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End-User License Agreement ("Agreement")

End User License Agreement |GSoftware

Date: Januari 17, 2022

GSoftware, with its principal office located at Bellinipark 3 in Drunen and registered with the Chamber of Commerce under registration no. 69252580, has developed a low code development platform named the Ultimate Web Tool that can be used to create business web applications.

This End User License Agreement applies to the use of the Software. Please read it carefully because by clicking the “I agree” button, purchasing or installing the software End User agrees to be bound by the terms and conditions herein.

1. Definitions

All capitalized definitions in this EULA, both plural and singular, are defined as indicated in this article.

1.1. Annex: each annex to the EULA. All annexes constitute an integral part of the EULA.

1.2. End User: a natural or legal person acting in the exercise of a profession or business, with whom GSoftware concludes this EULA.

1.3. EULA: this end user license agreement between GSoftware and End User, including any Annexes thereto.

1.4. GSoftware: GSoftware, with its principal office located at Bellinipark 3 in Drunen and registered with the Chamber of Commerce under registration no. 69252580.

1.5. Intellectual Property Rights: all intellectual property rights and related rights, including, but not limited to, copyrights, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.

1.6. Partner: an End User with whom GSoftware has entered into a partner agreement.

1.7. Party(‘s): End User and GSoftware, jointly (plural) or separately (singular).

1.8. Portal: GSoftware’s online ordering system and control panel for End Users.

1.9. Software: the software (ultimate web tool or UWT for short) developed by GSoftware to create business web applications.

1.10. In writing: in this Agreement, written communication also includes communication by e-mail provided that the identity of the sender and the integrity of the content is sufficiently established.

2. Conclusion and performance of the EULA

2.1. By clicking the “I Agree” button, downloading or using the Software, you are agreeing to be bound by the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, do not click on the “I Agree” button and do not download or use the Software.

3. Grant of license

3.1. The Software is licensed, not sold. GSoftware grants you a revocable, non-exclusive, non-transferable license to download, install and use the Software solely for purposes in accordance with the terms of this EULA.

3.2. All Intellectual Property Rights, copyrights and trademarks as well as all related information remain the property of GSoftware (or its licensors). None of these items may be copied or used, except and to the extent permitted by mandatory law.

3.3. The Software may have limitations regarding the number of computers or the number of users within the organization of End User that may use the Software depending on the license bought.

3.4. GSoftware grants End-User the non-exclusive, non-transferable right to use the work created (application created using the Software) on the same terms and conditions under which GSoftware grants End-User the right to use the Software. GSoftware may provide similar services or created work to other end users as long as GSoftware does not infringe End Users Intellectual Property Rights.

3.5. It is expressly forbidden to:

copy or use the Software for any purpose other than as permitted under this EULA;
modify, make derivative works of, reverse engineer or decompile the Software or to remove any protective measures that have been taken to protect the Software against unauthorized modifications except to the extent permitted by mandatory law or applicable open source license;
sublicense the Software or otherwise make available the Software to third parties, including by placing the Software on a server to which End User has access, rental, Software-as-a-Service models or otherwise;
remove indications of GSoftware as party entitled to the Software (including any notice of copyright or trademark) or to remove or render illegible any part thereof.
disclose the results of software (performance) benchmarks obtained using the trial or commercial version to any third party without GSoftware’s prior written consent.

Notwithstanding the items mentioned above:

You may make copies of the Software for the sole purpose of backing-up and archiving the Software. Any copy of the Software is subject to all terms and conditions of this Agreement and must contain the same titles, trademarks, and copyrights as the original.
the Software may be installed within a virtual (or otherwise emulated) hardware system as long as the use of the Software meets the terms of the license type and the virtual machines are run on hardware owned or leased by You. Virtualization technology may not be used to circumvent the licensing terms and restrictions.

4. Use and misuse

4.1. It is prohibited to use the Software in a manner that is in violation of the EULA or applicable laws and regulations. Additionally, using the Software in a manner that may cause hindrance or loss and/or damage to GSoftware or any third party is expressly not permitted.

4.2. You may not access the Software if you are a direct competitor of GSoftware, except with our prior written consent.

4.3. The Software is not fault-tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the application could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, GSoftware and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

4.4. If GSoftware determines that End User has violated the EULA or applicable laws and regulations, or receives a complaint in this regard, GSoftware may take measures to end the violation. These measures may include the suspension or termination of access to the Software.

4.5. End User will follow all reasonable instructions issued by GSoftware related to the use of the Software.

4.6. GSoftware may recover from End User any loss and/or damage sustained as a result of violations of the EULA.

4.7. End User warrants and represents that any submission or uploading of (personal) data in the Software is lawful and that the processing of such data is in accordance with the applicable privacy laws and regulations.

