Terms of use
End User License Agreement
This Services Agreement ('Agreement') is entered into by and between qEEG-Pro BV, a Dutch company, registered with the Chamber of Commerce (KvK nr 70360774) the recipient of qEEG-Pro hosted products or services ('Licensee').
WHEREAS, Licensee desires to obtain other services in connection with the service from Licensor; and
WHEREAS, Licensor desires to provide such services pursuant to the terms and conditions set forth in this End User License Agreement ('EULA').
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
Definitions
a) *"Acceptance"* shall have the meaning described in Section 3(b)
b) *"Confidential Information"* shall mean (i) the financial terms, (ii) the service, technology, ideas, formula, know how, documentation, procedures, algorithms and trade secrets embodied in the Service, technical documentation, solution methodology, user manuals and other deliverables (including the developments and adaptations to the Service) and (iii) any information provided by either party to the other; except such information that (a) is known prior to its first receipt of such information, (b) is generally known to the public prior to its receipt, (c) after receipt, becomes available to the public other than as a result of a disclosure by either party, or (d) is required to be disclosed pursuant to an applicable law or by order of any court or governmental agency.
c) *'Error'* shall mean a reproducible failure of Service (as delivered by Licensor to Licensee) to perform substantially in accordance with the description of Service (as defined in the applicable Work Order) for such Service.
d) *'Intellectual Property Rights'* shall mean all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
e) *"Professional Services" *shall mean consulting, technical and support services provided by Licensor in connection with the Service. Professional Services shall not include Maintenance and Support Services.
f) *"Service"* shall mean the service systems, including any updates, customizations or enhancements, provided under this EULA.)
Rights in Service
a) *License.* Effective upon Acceptance of the Service and payment of total Fees, and provided that Licensee is and remains in compliance with the terms of the EULA, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Services and accompanying documentation.
b) *Rights.* Licensee acknowledges that the Service and its structure, organization, and source code constitute valuable trade secrets of Licensor. Licensor retains and reserves exclusive ownership of all Intellectual Property Rights in the Service, including any derivative works or modifications.
c) *Limitations.* Licensee agrees not to (i) modify, adapt, alter, translate, or create derivative works from the Service; (ii) sublicense, lease, rent, or loan the Service to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; or (v) otherwise use the Service except as expressly allowed in this EULA.
Term and Termination
a) *Term.* This EULA shall commence as of the Effective Date and shall continue in throughout the use of EEG Professionals products or services ('Term'). Maintenance and Support Services shall commence as of the Effective Date and shall continue as long as the annual Maintenance Fees are paid and this EULA is in effect.
b) *Termination for Material Breach.* Either party may terminate this EULA upon thirty (30) days notice and failure to cure after thirty (30) days.
c) *Effects of Termination.* In the event of termination of this EULA by Licensor for Material Breach, any amounts owed to Licensor under this EULA before such termination will be immediately due and payable, all licenses granted in this EULA will immediately cease to exist, and Licensee shall promptly discontinue all use of the Service, and return to Licensor any Confidential Information in Licensee’s possession or control. Notwithstanding the foregoing and if not terminated by Licensor for Material Breach and assuming all Fees have been paid by Licensor, Licensee shall perpetually retain a license to use the Service, including applicable accompanying documentation, pursuant to the terms herein. If at any time, Licensee fails to abide by the terms and conditions contained herein, Licensor retains the right to terminate the license as per the terms of this EULA.
Warranty
The parties understand that, considering the current state of the art, it is not possible to entirely exclude technical problems, to manufacture faultless software or to cure every defect. Licensor does not warrant the absence of any defects or operation in combination with other programs.
Any warranty by Licensor shall not apply to any error which is caused by Licensee, its customers or third parties, and/or any breakdown and error due to improper use improper handling, improper operating means, use with third party software not recommended by Licensor, or any tampering with the Service.
This section 'Warranty' shall constitute Licensee’s sole and exclusive remedy for breach of the above express warranties.
EXCEPT AS PROVIDED IN THIS SECTION, ALL SERVICES ARE PROVIDED 'AS IS' WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. LICENSEE RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.
*Relationship.* Licensor’s relationship with Licensee shall be that of an independent service provider and nothing in this EULA should be construed to create a partnership, joint venture, agency or employer-employee relationship.
*Confidentiality.* Both parties shall use Confidential Information only for the purposes of this EULA and shall not disclose Confidential Information to third parties.
Indemnification.
