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This End User License Agreement (the "Agreement") is a legal agreement between you, an individual or other legal entity (either you, personally, if you have acquired the Product for yourself, or another legal entity which has acquired the Product on your behalf; hereinafter referred to as the "Licensee") and Parallaxter SRL, a company established and existing under the laws of Belgium, having its registered office at 26 Rue Dechampheleer, 1081 Brussels, Belgium (the “Company"), which sets forth the terms and conditions of the license to use the PresenZ Player Bundled with the “Construct VR Movie ” content (including any updates, upgrades, modifications or error corrections that may be provided later by the Company, and any user manuals, programming guides and other documentation provided to you by the Company under this Agreement) and accompanying documentation (the "Product").
The Company, for and on behalf of itself and its subsidiaries and affiliates under common control or acting on behalf of an authorized reseller by the Company, is willing to license the Product to the Licensee only upon the condition that the Licensee accept all of the terms contained in this Agreement. Please read the Agreement carefully. By selecting the “Accept License Agreement” (or the equivalent) button and/or by using the Product the Licensee acknowledges that he has read the terms and agrees to them. If the Licensee is agreeing to these terms on behalf of a company or other legal entity, the Licensee represents and warrants that he has the legal authority to bind the legal entity of these terms. If the Licensee does not have such authority, or if the Licensee does not wish to be bound by the terms, then he must select the “Decline License Agreement” (or the equivalent) button and he must not use the Product on this site or any other media on which the Software is contained.
1. License to use.
1.1. Subject to the terms and conditions of this Agreement, the Company grants the Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use internally the Product complete and unmodified . The Licensee is authorized to load, execute, and keep the Product on a computer storage device or on a network server under its control and solely for internal use; and to copy the Product solely for the purpose of installing it on the Licensee computers and for backup storage, solely for its internal use in connection with its use of the Product.
1.2. All licenses granted by the Company to the Licensee pursuant to this Agreement will immediately and automatically terminate if (i) at any time the Licensee does not timely comply with any obligation under this Agreement, or (ii) upon termination of this Agreement. In such cases, the Licensee will immediately stop using the Product and promptly remove the Product from all Licensee equipment.
2. Restrictions.
2.1. Without prejudice to the other restrictions applicable under this Agreement or the Applicable Law, the Licensee shall not:
a) Reproduce or copy the Product, except for back-up copies made only for its personal usage and which cannot be provided to any third parties and for copies which are needed for the proper functioning of the Product (e.g. installation copies) ;
b) Use any part of the Product to develop any software or any products or services or create derivative works of the Product;
c) Give the Product away in any way (assign, sublicense, loan, sell, charge, distribute, share, transfer, pledge, lease exchange, donate, rent or other) to any third parties. The Licensee is not allowed to sell, transfer, assign or grant access to his/her licensed copy to a third party or otherwise make the Product or any password, key, or other access code for the Product available to any third party;
d) Make any translation, adaptation, arrangement and any other modification of the Product or make any reproduction, distribution, communication, display, or performance to the public of the results of such acts;
e) Adapt, modify decompile, disassemble, alter, reverse compile, reverse assemble or reverse engineer the Product or otherwise attempt to discover the source code of the whole or any part of the Product, unless and only to the extent that applicable law expressly prohibits this restriction;
f) Replace any part of the Product by the Licensee’s own plug-in or software which would be compatible with other parts of the Product and that would circumvent the licensing fees that should be paid to the Company, such as, for example, a new volumetric player directly or indirectly compatible with the output formats of other parts of the Product;
f) Remove, minimize, block, alter or modify any titles, logos, trademarks, copyright and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the Product;
g) Circumvent the license management software or the watermark removal procedure; defeat or work around any access restrictions or encryption in the Product, unless and only to the extent that applicable law expressly prohibits this restriction;
h) Use any watermarked image for commercial purposes.
i) Not by itself or with others participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to the Company or the Product.
2.2. The Licensee is entitled only to the rights specified in Article 1 of this Agreement. All rights not expressly granted to the Licensee in this Agreement are reserved to the Company.
2.3. This Agreement does not entitle the Licensee to any upgrades or maintenance, technical, or other services for the Product, which the Company does not warrant the availability and which the Licensee may be required to purchase separately as the case may be.
