed below, any patents pending. RES Software remains entitled to amend this list from time to time. Any patents of RES Software not mentioned in this notice shall not be considered as waived. All rights reserved.
Patent US 7,433,962
Patent US 7,565,652
Patent US 8,683,018
Patent US 9,043,812
Patent US 7,725,527
Patent US 9,032,325