Self-Managed Service License Agreement

This agreement was last updated on 1 November 2023.

This Software License Agreement (this “Agreement”) is by and between BeDataDriven B.V., a limited liability corporation whose principal place of business is Binckhorstlaan 36, The Hague (“Vendor”) and the organization addressed in the quotation (“Customer”).

Vendor provides an on-premise software application known as ActivityInfo (the “Software”), and the parties have agreed that Vendor will provide the Software to Customer and also provide maintenance services related to the Software. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.

1. Definitions

The following capitalized terms shall have the following meanings wherever used in this Agreement.

  1. “Documentation” means the Software’s documentation available at https://www.activityinfo.org/support/docs/index.html
  2. “Software” means Vendor’s ActivityInfo Self-Managed Server, in object code format.
  3. “Specifications” means Vendor’s standard specifications for the Software set forth in its then current Documentation.
  4. “Term” is defined in Section 9
  5. “Effective Date” is the date specified in the Sales Quotation, or the date of signature by the Customer if not otherwise specified.
  6. “Upgrade’ means new versions, updates or upgrades of the Software, in object code format.
  7. “User” is a natural person with remote access to the Software running on Customer’s server computer, authenticated using an email address.

2. Licenses and delivery

  1. License. Vendor hereby grants Customer a nonexclusive license, for one year from the Effective Date:
    1. to deploy the Software to no more than the number of users indicated on the quote,
    2. reproduce the Software as necessary to exercise Customer’s rights in Subsection 2.1.a above and to create a reasonable number of copies for backup, staging and testing purposes.
  2. Documentation: Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.
  3. Delivery. Vendor shall provide the Software and Documentation to Customer through its website, and a license key file upon signature of the Agreement or a Quote that references this agreement.

3. Maintenance and Support

  1. Provision of Maintenance. During each Maintenance Term, Vendor shall maintain the Software according to its Maintenance Plan. “Maintenance Term” refers to the one-year period following the Effective Date.
  2. Technical Support. Provider shall provide technical support to the Customer by email or video call software for up to ten hours during the Term of this Agreement. Unused hours expire at the end of the Term of this Agreement.
  3. Upgrades. During each Maintenance Term, Vendor shall provide Customer with copies of all Upgrades, without additional charge, promptly after commercial release. Upon delivery to Customer, each Upgrade will constitute an element of the Software and will thereafter be subject to this Agreement’s terms regarding Software, including without limitation license, warranty, and indemnity terms.

4. Fees & reimbursement

  1. Fees. Customer shall pay the Vendor License Fees and Technical support fees specified in the signed Sales Quotation.
  2. Invoices. Payment against all invoices will be due within 30 days thereof. Provider will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.

5. Intellectual Property

  1. IP Rights in the Software. Vendor retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (Licenses), 2.3 (Documentation).

6. Confidential Information

  1. Confidential Information Defined. "Confidential Information" refers to the following one party to this Agreement ("Discloser") discloses to the other ("Recipient"):
    1. any document Discloser marks "Confidential";
    2. any information Discloser orally designates as "Confidential" at the time of disclosure, provided Discloser confirms such designation in writing within 5 business days; and
    3. any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser's valuable trade secrets.
  2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the "Purpose"). Recipient: 
    1. shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section 6; and
    2. shall not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense.
  3. Injunction. Recipient agrees that breach of this Section 6 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
  4. Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
  5. Survival. The obligations of Section 6 (Nondisclosure) will survive termination or expiration of this Agreement.

7. Warranties & Representations

  1. Provider warrants that, during the Term of this Agreement, the Software will perform materially as described in its Documentation.
  2. Provider warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software in this Agreement
    1. without the further consent of any third party and
    2. without conditions or requirements not set forth in this Agreement
  3. Except for the express warranties specified above, Provider makes no warranties, either express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without the limiting the generality of the foregoing, Provider has no obligation to indemnify, defend, or hold harmless Customer, including without limitation against claims related to product liability or infringement of intellectual property rights.

8. Limitation of Liability

  1. In no event will the Provider be liable for damage of any nature whatsoever caused by the Provider's reliance on incorrect and/or incomplete information supplied by the Customer.
  2. Provider's cumulative liability arising out of or related to this Agreement will not exceed the fees payable to Provider pursuant to this Agreement.
  3. Provider's liability is limited to Direct Damage, which is exclusively understood to mean:
    1. reasonable costs for determining the cause and extent of the damage
    2. reasonable costs incurred to remedy the defective performance of the Provider comply with the agreement, insofar as these can be attributed to the Provider and reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to a limitation of Direct Damage as referred to in this section.
  4. In no event will Provider be liable for lost profits or loss of business or for any indirect, special, consequential, incidental, or punitive damages arising out of this Agreement.
  5. Contrary to the statutory limitation periods, the limitation period for all claims and defenses against the Provider in the performance of an agreement is one year.

9. Term & Termination

  1. Term. This Agreement will remain in effect for one year from the Effective Date (the "Term").
  2. Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
  3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software. The following provisions will survive termination or expiration of this Agreement:
    1. any obligation of Customer to pay fees incurred before termination;
    2. Sections 2.2 (Restrictions on Software Rights) 5 (IP), 6 (Confidential Information), 7.3 (Warranty Disclaimers), 8 (Limitation of Liability); and
    3. any other provision of this Agreement that must survive to fulfill its essential purpose.

10. Miscellaneous

  1. Choice of Law & Jurisdiction: All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters ("Netherlands Commercial Court" or "NCC District Court"), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal's Chamber for International Commercial Matters ("Netherlands Commercial Court of Appeal" or "NCCA"). The NCC Rules of Procedure apply.
  2. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
  3. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.