3. Feedback. If the Licensee provide the Company with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by the Licensee for the Product ("Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary the Licensee may include in any accompanying communication), and the Company shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Product or any other hardware, software or services from the Company. The Licensee hereby grant the Company a perpetual, irrevocable, transferable, licensable, sub-licensable, non-exclusive license without license fees under all rights necessary to so incorporate and use Licensee’s Feedback for any purpose, including to make and sell products and services.
4. Reserve of rights.
4.1. Subject to the provisions of this Agreement, the Company or its licensors (as applicable) retain all right, title and interest in and to the Intellectual Property Rights (including but not limited to copyrights, patents and trademarks) related to the Product, including the right to transfer or license such Intellectual Property Rights to third parties for any purpose. In particular, the Company’s and its licensors’ software is copyrighted and title to software and all associated intellectual property rights is retained by the Company or its licensors (as applicable).
4.2. Nothing in this Agreement shall be deemed or implied to be, and the Parties disclaim all implied rights to, the grant by the Company to the Licensee of any license, right, title or interest in the Company’s products, services, Intellectual Property Rights, any technology or know-how, operating procedures, marketing materials or strategies, intangibles, material or proprietary rights or any other tangible or intangible property, except as are expressly set forth in this Agreement. In particular, no rights (including any and all Intellectual Property Rights) of the Company or its licensors are being transferred or assigned to the Licensee under this Agreement.
4.3. The Company or its licensors (as applicable) shall remain the sole owner of all information related to the Product, obtained or developed in the course of performance of this Agreement and the related Intellectual Property Rights. The Company has the right to make any changes, improvements, corrections, updates, upgrades or other modification of the Product it considers appropriate, at any time.
4.4. The license granted under this Agreement is not a sale of the Product and this Agreement does not entitle the Licensee to any rights to patents, copyrights, trademarks, service marks, trade secrets, confidential information or any other rights or license with respect to the Product. The Licensee agrees to hold the Product in confidence and to take reasonable measures to prevent unauthorised copying. The Licensee shall not remove or modify any copyright symbols, trademarks, labels, property notices and technical protection measures on any and all copies of the Product.
4.5. If the Licensee learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity by a third party with respect to any Intellectual Property Rights related to the Product, (an “Infringement”), the Licensee shall promptly notify the Company in writing and shall promptly provide the Company with available evidence of such Infringement. The Company has the right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to Infringement of any Intellectual Property Right related to the Product.
5. Limitation of liability. To the extent permitted by law, the Company will not be liable for indirect, incidental, special, consequential, punitive or exemplary damages (including any loss of revenue, profits, goodwill, use or data) arising in connection with this Agreement or the Product even if the Company has been advised of the possibility of those damages. Further, the Company total aggregate liability and exclusive remedy for any matter arising in connection with this Agreement or the Product shall be, at the Company’s option, limited to attempt to correct or work around errors, to replace the Product or to terminate the Agreement. In no event shall the Company’s liability to the Licensee, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by the Licensee to use the Product . In all cases, the Company will only be liable in case of gross negligence or willful misconduct or any other case which may not be excluded or limited under the Applicable Law
6. Disclaimer.
6.1. The Product is provided on a “as is” and “as available” basis without warranties of any kind neither expressed nor implied. The Licensee’s use of the Product is at the Licensee’s sole risk.
6.2. The Company does not make any representation or warranty of any kind, whether express, implied, statutory or otherwise with respect to the Product. Unless expressly set forth in this Agreement, the Company disclaim to the fullest extent permitted by Applicable Law all warranties with respect to the Product, whether in fact or in law, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any warranties arising out of any course of dealing, performance, or trade usage. The Company shall not be liable to any Licensee and to any third party for any modification, price change, involuntary suspension or discontinuance of the Product or any other item provided or otherwise made accessible to the Licensee under this Agreement.
6.3. In particular, the Company shall not be responsible or liable for any errors, inaccuracies, or service interruptions, power outages or system failures of the Licensee’s or Third Party’s infrastructures in relation with the Product. The Company does not warrant that the Product will meet the Licensee’s requirements or that the operation of the Product will be uninterrupted or error free, or that defects in the Product will be corrected. The Company does not warrant the correctness or accuracy of the results obtained from the use of the Product.