Up to the amount of the liability limit set forth in the 'Warranty' Section, Licensor will defend, at its expense, any action brought against Licensee, to the extent that such action is based on a claim of direct infringement of any duly issued patent or any copyright resulting from the supply to Licensee by Licensor, or the use by Licensee, of any Service as delivered to Licensee ("Infringement").
Should any portion of the Service as delivered by Licensor hereunder become, or in Licensor's opinion be likely to become the subject of a claim of Infringement, then Licensor may, at its option and expense: (i) procure for Licensee the right to use the Service free of any liability for Infringement; or (ii) replace or modify the applicable portion of the Service with a non-Infringing substitute.
Except as otherwise covered in sections a and b in this Indemnification section, Licensee shall defend, indemnify and hold harmless Licensor from any and all claims or causes of action arising out of Licensee's use of the Service or Licensee's use of the Service assessments or suggestion, and pay any and all damages and expenses (including reasonable attorneys fees incurred by Licensor) in connection therewith, regardless of the circumstances of the claim or damage.
The foregoing shall constitute Licensor's sole and exclusive obligation and Licensee’s sole and exclusive remedy for any infringement by the Service of any Intellectual Property Rights.
LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
*Legal Compliance.* Licensor may suspend or terminate use of Service and this EULA immediately upon receipt of any notice which alleges that Licensee has used the Service for any purpose that violates any Dutch law or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the Licensee’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and Licensee agrees not to bring any action or claim against this Licensor for such disclosure.
*Survival.* All terms of this EULA, which by their nature are intended to survive termination of this EULA, including without limitation, sections entitled 'Payment', 'Warranty', 'Limit of Liability', 'Miscellaneous', shall so survive termination.
*lce Majeure.* Any party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter.
*Miscellaneous. *Either party may assign this EULA to any successor in interest who purchases, or through change in control, owns greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the terms and conditions herein; any other assignment shall be void. This EULA and any dispute arising hereunder shall be construed in accordance with the laws of The Netherlands without regard to principles of conflict of laws. For the purpose of this EULA, Licensee consents to the personal jurisdiction and venue of the courts located in The Netherlands. If any provision of this EULA is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this EULA shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This EULA may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this EULA must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this EULA. This EULA constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Service and shall not be changed except by written agreement signed by an officer of Licensor.
Except as otherwise expressly modified herein, all other terms and conditions of the EULA shall remain in full force and effect.
This Services Agreement ('Agreement') is entered into by and between qEEG-Pro BV, a Dutch company, registered with the Chamber of Commerce (KvK nr 70360774) the recipient of qEEG-Pro hosted products or services ('Licensee').
WHEREAS, Licensee desires to obtain other services in connection with the service from Licensor; and
WHEREAS, Licensor desires to provide such services pursuant to the terms and conditions set forth in this End User License Agreement ('EULA').
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
Definitions
a) *"Acceptance"* shall have the meaning described in Section 3(b)
b) *"Confidential Information"* shall mean (i) the financial terms, (ii) the service, technology, ideas, formula, know how, documentation, procedures, algorithms and trade secrets embodied in the Service, technical documentation, solution methodology, user manuals and other deliverables (including the developments and adaptations to the Service) and (iii) any information provided by either party to the other; except such information that (a) is known prior to its first receipt of such information, (b) is generally known to the public prior to its receipt, (c) after receipt, becomes available to the public other than as a result of a disclosure by either party, or (d) is required to be disclosed pursuant to an applicable law or by order of any court or governmental agency.
c) *'Error'* shall mean a reproducible failure of Service (as delivered by Licensor to Licensee) to perform substantially in accordance with the description of Service (as defined in the applicable Work Order) for such Service.
d) *'Intellectual Property Rights'* shall mean all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
e) *"Professional Services" *shall mean consulting, technical and support services provided by Licensor in connection with the Service. Professional Services shall not include Maintenance and Support Services.
f) *"Service"* shall mean the service systems, including any updates, customizations or enhancements, provided under this EULA.)
Rights in Service
a) *License.* Effective upon Acceptance of the Service and payment of total Fees, and provided that Licensee is and remains in compliance with the terms of the EULA, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Services and accompanying documentation.
b) *Rights.* Licensee acknowledges that the Service and its structure, organization, and source code constitute valuable trade secrets of Licensor. Licensor retains and reserves exclusive ownership of all Intellectual Property Rights in the Service, including any derivative works or modifications.
c) *Limitations.* Licensee agrees not to (i) modify, adapt, alter, translate, or create derivative works from the Service; (ii) sublicense, lease, rent, or loan the Service to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; or (v) otherwise use the Service except as expressly allowed in this EULA.
