Quamotion License Agreement

Definitions

For the purposes of this License Agreement, the following terms shall have the following meaning, in singular as well as in plural:

  1. Quamotion: the private company with limited liability incorporated under the laws of Belgium, with its registered office at 3500 Hasselt (Belgium), Hendrik van Veldekesingel 150 / 106, registered with the RPR/RPM in Antwerpen under number 0598.759.917 and known to the VAT-administration under number BE 0598.759.917, judicial district Hasselt.
  2. Quamotion Website: the website with url http://quamotion.mobi/
  3. Customer: any natural person or legal entity that demands a price request regarding, places an order regarding, buys and/or uses a Product, as well as everyone who demands a price request regarding, places an order regarding, buys and/or uses a Product in the name or on behalf of any other natural person and/or legal entity.
  4. Parties: Quamotion and the Customer.
  5. License Agreement: the present license agreement, which is referred to in the general terms and conditions of Quamotion as the end user license agreement (EULA).
  6. Purchase Agreement: the agreement for the sale and purchase of specific Products, as concluded between the Customer and Quamotion, in accordance with Quamotion’s general terms and conditions, as published on the Quamotion Website.
  7. Products: the packages of Software licenses and services provided by Quamotion, as presented detailed in the Quamotion Product Description, which are sold by Quamotion.
  8. Software: the computer programs which are developed and owned by Quamotion, for which the Customer purchased a License through the Purchase Agreement.
  9. License: the rights defined in article 3 of this Agreement.
  10. User: any natural person or legal entity that has been authorised by the Customer to use the Software under the responsibility of the Customer and/or in his name and/or on his behalf.
  11. Identity: the unique digital identity, provided to the Customer by Quamotion by means of which the Customer can access the Software.
  12. Intellectual Property Rights shall mean all the possible intellectual industrial and other property rights (either registered or not), including – without being limited hereto – copyrights, related rights, trademarks, trade names, logo’s, design rights or applications for design registration, patents, patent applications, domain names, knowhow and rights regarding databases, computer programs and semiconductors.

Scope of Application

  1. By concluding the Purchase Agreement, using the Products or Software, requesting and/or accepting an Identity, every Customer and/or User agrees to comply with the present License Agreement.
  2. Whenever a User uses the Software, this implies that he and/or the Customer he represents agree with this License Agreement, endorse it explicitly without any reservation or condition and are bound by its terms.
  3. This License Agreement does not prejudice the rights that are legally granted to the Customer in a mandatory manner in accordance with the applicable national regulations regarding consumer protection.
  4. Quamotion reserves the right to amend and/or adjust this License Agreement at any time whatsoever.
  5. Whenever the License Agreement is renewed in conformity with article 7.2, and/or whenever the Customer and/or User downloads a new version of the Software, the most recent version of this License Agreement shall apply.

License and Intellectual Property

  1. The Software and all elements they contain are and remain property of Quamotion and/or her licensors and are protected by the Intellectual Property Rights of Quamotion and her licensors.
  2. Quamotion and/or her licensors shall be the sole and exclusive owner of all the Intellectual Property Rights regarding all new developments, improvements and information related to or in the field of the intellectual property of the Software.
  3. Quamotion hereby grants the Customer as of the conclusion of the Purchase Agreement, and in accordance therewith, a non-exclusive and revocable license to use the intellectual property of the Software to test the mobile applications he has developed, including – without being limited thereto – use for test automation, manual testing and exploratory testing of such mobile applications, and only as authorized below (hereinafter referred to as the License).
  4. Quamotion may – without being obliged thereto – provide the Customer with updates and upgrades, in the form of new versions of the Software. Quamotion reserves the right to cease the support of other versions than the most recent version of the Software that was made available to the Customer, and this, without prior notice and without recovery of charges from Quamotion.
  5. Nothing herein is intended or shall be deemed or implied to constitute a sale or assignment of the intellectual property of the Software by Quamotion.

