License Agreement

THE UNDERSIGNED: 

Total Concept Group B.V., (TCOG), having its office at the Nevelgaarde 54 3436 ZZ, Nieuwegein, The Netherlands, hereby represented by Mr. Rembrandt Kuijpers (“Licensor”) 

and 

[LICENSEE], having its office at [LICENSEE ADDRESS] in [LICENSEE CITY], [LICENSEE COUNTRY], hereby represented by [LICENSEE CONTACT] (“Licensee”) 

Hereinafter to be called “Party” individually and “Parties” together 

This License Agreement (“Agreement”) enters into force from the moment that both parties have accepted and signed this Agreement (“Effective date”). 

Article 1. Content of licensed materials; grant of license 

1. The materials that are the subject of this Agreement shall consist of all TCOG Software, such as but not limited to the TCOG Apps, TCOG Integrations or Per Tenant Extensions (Customizations or PTE’s) or software components (the “Licensed Materials”). 
2. Licensee and its Authorized Users acknowledge that the copyright and title to the Licensed Materials and any trademarks or service marks relating thereto remain with Licensor and/or its suppliers. Neither Licensee nor its Authorized Users shall have right, title or interest in the Licensed Materials except as expressly set forth in this Agreement. 
3. Licensor hereby grants to Licensee a non-exclusive, non-transferable and immediately revocable use of the Licensed Materials. Furthermore this right is granted solely for the Licensee. This with regard to further conditions and restrictions as set out in this License Agreement.
4. Licensee may only use the Licensed Materials for the purpose for which it has been made available by Licensor to the Licensee.
5. Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party.
6. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.  

Article 2. Reverse engineering, modifying and copying 

1. Licensee shall not knowingly permit anyone other than Authorized Users to use the Licensed Materials. Authorized users are Licensee’s employees who are registered as Microsoft Dynamics NAV users or Microsoft Dynamics 365 Business Central users. 
2. Licensee shall not modify, reverse engineer and/or decompile the Licensed Materials and/or create a derivative work of the Licensed Materials without the prior written and signed permission of Licensor.
3. Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials.
4. Other than as specifically permitted in this Agreement, Licensee may not use the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form.
5. Upon request of Licensee, Licensee may receive from Licensor and/or create one (1) copy of the entire set of Licensed Materials to be maintained as a backup or archival copy during the term of this Agreement. 
6. Licensor is not liable for third party licensing obligations, or changes in third party licensing structures after signature date of this agreement. 

Article 3. Confidentiality 

1. Where access to the Licensed Materials is to be controlled by use of passwords, Licensee shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor. 
2. Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Licensed Materials. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.  

Article 4. Terms, Renewal, and Early Termination 

1. If Licensee chooses to acquire the License by paying the one-time license fee, the Licensee will be granted a perpetual right to use the Licensed Materials. If Licensee chooses to acquire the License by subscription, this Agreement will continue in effect for 1 year commencing on the Effective Date. In that case, the agreement will be automatically renewed at the end of the term for an indefinite period of time, unless either party gives written notice of its intention not to renew at least 3 months before expiration of the current term. During the first year of the license subscription, Licensee is not entitled to terminate the Agreement, unless in the case as mentioned in Paragraph 3 or 4 of this Article. 
2. After the renewal of the Agreement for an indefinite period of time as stipulated in the third sentence of Paragraph 1 of this Article, Parties may terminate the Agreement with or without cause by giving the other Party written notice of termination at least 3 months in advance. 
3. Licensor is furthermore entitled to terminate the Agreement immediately upon written notice, if Licensee has chosen to subscribe to the Licensed Materials and if: Licensee is placed under moratorium, or applies for a moratorium; Licensee is declared bankrupt, or if a bankruptcy petition is filed on behalf of or against Licensee; Licensee has been dissolved or its business has been discontinued or wound up. 
4. In the event that either party believes that the other has breached any obligations materially under this Agreement, or if Licensor believes that Licensee has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have 8 weeks from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the 8 weeks, the non-breaching party shall have the right to terminate the Agreement without further notice.
5. Upon termination of the Agreement in any way, Licensee shall return the Licensed Materials and its copies back to Licensor within 2 weeks after the termination of the Agreement. The Licensed Materials need to be removed immediately from all present equipment of the Licensee and/or related companies after the termination of the Agreement. 

Article 5. Support and enhancement 

1. The support granted by TCOG does not entail the implementation of the Software. 
2. TCOG actively supports both the current and the previous version, at time of purchase. This means that necessary fixes are provided actively. The version before the previous version is supported passively, meaning that a necessary fix can be provided at request, for a period of two years. 
3. ‘Software enhancement’ assures customers of license updates (minor releases and fixes) and license upgrades (major releases) for the acquired Licensed Materials. 
4. Once software enhancement is stopped, future license updates and upgrades are no longer free of charge. 
5. Enhancement is renewed automatically and invoiced annually in advance, unless Licensee gives the Licensor at least 2 months prior written notice before the end of the enhancement period. 
6. Costs of implementation (hours) required to migrate to a newer version of the Licensed Materials are not included in the software enhancement. 

Article 6. Limited Warranty 

1. If the Licensee, within a period of ninety (90) days following the licensee’s signature of this Agreement, provides written documentation demonstrating that the Licensed Materials do not perform substantially in accordance with its electronic user documentation, and that there is a significant error in the Licensed Materials, (i.e. an error characterized by the fact that one or more of the Licensee’s vital business functions cannot be carried into effect owing to the fact that the error renders the Licensed Materials inoperable), Licensor shall either: deliver, free of charge, a new version of the Licensed Materials without the error; correct the error free of charge.  
2. In case delivery of a new version of the Licensed Materials or correcting the error of the current version cannot be established, Parties are entitled to dissolve the Agreement. 
3. The performance of Licensor obligations under Clause 6.1 shall be Licensor’s total maximum liability and Licensor’s entire obligation to the licensee as a consequence of all and any errors In the Licensed Materials, and the licensee shall have no other claims against Licensor as a result of such errors. Error correction may also be executed as a statement of procedures or manners of application (“work arounds”) whereby the error will have no significant effect on the Licensee’s use of the Licensed Materials. 
4. This limited warranty is void if failure of the Licensed Materials has resulted from accident, abuse or misapplication. Any modifications of the Licensed Materials by anyone other than Licensor voids the foregoing warranty on any portion of the Licensed Materials. 
5. License is granted on an “as-is” basis with no other warranties, representations, obligations of remedy or rights other than those described in Clause 6.1. Licensor does not warrant that the Licensed Materials meet Customer’s requirements. Accordingly, the licensee shall have no right to raise claims against Licensor if the Licensed Materials contain errors and inconveniences not covered by Clause 6.1.  

Article 7. Limitation of Liability 

Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the licensed materials.  

Article 8. Exclusion of Liability 

Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any licensed materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.  

Article 9. Indemnities 

Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party’s expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of the Agreement. 

Article 10. Governing Law 

This Agreement shall be construed and controlled according to, and governed by, the laws of the Netherlands excluding any such laws that might direct the application of the laws of another jurisdiction. The federal or state courts located in Rotterdam, the Netherlands shall have jurisdiction to hear any dispute under this Agreement. 

Article 11. Force Majeure 

Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. 

Article 12. Amendment 

No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee. 

Article 13. Severability 

If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.  

Article 14. Waiver of Contractual Right 

Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.  

The parties have executed this Agreement by their respective, duly authorized representatives as of the date of signing.