5. Indemnification

5.1. End User agrees to indemnify and hold GSoftware and its employees or partners harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of:

loss and/or damage caused by violation of this Agreement or any law or regulation;
your violation of any third-party rights, in any case including but not limited to Intellectual Property Rights;
your violation of the privacy of third parties, in any case including but not limited to distributing third-party personal data without permission or necessity, or repeatedly harassing third parties by providing them with unsolicited communications;

6. Availability and maintenance

6.1. GSoftware endeavours to make the Software available at all times but does not issue any guarantees concerning specific percentages of availability or quality. As such, the Software is made available on an “as is” and “as available” basis.

6.2. GSoftware is entitled to modify the Software or parts thereof in order to provide enhancements, improve existing functionality and to repair errors. If a modification leads to a significant change in the functionality, GSoftware shall make every effort to inform End User thereof. However, GSoftware alone shall decide on the modifications.

6.3. GSoftware shall make every effort to add changes and new functionality to the Software requested by the End User. However, GSoftware shall at all times be entitled to refuse such a request if, in its opinion, it is not feasible or could impede the proper functioning or availability of the Software.

7. Implementation and support

7.1. End User itself is responsible for the implementation, maintenance, and support of the Software. End User should have employees with appropriate skills to fulfil these tasks. End User should think among other things of:

defining the Software requirements;
applying the appropriate configurations;
coding specific business logic;
writing (user, maintenance) documentation;
offering first- and second-line support;
host the software;

7.2. It is End Users obligation to make regular backups of the databases to prevent loss of data. In no event shall GSoftware be held responsible for any loss of data as a result of using the Software. When End User has a question related to implementation, functional issues, or wants to report a bug End User should create a ticket in the web Portal. For End Users tickets are not part of the software license but have to be purchased separately in the online store (see annex 3 for further details regarding support and tickets). For Partners support is part of the partner agreement.

7.3. End User may at all times submit feedback and points for improvement for further development of the Software. If the End User sends information to GSoftware, e.g. feedback about an error or a suggestion for improvement, End User grants GSoftware an unlimited and perpetual right to use this information for the Software for free. The End User’s feedback and suggestions are welcome, but GSoftware is entitled not to make the adjustments if it has reasonable grounds to do so.

8. Liability

8.1. The liability of GSoftware for damage incurred by the End User due to a culpable failure of GSoftware to comply with its obligations under the EULA, or due to an unlawful act committed by GSoftware, its employees or third parties engaged by it, is limited per damage-causing incident, whereby a series of connected incidents count as a single incident, to an amount equal the amounts that GSoftware has received from End User under the EULA in the twelve (12) months prior to the damage-causing incident. The total sum payable for direct damages, however, can never exceed 5000 euro per event or 10000 euro per year (excluding VAT).

8.2. The liability of GSoftware for indirect damage, including without limitation consequential loss, loss of earnings, missed economies, loss or corruption of (business) data and damage due to business stagnation is excluded.

8.3. The liability limitations referred to in this article will however lapse if and insofar as the damage is the result of intentional misconduct or gross negligence on the part of GSoftware.

8.4. The obligation for GSoftware to pay compensation will only arise if End User sends written notice to GSoftware of this damage within fourteen (14) days of the damage occurring.

8.5. Neither Party will be bound to comply with any obligation if the Party is prevented from doing so through force majeure. Force majeure will be deemed to include, among other things, communications or power failures, (distributed) denial of service or other network attacks, riot, insurrection, labour disputes, accident, action of government, restrictions on import and/or export or any inability to perform which is caused by the Party’s suppliers.

9. Prices and payment

9.1. Products (licenses, modules, tickets) bought in the online store have to be paid immediately as part of the ordering process.

9.2. No refunds are available. If End User wants to evaluate the Software before purchase End User should select the trial version which offers the possibility to test the Software for one month for free.

9.3. Prices are available in the online store of GSoftware and are in euros and exclusive of VAT.

9.4. GSoftware may alter the prices from time to time due to inflation, labour costs, or any other circumstance.

10. Term and termination

10.1. This EULA shall enter into force after selection of the “I Agree” button in the online store and shall remain in force for as long as the license applies.

10.2. Without prejudice to any other rights and remedies hereunder, GSoftware shall be entitled to terminate the EULA if End User commits a breach of any of its obligations under this EULA and such breach is irremediable or – if such breach is remediable – End User fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.

11. Changes to the EULA

11.1. GSoftware reserves the right to change or supplement the EULA at any time, due to (changing) laws and regulations or for the purpose to improve an existing provision or to add a new provision.

11.2. If it concerns a change due to change in laws or regulations or it concerns a minor change (rephrasing, clarification) GSoftware will provide at least 14 days notice prior to any new version taking effect. In these events, End User is not entitled to terminate the EULA. For all other changes, the revised version of the EULA will become effective the next time you buy something from the online store and accept (agree to) the revised EULA as part of the purchase process.