6.4. No advice or information obtained by the Licensee from the Company will create any warranty not expressly stated in this Agreement. The Company shall not be responsible or liable for any direct, indirect, incidental, special, consequential or exemplary compensation, reimbursement, or damages including damage for loss of profits, prospective profits or revenue, anticipated sales, goodwill or other benefits, data, use or any other intangible losses, any investments, expenditures, or commitments by the Licensee (event if the Company has been advised of the possibility of such damage) in connection with this Agreement or the Licensee’s use of or access to the Product, or any termination or suspension of this Agreement or resulting from: (i) the misuse or the inability to use the Product; (ii) the impossibility to use the Product or its non—availability (iii) unauthorized access to or alteration of the Licensee’s transmissions or data.
6.5 Without prejudice to the other provisions of this Agreement, the Licensee acknowledges that the Product is developed for general use in a variety of systems and applications. The Licensee acknowledges that the Product has not been developed to meet the Licensee’s individual requirements and that it is therefore the Licensee’s responsibility to ensure that the facilities and functionality of the Product meet such requirements. The Product is not developed or intended for use in a specific system or application or in any inherently dangerous applications, including applications that may create a risk of personal injury. If the Licensee uses the Product in dangerous applications, then the Licensee shall bear all risks associated with such use. The Company disclaims any express or implied warranty of fitness for such uses.
6.6. The Licensee is solely responsible for acquiring, servicing, maintaining and updating, at its sole expenses, its own equipment (including hardware, computers and appropriate telecommunications services), which will allow the Licensee to access and use the Product. The Licensee shall make sure that its equipment is adaptable to, compatible with and suitable for the use of the Product. Without prejudice to the other limitation of liability included in this Agreement, the Company does not warrant the compatibility of the Product with all types of equipment and the Product is not compatible with all equipment.
7. Indemnification
7.1. The Licensee shall be solely responsible and liable for its use of the Product.
7.2. The Company will have no liability for any use of the Product by the Licensee or for any of the Licensee’s claims or for any claim by Third Parties relating to these matters. The Licensee hereby agree to defend, indemnify, hold harmless and release the Company, the Company’s Affiliates, licensors and partners, and their respective owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, from and against all claims, damages (whether direct, indirect, incidental, consequential, punitive, exemplary or otherwise) losses, liabilities, costs, and expenses (including attorneys' fees) of every kind and nature, known and unknown, arising in connection with or in any way connected with (i) any use or misuse that the Licensee make of the Product (ii) the Licensee’s violation of any term or condition of this Agreement or the Applicable Law; (iii) any act or omission by the Licensee, or the Licensee’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, which constitutes recklessness, gross negligence, or willful misconduct on the part of the Licensee, or the Licensee’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives.
8. Termination
8.1. This Agreement is effective until terminated. The Licensee may terminate this Agreement at any time by permanently and completely destroying all copies of the Product. This Agreement will terminate immediately without notice and without compensation from the Company if the Licensee fails to comply with any provision of this Agreement. The Company may terminate this Agreement at any time, for any reason, without notice and without compensation by notifying the Licensee. Either party may terminate this Agreement immediately, without notice and without compensation, should any part of the Product become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon termination, for whatever reason, the Licensee must immediately stop using the Product and permanently destroy all copies of the Product under its control. In case of termination of this Agreement, the Company shall not refund any pre-paid fees paid by the Licensee prior to the termination date, even though the services have not been performed as a result thereof.
9. Assignment.
This Agreement shall not be assignable by the Licensee to any Third Party hereto without the written prior consent of the Company. The Company may assign this Agreement, without the written prior consent of the Licensee to any Third Party or an entity that acquires all or substantially all of the business or assets of the Company to which this Agreement pertains (whether by merger, reorganization, acquisition, sale or otherwise), and agrees in writing to be bound by the terms and conditions of this Agreement. Any attempt by the Licensee to assign, sublicense or transfer this Agreement or the rights and obligations under this Agreement shall be null and void. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
10. Amendments.
Unless otherwise provided for into this Agreement, the Agreement shall not be amended, altered or changed except by written agreement duly signed by both Parties. This Agreement may be amended at any moment by the Company.
