EXHIBIT A – TERMS AND CONDITIONS
- Scope of License Permitted Uses and Restrictions. Capitalized terms used herein shall have the meaning set forth herein, including Section 10 (Definitions). BKEEN hereby grants Client a non-exclusive, non-transferable, limited object code license to use the Permitted Instances of Swinguru Products and Documentation during the License Term (License“). No right to use, copy, duplicate or display the Swinguru Products is granted, except as expressly provided herein.
Client shall at all times comply with any and all Documentation containing programming procedures, guidelines and recommendations relating to the use of the Swinguru Products and any modification thereof notified to Client by BKEEN.
Client shall never, and shall never allow any third party to: (i) download, copy, reverse engineer, reverse assemble or otherwise attempt to discover the source code of all or any portion of the Swinguru Products, save that Client is authorized to make copies corresponding to the number of Permitted Instances plus one (1) back-up copy; (ii) reproduce, modify, translate, or create derivative works of any portion of the Swinguru Products; (iii) sublicense, distribute, transfer, or allow a third party to use the Swinguru Products without the prior written consent of BKEEN; or (iv) disassemble or tamper with any hardware delivered together with the Swinguru Products.
The Swinguru Products may contain or be accompanied by certain third party products or programs that are provided to Client under terms and conditions that are different from this Agreement, or which require BKEEN to provide Client with a separate license agreement, certain notices and/or other related information. Client’s use of a third party product or program for which BKEEN may have identified a separate license agreement, notices or other related information will be subject to the terms and conditions contained therein. This Agreement shall not apply to such third party products or programs.
Swinguru Products shall be delivered physically from FOB Brussels Belgium. Products updates shall occur upon e-mail of download information to Client at the e-mail address of Client specified in BKEEN’s invoice to Client.
- Maintenance Services. During the term of this Agreement BKEEN will provide Client with the maintenance services under the terms set forth in Exhibit B – Maintenance Services.
- Fees and Payment Terms. In consideration for the License and the maintenance services, Client shall pay to BKEEN the fees specified in BKEEN’s invoice to Client. Unless otherwise specified, all fees are expressed in dollars (USD) and exclude applicable taxes. Client shall pay all invoiced amounts upon receipt of BKEEN’s invoice. If Client fails to pay any amounts to BKEEN by the due date, such amounts shall automatically (without any summons or notice being required) bear interest of the rate of ten (10) per cent per year, pro rata temporis from the date that payment is due until the date of effective receipt by BKEEN of the full payment, without prejudice to any other rights or remedies under this Agreement or applicable law.
Client agrees to pay all sales, use, value-added, withholding, excise and any and all other similar taxes or government charges, exclusive of BKEEN’s income taxes.
BKEEN may terminate this Agreement if Client fails to pay any fees due within fifteen days after written notice of such non-payment. Except as set forth in Sections 4 and 6 (“Limited Warranties” and “Indemnification”), all fees paid under or in connection with this Agreement are non-refundable and no right of set-off exists.
- Limited Warranties. BKEEN warrants that: (a) for ninety (90) days following initial delivery of the Swinguru Products to Client, the unmodified Swinguru Products, under normal use on the Platform for which it is intended, will perform all material functions described in its Documentation, and (b) that BKEEN has the right to grant the licenses and other rights set forth herein. If a breach of the warranty set forth in Section 4.(a) is reported to BKEEN during the ninety-day period therein referred, BKEEN shall, at its option, repair or replace the Swinguru Products or provide Client a full refund. In the event of a refund, this Agreement shall terminate. In the event a refund is provided for a subsequent license purchase of other Swinguru Products, this Agreement will only terminate with regard to those subsequent licensed copies. NO BKEEN’S AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THESE LIMITED WARRANTIES.
EXCEPT AS PROVIDED ABOVE, THE SWINGURU PRODUCTS ARE PROVIDED “AS IS”, AND ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INFORMED OF SUCH PURPOSE), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE THAT THE PRODUCT’S FUNCTIONALITY WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE OPERATION OF THE SWINGURU PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.
