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This EULA. This End-User License Agreement (“EULA”) governs your use of the PortalTalk software from QS solutions.
Acceptance of terms. When you access or use PortalTalk or authorize or permit any user, including a third-party to access or use PortalTalk on your computer network, whether locally or remotely, the terms of this EULA apply.
Company customers. If you are entering into this EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this EULA and may not use the PortalTalk software.
“PortalTalk” means Our software products and services that are made available to you, as install or online, including when they are made available to you or used as part of services provided to you by one of our partners.
“User” means an individual who is authorized by You to use PortalTalk and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for PortalTalk utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents.
“We,” “Us” or “Our” means QS solutions B.V., a Netherlands limited liability company. Our registered office is Modemweg 38, 3821BS Amersfoort (The Netherlands). Our company number is 32105264.
“You” or “Your” means the company or other legal entity for which you are accepting this EULA, and affiliates of that company or entity which have signed order forms.
“Your Systems” means electronic data and information stored on your information technology infrastructure, including your computer network and any associated configuration files.
ACCESS AND SUPPORT, COPYRIGHT AND OWNERSHIP
Your Access to PortalTalk. Subject to compliance by You and Your Users with this EULA, You have the limited right to access and use PortalTalk for Your internal business purposes on Your Systems.
Support, by partner or by Us. If you purchase PortalTalk from one of Our partners, that partner will on-board PortalTalk for You on the basis of an agreement between You and that partner. The partner will also provide You with any user and technical support for PortalTalk that you agreed to. If you purchase PortalTalk from a partner, We will not install or operate PortalTalk for You, and We will not provide user and technical support directly to You; although such support is available from Us direct against a fee. If you purchase PortalTalk directly from Us, we will install and/or run PortalTalk for You, and provide You with user and technical support
Office 365 required. PortalTalk requires an Office 365 tenant to run. Where needed, We or Our partner will activate Office 365. You are responsible for purchasing any licenses that may be required and/or deactivating Office 365 licenses if no longer using PortalTalk.
Your Responsibilities. You will (a) be responsible and liable for Users’ compliance with this EULA, which includes using the PortalTalk software only on Your Systems, (b) be responsible for any back-up, restore and contingency measures in connection with the use of the PortalTalk software on Your Systems, (c) use commercially reasonable efforts to prevent unauthorized access to or use of PortalTalk, which includes keeping installation links, installation files, and any account and API credentials safe, and notify Us promptly of any such unauthorized access or use, and (d) use PortalTalk only in accordance with this EULA and applicable laws and government regulations, including export control laws.
Limited License. You will not (a) make PortalTalk available to, or use PortalTalk for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an order form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease PortalTalk, or include PortalTalk or any part thereof in a service bureau or outsourcing offering, (c) use PortalTalk to store or transmit code, files, scripts, agents or programs intended to do harm, (d) interfere with or disrupt the integrity or performance of PortalTalk, or any third-party software or third-party data contained therein, (e) attempt to gain unauthorized access to PortalTalk, or any third-party software or its related systems or networks, (f) permit direct or indirect access to or use of PortalTalk, or any third-party software in a way that circumvents a contractual usage limit, or use PortalTalk to access or use any of Our intellectual property except as permitted under this EULA, (g) copy PortalTalk or any part, feature, function or user interface thereof, (h) access PortalTalk in order to build a competitive product or service or to benchmark with a non-QS solutions product or service, or (i) reverse engineer, decompile, disassemble or translate the PortalTalk software or to make any attempt to access the source code in order to create derivative products of the PortalTalk software, other than as permitted by law. This EULA grants You an authorization to access and use PortalTalk on a limited time basis. As a result this is not a license for the permanent use of PortalTalk; accordingly, the foregoing restrictions are absolute and not subject to the mandatory legal exceptions set out in Your local copyright law or other applicable copyright law that deal with the rights of licensees to make back-up copies, observe the working of licensed software, or decompile licensed software for interoperability reasons.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the PortalTalk software and the accompanying documentation, including all of Our related intellectual property rights, including copyrights, patents, trademarks and know-how, including latent registration rights thereof. No rights are granted to You hereunder other than as expressly set forth herein.
Keep Notices. You are not permitted to remove or change any copyright notices or trademark designations from Our materials (which includes the PortalTalk software and the accompanying documentation), including statements regarding the confidential nature of Our materials and the confidentiality obligations regarding it.
CONFIDENTIALITY
The PortalTalk software and its documentation includes Our confidential information that is secret and valuable to Us and Our licensors. You (a) are not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this EULA, (b) will limit access to Our confidential information to those of Your employees and contractors who need that access for purposes consistent with this EULA and who are under confidentiality obligations containing protections not materially less protective of Our confidential Information than those herein, and (c) will use the same degree of care that You use to protect the confidentiality of Your own confidential information of like kind (but not less than reasonable care) to protect. Our confidential information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Us, (ii) was known to You prior to its disclosure by Us without breach of any obligation owed to Us, (iii) is received from a third party without breach of any obligation owed to Us, or (iv) was independently developed by You.
WARRANTY AND LIMITATION OF LIABILITY
Our Warranties. We warrant that (a) the PortalTalk software will perform materially in accordance with the applicable documentation, and (b) We will not materially decrease the overall functionality of the PortalTalk software without due notice. For any breach of a warranty above, Your sole and exclusive remedies is a refund of any fees paid for the use of and support for PortalTalk to either our partner that provided you with access to PortalTalk or to Us in case you purchased PortalTalk direct from Us. While We will perform Our obligations under the EULA in a professional and workmanlike manner, we cannot however guarantee that PortalTalk will be available at all times, without interruption or errors, or that all errors will be solved, although we endeavor to solve most errors.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Limitation of Liability. In no event shall the total aggregate liability of either party arising out of or related to this EULA exceed the lower of (a) EUR 10,000 or (b) the total amount paid by You and Your Affiliates hereunder for the PortalTalk software giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. This limitation applies in all cases, including when you claim on the basis of our agreement with you, tort (including negligence), breach of statutory duty, restitution or otherwise and regardless of the theory of liability.
Exclusion of Consequential and Related Damages. In no event will either party have any liability arising out of or related to this EULA for any lost profits, data, expected savings, revenues, goodwill (in each case whether direct or indirect), nor for any other indirect, special or incidental, consequential loss, costs or damages, whether an action is in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, and regardless of the theory of liability, even if a party has been advised of the possibility of such damages or if a party’s remedy otherwise fails of its essential purpose.
No Limitation in Certain Cases. Nothing in this EULA excludes or limits a party’s liability for (a) death or personal injury, (b) intent or gross negligence, or (c) any other liability which may not be properly limited or excluded by applicable law.
Exclusions. You assume sole responsibility for results obtained from the use of the PortalTalk software by You and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the PortalTalk software or any actions taken by Us at Your direction.
GOVERNING LAW AND ARBITRATION
Dutch law governs this EULA, with the exclusion of its conflict of laws rules. All disputes arising in connection with this EULA or further contracts resulting from it will be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). The place of arbitration will be The Hague, the Netherlands and the arbitral procedure will be conducted in the English language, in writing, with one arbitrator and with the arbitral tribunal deciding in accordance with the rules of law. Notwithstanding this clause, We may bring proceedings in the courts of any state or territory which has jurisdiction for reasons other than the parties’ choice for the purpose of seeking an interim injunction, order or other non-monetary relief to protect Our intellectual property rights.
If you are a resident of Quebec Province (Canada):
The parties have expressly requested that this contract be written in English.
Les parties ont expressément exigé que ce contrat soit rédigé en anglais.
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