Users and Identity

  1. The Customer shall, in accordance with the Purchase Agreement, receive one Identity which may be used for one or more devices depending on the purchased Product.
  2. The Customer may appoint one or more Users to use the rights from the License in his name and on his behalf. The Customer may therefore provide the Identity to his User(s).
  3. All information relating to the Identities is confidential. The Customer shall take all reasonable measures to prevent unauthorised parties from obtaining information relating to the Identities provided to the Customer and/or User.
  4. The Customer guarantees that all Users will strictly comply with all provisions of this License Agreement.
  5. The Customer is solely and exclusively responsible for managing the Users and Identity and shall take – without any delay – all reasonable measures to prevent a User who is no longer authorised to use the Software and/or intellectual property of the Software (e.g. in the event such User is no longer employed by the Customer) from using that Software and/or intellectual property.

Obligations of the Customer And User(s)

  1. The Customer and Users undertake to use the Software and/or intellectual property of the Software for legal purposes only.
  2. The Customer and Users undertake to respect all Intellectual Property Rights regarding the Software and all elements they contain.
  3. The Customer and Users are explicitly prohibited: a. to duplicate, copy, display, send, publish and/or sell, in any form whatsoever, the intellectual property of the Software, without Quamotion’s prior written consent; b. to allow access to the Software and/or to the intellectual property of the Software to any unauthorised parties, irrespective of whether such access is provided with or without any direct or indirect consideration; c. to use the intellectual property of the Software for illegal purposes; d. to use the intellectual property of the Software in any manner that might prejudice Quamotion’s, its licensors’ and/or any other party’s rights; e. to use any errors in the Software and/or in the intellectual property of the Software – whether or not such errors are known to Quamotion and/or its licensors’ – to its own advantage or to the advantage of any third parties.
  4. In the event the Customer and/or User(s) detect a (potential) error or misstatement in the Software and/or in the intellectual property of the Software, he/they shall immediately inform Quamotion thereof.
  5. The Customer and User(s) undertake to take all reasonable measures to prevent any infringement of Quamotion’s and her licensors’ Intellectual Property Rights.
  6. In the event the Customer and/or User(s) detect a potential infringement of Quamotion’s and/or her licensors’ Intellectual Property Rights, he/they shall immediately inform Quamotion thereof.

Transfer, Assignment and Sublicenses

  1. The Customer is not entitled to assign, pledge or otherwise dispose of its rights or obligations under this License Agreement to a third party without the prior written consent of Quamotion.
  2. Quamotion is entitled to assign, pledge or otherwise dispose of its rights or obligations under this License Agreement to a third party, also in the case it transfers its entire business (or any part thereof) to a third party.
  3. The Customer is not authorised to provide sub-licenses.

Duration

  1. The License granted in article 3 of this License Agreement shall remain in effect as determined for that specific Product in the Purchase Agreement.
  2. In the event the Customer and Quamotion agreed that the purchase of a specific Product shall be automatically renewed, the License for the Software concerned will be renewed accordingly, in conformity with article 2.6.

Termination

Notwithstanding article 7 of the present License Agreement, Quamotion shall have the right at any time during the duration of this License Agreement, to terminate it forthwith by sending a written notice to this effect to the Customer by registered mail, specifying the reasons for the termination, in the following events:

  1. if the Customer and/or his User(s) breach any of their obligations under this License Agreement notwithstanding a written request from Quamotion to refrain from such a breach, and, if possible, to prevent such a breach or breaches from occurring in the future and to rectify the situation, and the Customer fails to comply with such a request within a period of thirty (30) days after receipt of that request;
  2. if Quamotion detects a material breach of the License Agreement, such as among others – and without being limited thereto – breach of the Customer’s obligations under articles 4.2, 5.3, 6, 9 and/or 13.
  3. in the event of any change to the situation of the Customer, such as decease, conversion, merger, takeover, transfer, liquidation, suspension of payments, collective composition or out of court settlement, application for postponement of payment, closing down activities, seizure or any other circumstance that could harm confidence in the Customer’s creditworthiness.