BKEEN’s warranty for products, equipment or programs purchased by BKEEN from a third-party manufacturer or its distributors and sold to Client individually or as part of Swinguru Products in the framework of this Agreement shall be limited to those warranties, if any, offered by the manufacturer of such products, equipment or programs on a pass-through basis to Client. BKEEN does not assume any warranty liability for any third-party products, equipment (including hardware) or programs (including software).
- Limitation of Liability. EXCEPT FOR INFRINGEMENT OF ANY PATENT OR COPYRIGHT OF A THIRD PARTY (“IPR INFRINGEMENT“), IN NO EVENT WILL BKEEN BE LIABLE FOR ANY LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE OF DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN CASE OF IPR INFRINGEMENT, BKEEN’S TOTAL LIABILITY TO CLIENT SHALL IN NO EVENT EXCEED THE AMOUNT OF THE FEES EFFECTIVELY RECEIVED FROM CLIENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
BKEEN shall resolve claims related to Section 4.(b) in the manner provided in Section 6 “Indemnification”. The foregoing shall be Client’s sole and exclusive remedies and the entire liability of BKEEN for any breach of the limited warranties provided under Section 4 “Limited Warranties”.
- Indemnification. Without prejudice to Sections 4 and 5 (“Limited Warranties” and “Limitation of Liability”), BKEEN shall indemnify Client from and against any final judgment by a court of competent jurisdiction, that the unmodified Swinguru Products used in accordance with BKEEN’s instructions and recommendations and the Documentation infringe any patent or copyright of a third party; provided that BKEEN is promptly notified in writing of such claim, BKEEN has the exclusive right to control such defense and/or settlement, and Client shall provide reasonable assistance (at BKEEN’s expense) in the defense thereof. In no event shall Client settle any claim, action or proceeding without BKEEN’s prior written approval. In the event of any such claim, litigation or threat thereof, BKEEN, at its sole option and expense, shall (a) procure for Client the right to continue to use the Swinguru Products, (b) replace or modify the Swinguru Products with a functionally equivalent solution, or (c) terminate this Agreement immediately without any penalty. This Section 6 states the entire liability of BKEEN with respect to IPR Infringements, and Client hereby expressly waives any other liabilities or obligations of BKEEN with respect thereto.
- Export. The Swinguru Products, Documentation and related technical data may be subject to export or import regulations. Client hereby undertakes towards BKEEN that it shall strictly comply with all such regulations and agrees to obtain all necessary licenses to export, re-export or import the Swinguru Products.
- Ownership and Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means patent, copyright, rights in software, database rights, trademark and trade secret laws, applications for registration, and the right to apply for registration, for any of the above rights and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world. The Swinguru Products and Documentation are proprietary to BKEEN and protected by applicable Intellectual Property Rights. BKEEN shall retain title to the Swinguru Products and Documentation and all Intellectual Property Rights (and any other rights) embodied therein. All proprietary notices incorporated in or affixed to any Swinguru Products or Documentation shall be duplicated by Client on all authorized copies of the Swinguru Products or Documentation, as applicable, and shall not be altered, removed or obliterated.
All Intellectual Property Rights held or belonging to BKEEN, including but not limited to Intellectual Property Rights in Swinguru Products, future development based upon or in relation to Swinguru Products and derivative works thereof (“Derivative Works”) and all engines, software development tools, utilities, subroutines, scripting languages and methodologies independently developed by BKEEN in the context of this Agreement (“Background Materials”) shall belong exclusively and remain with BKEEN, as from the date of their coming into existence.
- Term of the Agreement – Early Termination of the Agreement. This Agreement shall expire on the last day at midnight (time in Brussels, Belgium) of the License Term. Either Party may terminate this Agreement earlier if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of the same; or (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors. Upon the effective date of expiration or early termination of this Agreement: (a) Client will immediately cease all use and destroy all software copies of the Swinguru Products in its possession and return all Swinguru Products and Documentation within thirty (30) days of the effective date of termination of this Agreement to the BKEEN’ address specified on the BKEEN’s invoice to Client; and (b) within thirty (30) days of the effective date of such termination, each Party will return all Confidential Information of the other Party in its possession and neither Party will make or retain copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Sections 3 through 11 shall survive the expiration or early termination of this Agreement.