Term and Termination
a) *Term.* This EULA shall commence as of the Effective Date and shall continue in throughout the use of EEG Professionals products or services ('Term'). Maintenance and Support Services shall commence as of the Effective Date and shall continue as long as the annual Maintenance Fees are paid and this EULA is in effect.
b) *Termination for Material Breach.* Either party may terminate this EULA upon thirty (30) days notice and failure to cure after thirty (30) days.
c) *Effects of Termination.* In the event of termination of this EULA by Licensor for Material Breach, any amounts owed to Licensor under this EULA before such termination will be immediately due and payable, all licenses granted in this EULA will immediately cease to exist, and Licensee shall promptly discontinue all use of the Service, and return to Licensor any Confidential Information in Licensee’s possession or control. Notwithstanding the foregoing and if not terminated by Licensor for Material Breach and assuming all Fees have been paid by Licensor, Licensee shall perpetually retain a license to use the Service, including applicable accompanying documentation, pursuant to the terms herein. If at any time, Licensee fails to abide by the terms and conditions contained herein, Licensor retains the right to terminate the license as per the terms of this EULA.
Warranty
The parties understand that, considering the current state of the art, it is not possible to entirely exclude technical problems, to manufacture faultless software or to cure every defect. Licensor does not warrant the absence of any defects or operation in combination with other programs.
Any warranty by Licensor shall not apply to any error which is caused by Licensee, its customers or third parties, and/or any breakdown and error due to improper use improper handling, improper operating means, use with third party software not recommended by Licensor, or any tampering with the Service.
This section 'Warranty' shall constitute Licensee’s sole and exclusive remedy for breach of the above express warranties.
EXCEPT AS PROVIDED IN THIS SECTION, ALL SERVICES ARE PROVIDED 'AS IS' WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. LICENSEE RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.
*Relationship.* Licensor’s relationship with Licensee shall be that of an independent service provider and nothing in this EULA should be construed to create a partnership, joint venture, agency or employer-employee relationship.
*Confidentiality.* Both parties shall use Confidential Information only for the purposes of this EULA and shall not disclose Confidential Information to third parties.
Indemnification.
Up to the amount of the liability limit set forth in the 'Warranty' Section, Licensor will defend, at its expense, any action brought against Licensee, to the extent that such action is based on a claim of direct infringement of any duly issued patent or any copyright resulting from the supply to Licensee by Licensor, or the use by Licensee, of any Service as delivered to Licensee ("Infringement").
Should any portion of the Service as delivered by Licensor hereunder become, or in Licensor's opinion be likely to become the subject of a claim of Infringement, then Licensor may, at its option and expense: (i) procure for Licensee the right to use the Service free of any liability for Infringement; or (ii) replace or modify the applicable portion of the Service with a non-Infringing substitute.
Except as otherwise covered in sections a and b in this Indemnification section, Licensee shall defend, indemnify and hold harmless Licensor from any and all claims or causes of action arising out of Licensee's use of the Service or Licensee's use of the Service assessments or suggestion, and pay any and all damages and expenses (including reasonable attorneys fees incurred by Licensor) in connection therewith, regardless of the circumstances of the claim or damage.
The foregoing shall constitute Licensor's sole and exclusive obligation and Licensee’s sole and exclusive remedy for any infringement by the Service of any Intellectual Property Rights.
LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
*Legal Compliance.* Licensor may suspend or terminate use of Service and this EULA immediately upon receipt of any notice which alleges that Licensee has used the Service for any purpose that violates any Dutch law or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the Licensee’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and Licensee agrees not to bring any action or claim against this Licensor for such disclosure.
*Survival.* All terms of this EULA, which by their nature are intended to survive termination of this EULA, including without limitation, sections entitled 'Payment', 'Warranty', 'Limit of Liability', 'Miscellaneous', shall so survive termination.
*lce Majeure.* Any party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter.
*Miscellaneous. *Either party may assign this EULA to any successor in interest who purchases, or through change in control, owns greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the terms and conditions herein; any other assignment shall be void. This EULA and any dispute arising hereunder shall be construed in accordance with the laws of The Netherlands without regard to principles of conflict of laws. For the purpose of this EULA, Licensee consents to the personal jurisdiction and venue of the courts located in The Netherlands. If any provision of this EULA is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this EULA shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This EULA may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this EULA must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this EULA. This EULA constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Service and shall not be changed except by written agreement signed by an officer of Licensor.
Except as otherwise expressly modified herein, all other terms and conditions of the EULA shall remain in full force and effect.