Validity of the Intellectual Property Rights

  1. The Customer hereby recognises the validity of the Intellectual Property Rights regarding the Software and shall refrain for the duration of this License Agreement from denying, challenging or attacking such validity and from assisting any other party in denying, challenging or attacking such validity by furnishing information or advice or otherwise.
  2. In case any third party denies, challenges or attacks the validity of any Intellectual Property Rights regarding the Software, the Customer shall inform Quamotion without any delay.

Liability

  1. Quamotion is not responsible for the content and/or use of the Software and/or the intellectual property of the Software by the Customer and/or User(s).
  2. The Customer and/or User(s) shall at all times use the Software and/or intellectual property of the Software at their own risk and responsibility.
  3. The Software is provided to the Customer “as is”, without any explicit or implicit guarantees of any nature, express or implied, including – without being limited thereto – the warranties of accuracy, correctness, reliability, recency, fitness for a particular purpose, title and non-infringement or result of use.
  4. The Customer is solely and exclusively responsible for obtaining, configuring and maintaining all computer hardware, software, and other equipment and services necessary for the use of the Software by the Customer and/or User(s).
  5. Quamotion’s liability is limited to the responsibility imperatively imposed on it by the applicable law and is under all circumstances limited to the lowest of the following amounts: (1) the amount invoiced by Quamotion for the Software over the last 6 months; and (2) the amount Quamotion can recover under the insurance policies taken out by Quamotion.
  6. Quamotion will under no circumstances be held liable for any indirect damages (including – without being limited thereto – loss of profits), damages caused by the Customer, User(s) and/or third parties, damages resulting from incorrect or inadequate use of the Software and/or damages resulting from non-compliance by the Customer and/or User(s) with statutory and/or other obligations.
  7. Quamotion will under no circumstances be held liable for any damages resulting from the Customer’s and/or Users’ failure to comply with their obligations under the Purchase Agreement, this License Agreement, and among others – without being limited thereto – to retrieve and verify all required and useful information, nor for any damages resulting from incorrect and/or incomplete information that was provided to the Customer and/or User(s) by Quamotion and/or any third party.
  8. Quamotion will not be liable for any loss or damages suffered by the Customer, Users and/or any third party as a result of any failure or refusal by Quamotion and/or its licensors to give effect to, or for any failure or delay by Quamotion in receiving, accessing, processing or accepting any communication sent to Quamotion or for any loss or damages suffered as a result of the operational failure, malfunction, interruption, change, amendment or withdrawal of the Software.
  9. Without prejudice to the aforementioned, Quamotion, its licensors and providers make no representation, warranty or condition that:
    1. the Software will be compatible with the devices and related equipment and software of the Customer and/or User(s);
    2. the Software will be available or will function without interruption or will be free of errors or that any errors will be corrected;
    3. the Software will meet the requirements of the Customer and/or User(s);
    4. the information contained in the Software will be accurate, complete, sequential or timely;
    5. certain or any results may be obtained through the use of the Software;
    6. the use of the Software will be free of viruses, Trojan horses, worms or other destructive or disruptive components.

Indemnification

  1. The Customer shall indemnify Quamotion and hold it harmless from and against any and all claims and procedures initiated by third parties, that might arise or result from any action or omission by the Customer and/or User(s), in violation of this License Agreement and/or any other (statutory) obligations of the Customer.
  2. The Customer shall compensate Quamotion for all damages, including judicial and other costs, occurring in relation to its defence regarding the claims and/or procedures mentioned under article 11.1.

Confidentiality

  1. The Customer and/or User(s) undertake to treat all the information related to the License Agreement, including but not limited to documents, models and drafts, designs, reports, records or other secret documents, whether written or oral, as strictly confidential and not to divulge or disclose any part thereof to any third party. Upon first request, the aforementioned information must be returned to Quamotion.
  2. This confidentiality obligation also continues after the end of the License Agreement, at least until the information in question has entered the public domain without the fault of the Customer and/or his User(s).