- Definitions. “Documentation” means any text material that is customarily delivered by BKEEN to the Clients of the Swinguru Products; “Permitted Instance” means the cumulative number of copies of Swinguru Products running on one or more designated Platforms, as set forth on the invoice; “Agreement” means the invoice from BKEEN to Client together with these Exhibit A – Terms and Conditions and Exhibit B – Maintenance Services; “Platform” means the operating system or environment identified in the invoice from BKEEN to Client; “Services” means any services performed by BKEEN in connection with this Agreement, including, without limitation, Maintenance Services; “Swinguru Products” means the most current generally available object code version (as of the date of the invoice from BKEEN to Client) of the software products identified in such invoice, including its Documentation, and a 3D sensor; and “License Term” means the time period during which the License is granted by BKEEN to Client, as specified in the invoice from BKEEN to Client.
- Miscellaneous. Entire Agreement – Amendments. This Agreement contains the entire agreement of the Parties hereto with regard to the object to which it refers and contains everything the Parties have negotiated and agreed upon within the framework of this Agreement. It replaces and annuls any agreement, communication, offer, proposal, or correspondence, oral or written, previously exchanged or concluded between the Parties and referring to the same object. No amendment or modification of this Agreement shall take effect unless it is in writing and is executed by duly authorized representatives of the Parties. Nature of relationship between the Parties – Independent Contractors. None of the provisions of this Agreement can be interpreted as indicating consent by the Parties to form a partnership, joint venture or other association between the parties, nor shall one Party be considered the agent or employee of the other. Each Party acknowledges that it has not been, is not and shall not be entitled to legally represent or bind the other Party, such as, for instance, by entering into agreements or understandings or by accepting or assuming other rights and obligations on behalf of the other Party. Notices. Any notice with reference to this Agreement shall be validly made with respect to each of the Parties when a registered letter is sent by mail or by delivery with acknowledgment of receipt to the addresses set forth in the invoice of BKEEN to Client or to any other address subsequently notified. Any change of address must be notified by registered letter, the new address being considered the official address for purposes of this Agreement from the third business day following the sending of such notice letter. Assignment. Client is prohibited from transferring all or part of its rights and obligations arising under this Agreement to a third party without the prior, express, written consent of BKEEN. Subject to any restrictions on assignment herein contained, the provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assigns. Subcontractors. BKEEN shall be entitled to use independent consultants for the Services to be provided but shall remain responsible for the performance of such Services. Waiver. Any failure or delay by either Party in exercising any right under this Agreement, in whole or in part, or any reaction or absence of reaction by either Party in the event of violation by the other Party of one or more provisions of this Agreement shall not operate or be interpreted as a waiver (whether express or implied, in whole or in part) of any of its rights under this Agreement or under said provision(s), nor shall it preclude the further exercise of any such rights. Any waiver of a right must be express and in writing. Severability. If one or more of the provisions of this Agreement is declared to be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected. In the case whereby such invalid, illegal or unenforceable clause affects the entire nature of this Agreement, each of the Parties shall use its best efforts to immediately and in good faith negotiate a legally valid replacement provision. If no agreement on such provision has been reached within a period of thirty (30) days, each of the Parties shall have the right to terminate the Agreement upon thirty (30) days advance written notice. Force majeure. Neither Party shall be liable for a delay or failure to fulfill its obligations under this Agreement arising from any cause beyond its reasonable control or arising from strikes, lockouts, work stoppages or other collective labor disputes, death or incapacity of persons fulfilling necessary tasks on the behalf of one of the Parties. Audit. Client hereby grants BKEEN and its independent auditors the right to audit Client’s compliance with this Agreement upon reasonable notice and at reasonable times. Applicable law and dispute resolution. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with Belgian law, and no effect shall be given to any other choice of law or any conflict-of-laws rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable. Any dispute concerning the validity, interpretation, enforcement, performance or termination of this Agreement or otherwise arising out of or in relation with this Agreement shall be submitted to the exclusive jurisdiction of the French-speaking chambers of the commercial court of Brussels.