11. Miscellaneous.
11.1. Performance Warranty. Each Party hereby acknowledges and agrees that it shall be responsible for, and irrevocably, absolutely and unconditionally guarantees, the full and timely performance as and when due under, and observance of all the covenants, terms, conditions and agreements set forth in, this Agreement by any Third Party consultants/contractors working on such Party’s behalf.
11.2. Force Majeure. No Party shall be held liable or responsible to the other Party nor be deemed to be in default under, or in breach of any provision of, this Agreement for failure or delay in fulfilling or performing any obligation of this Agreement when such failure or delay is due to an event of Force Majeure, and without the fault or negligence of the Party so failing or delaying. For purposes of this Agreement, events of Force Majeure are defined as causes beyond the reasonable control of the Party, including acts of God; acts, regulations, or laws of any government; war; civil commotion; destruction of production facilities or materials by fire, flood, earthquake, explosion or storm; labor disturbances; epidemic, failure of public utilities or common carriers, internal or external strikes, social disorders, acts of terrorism, public disasters, floods, fires, default of supplier and sub-contractor, disturbances beyond the reasonable control of the Company and its subcontractors caused by power failure, network providers, Internet general failure, failure or breakdown of telecommunications, and/or any other event or circumstance beyond the control of the Company and its hosting provider (“Force Majeure”).
11.3. Waiver. No Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of a Party to assert a right under this Agreement or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by a Party of any condition or term in any one or more instances shall be construed as a continuing waiver of such condition or term or of another condition or term, nor shall it operate as a discharge of such covenant, agreement or condition or render the same invalid, or impair the right of any of the Parties, their representatives, successors, or permitted assigns to enforce the same in the event of any subsequent breach or breaches by the other Party, its representatives, successors or permitted assigns.
11.4. Severability. If any provision of this Agreement should be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, the provision will remain applicable to the maximum extent permitted by the law and the Company shall replace the invalid provision by a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be literally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
11.5. Entire Agreement. This Agreement sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understanding between the Parties. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this Agreement.
11.6 Headings. Headings used in this Agreement are for convenience only and shall not in any way affect the construction of or be taken into consideration in interpreting this Agreement.
12. Applicable Law and Jurisdiction.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) or with a breach of it, including any dispute and discrepancy about the effect, interpretation, termination, performance, or failure to execute it shall be governed by the laws of Belgium, without regard to conflict of laws provisions; the Licensee and Company agree to submit to exclusive jurisdiction and venue in the competent courts in Brussels of Belgium, for any and all disputes, claims and actions arising from or in connection with this Agreement.
The Company, for and on behalf of itself and its subsidiaries and affiliates under common control or acting on behalf of an authorized reseller by the Company, is willing to license the Product to the Licensee only upon the condition that the Licensee accept all of the terms contained in this Agreement. Please read the Agreement carefully. By selecting the “Accept License Agreement” (or the equivalent) button and/or by using the Product the Licensee acknowledges that he has read the terms and agrees to them. If the Licensee is agreeing to these terms on behalf of a company or other legal entity, the Licensee represents and warrants that he has the legal authority to bind the legal entity of these terms. If the Licensee does not have such authority, or if the Licensee does not wish to be bound by the terms, then he must select the “Decline License Agreement” (or the equivalent) button and he must not use the Product on this site or any other media on which the Software is contained.
1. License to use.
1.1. Subject to the terms and conditions of this Agreement, the Company grants the Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use internally the Product complete and unmodified . The Licensee is authorized to load, execute, and keep the Product on a computer storage device or on a network server under its control and solely for internal use; and to copy the Product solely for the purpose of installing it on the Licensee computers and for backup storage, solely for its internal use in connection with its use of the Product.
1.2. All licenses granted by the Company to the Licensee pursuant to this Agreement will immediately and automatically terminate if (i) at any time the Licensee does not timely comply with any obligation under this Agreement, or (ii) upon termination of this Agreement. In such cases, the Licensee will immediately stop using the Product and promptly remove the Product from all Licensee equipment.