11.3. If any provision, or part of a provision, of the EULA is found by any court or authority of competent jurisdiction to be illegal, invalid or otherwise unenforceable, that provision or part-provision shall be deemed not to form part of the EULA, and the legality, validity or enforceability of the remainder of the provisions of the EULA shall not be affected, unless otherwise required by operation of applicable law.

12. Marketing

12.1. GSoftware is allowed to use the (company or trade) name, logo and a general description of the End User for his own promotion and/or publicity.

13. Applicable law

13.1. This EULA is governed by and construed in accordance with the laws of the Netherlands.

13.2. All disputes arising from the EULA between the Parties shall be submitted to the competent court for the district in which GSoftware is established.

14. Transfer and acquisition

14.1. GSoftware will be authorised, at any time, to assign, novate or otherwise transfer the EULA and all its rights and obligations arising therefrom to a third party that acquires the business operations to which the EULA is subject, without the need for End User prior consent. This includes the acquisition of the EULA by GSoftware.

Annex 1| License restrictions

1. Trial version restrictions

If you purchase the free trial of the Software (the “Trial Version”) from the online store, GSoftware will make the the Software available to you on a temporary basis free of charge until the end of the trial period. The Trial Version may be used only to review, evaluate and demonstrate and only for internal purposes. The Trial Version may have limited features. The Trial Version will cease to operate after the applicable time (trial) period. Regardless of any build in checks in the Software, You must stop use of the Software at the end of your trial period.

During the trial period you have the right to obtain support by means of sending an email or by submitting a ticket. Support is however limited to questions related to understanding the available functionality and its application.

In any case you shall not:

install or use more than the allowed amount of instances of the Trial Version,
download the Trial Version under more than one name,
alter the contents of a hard drive or computer system to enable the use of the Trial Version for a longer period than the trial period as stated in the license,
use the Trial Version for any commercial training or any application deployment or production purpose,
use the Trial Version to update Software that is no longer eligible for maintenance and support,
use the Trial Version other than for the sole purpose of determining whether to purchase a license to the Software.

Any data you enter into a Trial Version during any free trial may be permanently lost unless you purchase a license to the same software as those covered by the trial, purchase upgraded software, or export such data, before the end of the trial period.

2. Commercial version restrictions

If you buy a commercial (non free) license for the Software, GSoftware will make the application, after payments, available to you by means of a download from the Portal account.

End User shall have no right to claim a refund for any sums paid by End User to GSoftware. End User can use the trial version to test if the Software is fit for its intended purpose.

For standard End Users support is not included in any of the commercial versions and can be purchased separately through our online store. For Partners support is part of the partner agreement.

The commercial version comes with restrictions related to the amount of users that are allowed to use the Software or the amount of active instances at any given time or both. It is possible though from inside the application to deactivate instances you no longer use. For example when you install your application on new hardware and the old hardware becomes obsolete.

You are not allowed to manipulate any system or hardware features to (try to) circumvent these licensing terms and restrictions. If you want to extend your license you can buy additional licenses or contact GSoftware.

Subscription license

If you purchase a subscription license the license is valid for the in the license specified period of time. You need to purchase a new license before this period expires to continue using the Software. A subscription license includes updates meaning that if new versions of the Software become available you can freely download and use these new versions.

Perpetual license

If you purchase a perpetual license the license is valid indefinitely. The perpetual license does not include software updates. The version of the Software you purchase is part of the license.

Annex 2| Third party components

1. Third-Party Components

The Software contains code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components, and you acknowledge and agree that these accompanying license terms govern their use. Nothing in this Terms of Service limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Components.

If required by any license for a particular Third Party Component, GSoftware makes the source code of such Third Party Component, and any of GSoftware’s modifications to such Third Party Component as required, available by written request to GSoftware at the following address: info@ultimatewebtool.com.

You acknowledge and agree that GSoftware shall not be responsible for any Third-Party Component regarding their accuracy, completeness, timeliness, validity, copyright compliance, legality, quality or any other aspect thereof. GSoftware does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Components.

Third-Party Components and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to the third parties’ terms and conditions.

Annex 3| Support

3.1 Description

The End User is required to provide full support to its users. For the third line support however, End User can fall back on the support service as offered by GSoftware through its ticketing system part of the customer Portal.

For End Users that are not a Partner (with whom GSoftware has not entered into a partner agreement) tickets are not part of the licensing of the Software but can be purchased separately in the online store in packages of ten (10) tickets.

Tickets can be related to:

bugs,
requests for additional functionality,
functional questions (API related),
implementation questions.

Tickets related to bugs and requests for functionality (a and b) will not be deducted from the bought (available) ticket amount.

GSoftware is not required to fix any bug or implement any changes requested by End User. GSoftware decides at its own discretion which bugs or changes to fix or implement and which not.

GSoftware will make an effort to answer a ticket within ten (10) working days. If a ticket requires code changes it depends on the severity and complexity of the change when a solution will be available.

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