EXHIBIT B – MAINTENANCE SERVICES
- Maintenance. During the License Term (as defined in Article 1 of the Terms and Conditions set forth in Exhibit A), Client may notify BKEEN of an error, defect, or malfunction (an “Error”) in the Swinguru Products. BKEEN will use commercially reasonable efforts to resolve the Error according to problem severity. “Severity 1” is an emergency production situation where the Swinguru Products are totally inoperable or fail catastrophically and there is no workaround; “Severity 2” is a detrimental situation (and there is no workaround) where (a) performance degrades substantially under reasonable loads causing a severe impact on use, (b) the Swinguru Products are usable but materially incomplete; or (c) one or more mainline functions or commands is inoperable; “Severity 3” is where the Swinguru Products are usable, but does not provide a function in the most convenient manner; and “Severity 4” is a minor problem or documentation error. “Error Correction” means either (a) a bug fix, patch or other modification or addition that, when made or added to the Swinguru Products, corrects an Error, or (b) a procedure or routine that, when observed in the regular operation of the Swinguru Products, eliminates the practical adverse effect of an Error on Client.
- Error Reporting. BKEEN will be available to receive Error reports during the Services Hours defined below. Each Error experienced by Client related to Client’s use of the Swinguru Products will be reported by Client via electronic mail at firstname.lastname@example.org. Each such Error report will be accompanied or followed by sufficient information to enable BKEEN to reproduce and verify the Error. BKEEN will acknowledge each such reported Error via telephone, facsimile transmission, or electronic mail and will use commercially reasonable efforts consistent with the severity of the Error to reproduce and verify reported Errors and provide Error Corrections therefore, in accordance with the initial response times and other terms set forth herein.
- Error Correction.
3.1 Severity 1 Error. BKEEN will use commercially reasonable efforts to commence work on verification of the Error within eight (8) hours of receiving Client’s report of the Error. Upon verification, BKEEN will use commercially reasonable efforts to resolve the Error with an Error Correction within three (3) day. BKEEN will provide Client with periodic reports (at mutually agreed times) on the status of the Error Correction.
3.2 Severity 2 Error. BKEEN will use commercially reasonable efforts to commence work on verification the Error within one (1) business day of receiving Client’s report of the Error. Upon verification, BKEEN will use commercially reasonable efforts to resolve the Error with an Error Correction within five (5) business days. BKEEN will provide Client with periodic reports (at mutually agreed times) on the status of the Error Correction.
3.3 Severity 3 Error. BKEEN will use commercially reasonable efforts to commence work on verification of the Error within five (5) business days of receiving Client’s report of the Error. Upon verification, BKEEN will use commercially reasonable efforts to include an Error Correction in a subsequent Update of the Swinguru Products. BKEEN will provide Client with periodic reports on the status of the Error Correction.
3.4 Severity 4 Error. BKEEN will consider the request for inclusion of an Error Correction in a subsequent Update of the Swinguru Products.
Service Hours: 9 am to 5 pm CET, Monday to Friday, excluding Belgium Holidays.
- Updates. Maintenance services includes the right to use Updates as replacements for existing copies, subject to the terms and conditions of this Agreement. “Updates” means Swinguru Products bug fixes, enhancements, and updates, if and when made generally available by BKEEN. Updates are subject to the same terms and conditions of this Agreement as are applied to Swinguru Products. BKEEN will provide maintenance services for a prior release of the Swinguru Products for at least three months after a new release, after which BKEEN may discontinue Maintenance for that prior version. Client agrees to fully test Updates in a non-production environment prior to implementation.
- 5. Term and Early The initial term for the provision of maintenance services shall correspond to the License Term (as defined in Article 1 of Exhibit A – Terms and Conditions), unless the Agreement is terminated earlier in accordance with Article 9 of Exhibit A – Terms and Conditions, in which case the term for the provision of maintenance services shall end on the same termination date. The provision of maintenance services shall then be renewed only if and to the extent the License (as defined in Article 1 of Exhibit A – Terms and Conditions) has been validly renewed and paid for (and, for the avoidance of doubt, the renewal term for the provision of Maintenance shall correspond to the renewal term of the License).
- Fees. Fees for the maintenance services are included in the fees paid pursuant to Article 3 of the Terms and Conditions set forth in Exhibit A, as specified in the invoice of BKEEN to Client.