2. Restrictions.
2.1. Without prejudice to the other restrictions applicable under this Agreement or the Applicable Law, the Licensee shall not:
a) Reproduce or copy the Product, except for back-up copies made only for its personal usage and which cannot be provided to any third parties and for copies which are needed for the proper functioning of the Product (e.g. installation copies) ;
b) Use any part of the Product to develop any software or any products or services or create derivative works of the Product;
c) Give the Product away in any way (assign, sublicense, loan, sell, charge, distribute, share, transfer, pledge, lease exchange, donate, rent or other) to any third parties. The Licensee is not allowed to sell, transfer, assign or grant access to his/her licensed copy to a third party or otherwise make the Product or any password, key, or other access code for the Product available to any third party;
d) Make any translation, adaptation, arrangement and any other modification of the Product or make any reproduction, distribution, communication, display, or performance to the public of the results of such acts;
e) Adapt, modify decompile, disassemble, alter, reverse compile, reverse assemble or reverse engineer the Product or otherwise attempt to discover the source code of the whole or any part of the Product, unless and only to the extent that applicable law expressly prohibits this restriction;
f) Replace any part of the Product by the Licensee’s own plug-in or software which would be compatible with other parts of the Product and that would circumvent the licensing fees that should be paid to the Company, such as, for example, a new volumetric player directly or indirectly compatible with the output formats of other parts of the Product;
f) Remove, minimize, block, alter or modify any titles, logos, trademarks, copyright and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the Product;
g) Circumvent the license management software or the watermark removal procedure; defeat or work around any access restrictions or encryption in the Product, unless and only to the extent that applicable law expressly prohibits this restriction;
h) Use any watermarked image for commercial purposes.
i) Not by itself or with others participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to the Company or the Product.
2.2. The Licensee is entitled only to the rights specified in Article 1 of this Agreement. All rights not expressly granted to the Licensee in this Agreement are reserved to the Company.
2.3. This Agreement does not entitle the Licensee to any upgrades or maintenance, technical, or other services for the Product, which the Company does not warrant the availability and which the Licensee may be required to purchase separately as the case may be.
3. Feedback. If the Licensee provide the Company with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by the Licensee for the Product ("Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary the Licensee may include in any accompanying communication), and the Company shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Product or any other hardware, software or services from the Company. The Licensee hereby grant the Company a perpetual, irrevocable, transferable, licensable, sub-licensable, non-exclusive license without license fees under all rights necessary to so incorporate and use Licensee’s Feedback for any purpose, including to make and sell products and services.
4. Reserve of rights.
4.1. Subject to the provisions of this Agreement, the Company or its licensors (as applicable) retain all right, title and interest in and to the Intellectual Property Rights (including but not limited to copyrights, patents and trademarks) related to the Product, including the right to transfer or license such Intellectual Property Rights to third parties for any purpose. In particular, the Company’s and its licensors’ software is copyrighted and title to software and all associated intellectual property rights is retained by the Company or its licensors (as applicable).
4.2. Nothing in this Agreement shall be deemed or implied to be, and the Parties disclaim all implied rights to, the grant by the Company to the Licensee of any license, right, title or interest in the Company’s products, services, Intellectual Property Rights, any technology or know-how, operating procedures, marketing materials or strategies, intangibles, material or proprietary rights or any other tangible or intangible property, except as are expressly set forth in this Agreement. In particular, no rights (including any and all Intellectual Property Rights) of the Company or its licensors are being transferred or assigned to the Licensee under this Agreement.
4.3. The Company or its licensors (as applicable) shall remain the sole owner of all information related to the Product, obtained or developed in the course of performance of this Agreement and the related Intellectual Property Rights. The Company has the right to make any changes, improvements, corrections, updates, upgrades or other modification of the Product it considers appropriate, at any time.
4.4. The license granted under this Agreement is not a sale of the Product and this Agreement does not entitle the Licensee to any rights to patents, copyrights, trademarks, service marks, trade secrets, confidential information or any other rights or license with respect to the Product. The Licensee agrees to hold the Product in confidence and to take reasonable measures to prevent unauthorised copying. The Licensee shall not remove or modify any copyright symbols, trademarks, labels, property notices and technical protection measures on any and all copies of the Product.
4.5. If the Licensee learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity by a third party with respect to any Intellectual Property Rights related to the Product, (an “Infringement”), the Licensee shall promptly notify the Company in writing and shall promptly provide the Company with available evidence of such Infringement. The Company has the right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to Infringement of any Intellectual Property Right related to the Product.