Non-competition

The Customer and Users, as well as the persons they are controlled by, as well as their directors shall refrain from exercising, during the full term of this License Agreement and for a period of two (2) years after the termination of this License Agreement within all countries in which Quamotion develops its business directly or indirectly, any activity, directly or indirectly, which competes with the business of Quamotion, either directly or indirectly, either as an employee, director, shareholder, agent, consultant, agent or lender of a company, association or other entity or acting in any other capacity.

Personal Data

  1. The Customer and Users give Quamotion their approval to record the personal data they supply in an automated database. These data will be used for the purpose of conducting information and promotion campaigns and statistical analysis with regard to the products and services provided by Quamotion. The Customer and Users give Quamotion their approval to transfer these data to third parties.
  2. The Customer and Users may always request for communication and correction of their data. If the Customer or User no longer wish to receive commercial information from Quamotion, they shall notify Quamotion thereof.
  3. The Customer gives Quamotion his approval to use footage and images of the products and/or services delivered to the Customer for the purpose of among others – and without being limited thereto – general information, advertising purposes, publication on the Quamotion Website, publication in flyers or folders, etc.
  4. The Customer explicitly approves that Quamotion may mention him as a reference with regard to the Products purchased and provides Quamotion a right to use the Customer’s name, trademark and logo for that purpose.
  5. The Customer is solely and exclusively responsible for the recording and processing of personal data that are collected and/or processed through the applications which are tested with the Software.
  6. Regarding the protection of personal data, Quamotion takes, to its best efforts, adequate and appropriate technical and organisational measures required for the protection of any personal data it processes against any occasional or unauthorised destruction, occasional loss, as well as against alterations of or access to and against any other non-authorised processing of such personal data.

Miscellaneous Provisions

  1. This License Agreement contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, whether written or oral, with respect to the same subject matter still in force between the Parties.
  2. Any amendments to this License Agreement, as well as any additions or deletions, must be agreed in writing by all Parties.
  3. Whenever possible, the provisions of this License Agreement shall be interpreted in such a manner as to be valid and enforceable under applicable law. However, if one or more provisions of this License Agreement are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of this License Agreement shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, in such an event, the Parties shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision in such a way as to reflect insofar as possible the purpose of the invalid, illegal or unenforceable provision(s).
  4. Any failure or delay by Quamotion in exercising any right under this License Agreement, any single or partial exercise of any right under this License Agreement or any partial reaction or absence of reaction by Quamotion in the event of violation by the Customer and/or User(s) of one or more provisions of this License Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of Quamotion’s rights under this Agreement or under said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by the Customer and/or Users, this waiver cannot be invoked by the Customer and/or User(s) in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.
  5. All notices and other forms of communication required under this License Agreement must be in writing and sent to the receiving Party by registered mail (return receipt requested). Any notice shall be considered to have been delivered to the receiving Party three (3) working days following the date of mailing.
  6. Except as provided otherwise, the Customer is considered to have chosen residence at the billing address provided to Quamotion in the Purchase Agreement.
  7. The Customer may change the address to which notices are to be sent by giving Quamotion written notice to this effect conform article 15.6.
  8. Articles 12 and 13 shall survive and continue in full force and effect in accordance with these terms notwithstanding the expiry or termination of this License Agreement.

Applicable Law and Mediation

  1. The License Agreement is governed by Belgian law.
  2. The Parties hereby undertake to apply the CEPANI Mediation Rules to all disputes arising out of or in connection with this License Agreement. The place of the mediation shall be Brussels. The proceedings shall be conducted in English. Should the mediation fail, the dispute shall be finally settled under the CEPANI Rules of Arbitration by one arbitrator appointed in accordance with the said Rules. The place of the arbitration shall be Brussel. The arbitration shall be conducted in English.