5. Limitation of liability. To the extent permitted by law, the Company will not be liable for indirect, incidental, special, consequential, punitive or exemplary damages (including any loss of revenue, profits, goodwill, use or data) arising in connection with this Agreement or the Product even if the Company has been advised of the possibility of those damages. Further, the Company total aggregate liability and exclusive remedy for any matter arising in connection with this Agreement or the Product shall be, at the Company’s option, limited to attempt to correct or work around errors, to replace the Product or to terminate the Agreement. In no event shall the Company’s liability to the Licensee, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by the Licensee to use the Product . In all cases, the Company will only be liable in case of gross negligence or willful misconduct or any other case which may not be excluded or limited under the Applicable Law
6. Disclaimer.
6.1. The Product is provided on a “as is” and “as available” basis without warranties of any kind neither expressed nor implied. The Licensee’s use of the Product is at the Licensee’s sole risk.
6.2. The Company does not make any representation or warranty of any kind, whether express, implied, statutory or otherwise with respect to the Product. Unless expressly set forth in this Agreement, the Company disclaim to the fullest extent permitted by Applicable Law all warranties with respect to the Product, whether in fact or in law, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any warranties arising out of any course of dealing, performance, or trade usage. The Company shall not be liable to any Licensee and to any third party for any modification, price change, involuntary suspension or discontinuance of the Product or any other item provided or otherwise made accessible to the Licensee under this Agreement.
6.3. In particular, the Company shall not be responsible or liable for any errors, inaccuracies, or service interruptions, power outages or system failures of the Licensee’s or Third Party’s infrastructures in relation with the Product. The Company does not warrant that the Product will meet the Licensee’s requirements or that the operation of the Product will be uninterrupted or error free, or that defects in the Product will be corrected. The Company does not warrant the correctness or accuracy of the results obtained from the use of the Product.
6.4. No advice or information obtained by the Licensee from the Company will create any warranty not expressly stated in this Agreement. The Company shall not be responsible or liable for any direct, indirect, incidental, special, consequential or exemplary compensation, reimbursement, or damages including damage for loss of profits, prospective profits or revenue, anticipated sales, goodwill or other benefits, data, use or any other intangible losses, any investments, expenditures, or commitments by the Licensee (event if the Company has been advised of the possibility of such damage) in connection with this Agreement or the Licensee’s use of or access to the Product, or any termination or suspension of this Agreement or resulting from: (i) the misuse or the inability to use the Product; (ii) the impossibility to use the Product or its non—availability (iii) unauthorized access to or alteration of the Licensee’s transmissions or data.
6.5 Without prejudice to the other provisions of this Agreement, the Licensee acknowledges that the Product is developed for general use in a variety of systems and applications. The Licensee acknowledges that the Product has not been developed to meet the Licensee’s individual requirements and that it is therefore the Licensee’s responsibility to ensure that the facilities and functionality of the Product meet such requirements. The Product is not developed or intended for use in a specific system or application or in any inherently dangerous applications, including applications that may create a risk of personal injury. If the Licensee uses the Product in dangerous applications, then the Licensee shall bear all risks associated with such use. The Company disclaims any express or implied warranty of fitness for such uses.
6.6. The Licensee is solely responsible for acquiring, servicing, maintaining and updating, at its sole expenses, its own equipment (including hardware, computers and appropriate telecommunications services), which will allow the Licensee to access and use the Product. The Licensee shall make sure that its equipment is adaptable to, compatible with and suitable for the use of the Product. Without prejudice to the other limitation of liability included in this Agreement, the Company does not warrant the compatibility of the Product with all types of equipment and the Product is not compatible with all equipment.
7. Indemnification
7.1. The Licensee shall be solely responsible and liable for its use of the Product.
7.2. The Company will have no liability for any use of the Product by the Licensee or for any of the Licensee’s claims or for any claim by Third Parties relating to these matters. The Licensee hereby agree to defend, indemnify, hold harmless and release the Company, the Company’s Affiliates, licensors and partners, and their respective owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, from and against all claims, damages (whether direct, indirect, incidental, consequential, punitive, exemplary or otherwise) losses, liabilities, costs, and expenses (including attorneys' fees) of every kind and nature, known and unknown, arising in connection with or in any way connected with (i) any use or misuse that the Licensee make of the Product (ii) the Licensee’s violation of any term or condition of this Agreement or the Applicable Law; (iii) any act or omission by the Licensee, or the Licensee’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, which constitutes recklessness, gross negligence, or willful misconduct on the part of the Licensee, or the Licensee’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives.
8. Termination
8.1. This Agreement is effective until terminated. The Licensee may terminate this Agreement at any time by permanently and completely destroying all copies of the Product. This Agreement will terminate immediately without notice and without compensation from the Company if the Licensee fails to comply with any provision of this Agreement. The Company may terminate this Agreement at any time, for any reason, without notice and without compensation by notifying the Licensee. Either party may terminate this Agreement immediately, without notice and without compensation, should any part of the Product become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon termination, for whatever reason, the Licensee must immediately stop using the Product and permanently destroy all copies of the Product under its control. In case of termination of this Agreement, the Company shall not refund any pre-paid fees paid by the Licensee prior to the termination date, even though the services have not been performed as a result thereof.
9. Assignment.
This Agreement shall not be assignable by the Licensee to any Third Party hereto without the written prior consent of the Company. The Company may assign this Agreement, without the written prior consent of the Licensee to any Third Party or an entity that acquires all or substantially all of the business or assets of the Company to which this Agreement pertains (whether by merger, reorganization, acquisition, sale or otherwise), and agrees in writing to be bound by the terms and conditions of this Agreement. Any attempt by the Licensee to assign, sublicense or transfer this Agreement or the rights and obligations under this Agreement shall be null and void. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
10. Amendments.
Unless otherwise provided for into this Agreement, the Agreement shall not be amended, altered or changed except by written agreement duly signed by both Parties. This Agreement may be amended at any moment by the Company.
11. Miscellaneous.
11.1. Performance Warranty. Each Party hereby acknowledges and agrees that it shall be responsible for, and irrevocably, absolutely and unconditionally guarantees, the full and timely performance as and when due under, and observance of all the covenants, terms, conditions and agreements set forth in, this Agreement by any Third Party consultants/contractors working on such Party’s behalf.
11.2. Force Majeure. No Party shall be held liable or responsible to the other Party nor be deemed to be in default under, or in breach of any provision of, this Agreement for failure or delay in fulfilling or performing any obligation of this Agreement when such failure or delay is due to an event of Force Majeure, and without the fault or negligence of the Party so failing or delaying. For purposes of this Agreement, events of Force Majeure are defined as causes beyond the reasonable control of the Party, including acts of God; acts, regulations, or laws of any government; war; civil commotion; destruction of production facilities or materials by fire, flood, earthquake, explosion or storm; labor disturbances; epidemic, failure of public utilities or common carriers, internal or external strikes, social disorders, acts of terrorism, public disasters, floods, fires, default of supplier and sub-contractor, disturbances beyond the reasonable control of the Company and its subcontractors caused by power failure, network providers, Internet general failure, failure or breakdown of telecommunications, and/or any other event or circumstance beyond the control of the Company and its hosting provider (“Force Majeure”).
11.3. Waiver. No Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of a Party to assert a right under this Agreement or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by a Party of any condition or term in any one or more instances shall be construed as a continuing waiver of such condition or term or of another condition or term, nor shall it operate as a discharge of such covenant, agreement or condition or render the same invalid, or impair the right of any of the Parties, their representatives, successors, or permitted assigns to enforce the same in the event of any subsequent breach or breaches by the other Party, its representatives, successors or permitted assigns.
11.4. Severability. If any provision of this Agreement should be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, the provision will remain applicable to the maximum extent permitted by the law and the Company shall replace the invalid provision by a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be literally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
11.5. Entire Agreement. This Agreement sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understanding between the Parties. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this Agreement.
11.6 Headings. Headings used in this Agreement are for convenience only and shall not in any way affect the construction of or be taken into consideration in interpreting this Agreement.
12. Applicable Law and Jurisdiction.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) or with a breach of it, including any dispute and discrepancy about the effect, interpretation, termination, performance, or failure to execute it shall be governed by the laws of Belgium, without regard to conflict of laws provisions; the Licensee and Company agree to submit to exclusive jurisdiction and venue in the competent courts in Brussels of Belgium, for any and all disputes, claims and actions arising from or in connection with this Agreement.