Applicability

These terms and conditions apply to the Mendix Basic Package subscription you purchased through the Order Form. By signing and returning the Order Form  to confirm your purchase, you agree to be bound by these terms and conditions, as well as those stated on the Order Form. You represent that you have the authority to do so on behalf of the organization listed in the order details section in the Order Form. If your organization has an executed agreement, the terms of that agreement will prevail, except for the export control section below. Upon termination of that agreement you have the right to continue using the Mendix Basic Package subscription under the terms and conditions outlined below.

Your Purchase

Your purchase entitles your organization to all features and functionality of a Mendix Basic Package subscription, to run an application in Mendix Cloud only (including one production environment in Mendix Cloud, powered with one cloud resource pack – in addition to one development environment running locally on a developer’s machine), which application may be accessed by the number of named users indicated in the Order Form. All named users will be provided with unique login credentials which can be used to identify one specific individual user, authorized by you to access the application. The support and service levels are set forth at https://www.mendix.com/sla under the standard plan (or equivalent level under a successor SLA).

Subscription Term and Renewal

The Mendix Basic Package is for a subscription term of one year, from the date Mendix provisioned the subscription (ideally we will send you the ‘get started’ instructions within one (1) working day from receipt of your order). Your subscription shall not automatically renew and will therefore terminate by operation of law at the end of the subscription term.

Payment Terms

You will be invoiced for the full amount of your subscription at the start of the subscription term and you agree to pay our invoices within thirty (30) days from invoice date. Late payment will result in the immediate cancellation of your subscription.

License Grant

During the subscription term we will grant to you a non-exclusive, non-transferable license to access and use the Mendix Platform for your internal business purposes only. We will use commercially reasonable efforts to make the Mendix Platform available 24 hours a day, 7 days a week, save for planned downtime or any unavailability caused by circumstances beyond our reasonable control. You will not be entitled to receive a copy of the source code of the Mendix Platform. You may not: (1) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit the Mendix Platform in any other way than explicitly allowed hereunder; (2) make the Mendix Platform available to any third party; (3) create any derivative works based upon the Mendix Platform or Documentation; (4) copy any feature, design or graphic, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Mendix Platform; (5) access or let anyone access the Mendix Platform in order to build a competitive solution or to assist someone else to build a competitive solution; (6) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (7) send, upload, store or otherwise transmit, display or distribute any unlawful, infringing, tortious, obscene, threatening, abusive, harassing, defamatory, vulgar, libellous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable material, including but not limited to children or material that violates third party privacy rights or infringes any proprietary rights or intellectual property rights; (8) interfere with or disrupt the integrity or performance of the Mendix Platform or the data contained therein; (9) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or (10) use the Mendix Platform in a way that violates any criminal, public or civil law.

Your Responsibility

You are and remain responsible for (a) all activities conducted under your users logins; and (b) scheduling, implementing and/or installing changes for updates and upgrades of the Mendix Platform.

End-of-Life-Date

We recognize that you may have valid reasons for not immediately upgrading to a new, major release of the Mendix Platform when it becomes available. However, we will only provide support for the current major release and the 2 prior major releases of the Mendix Platform. We commit to support any major release for a minimum period of 24 months from its release date, and we will release at least 2 major releases before considering a major release as ‘end-of-life’. After the end-of-life date, we will no longer provide warranties for any version of the Mendix Platform.

Ownership Mendix Platform IPR and Data

All proprietary and intellectual property rights with regards to the Mendix Platform and Documentation are and shall remain ours or our licensors’. The Mendix name and logo, and the product names associated with the Mendix Platform are our trademarks or that of third parties, and no right or license is granted to use them. We will have the right to collect, use and distribute aggregated information, analysis, statistics and other data generated by the Mendix Platform and Documentation (or derived from your use of the Mendix Platform and Documentation), provided, however, that we shall not disclose any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify the data as associated with you or any of your users.

Ownership Application Data and Application Model

All proprietary and intellectual property rights with regards to your Application Data and the Application Model. For the purpose of performing our obligations under these terms and conditions and to perform our services to you, you agree us to use, store, display, transmit, and distribute Application Data and the Application Model. You are solely responsible for the accuracy, integrity and quality of your Application Data. We will not modify or add to your Application Data and we will not make any claim for any right of ownership in your Application Data or Application Model.

Back-Up and Disaster Recovery

Your Application Data as well as your Application Model are automatically backed-up daily. Back-ups are stored in secure, geographically dispersed locations. Upon cancellation or expiration of the subscription we will no longer have any obligation to preserve or back-up your Application Data or Application Model.

Data Protection

You and we will comply with applicable data privacy laws and regulations governing the protection of personal data. With respect to personal data included in your Application Data, we act as data processor and you are and will remain the data controller. In this respect we will: (1) act, as a data processor, only on and comply with your instructions in relation to the processing of your Application Data as given and varied from time to time; (2) take appropriate technical and organizational security measures, taking into account both the state of technologies and the costs of implementation, against unauthorized or unlawful processing or further processing of Application Data, and against accidental loss or destruction of, and damage to Application Data; (3) at your request, inform you of the general scope of security measures taken; and (4) keep your Application Data confidential in accordance with the applicable contractual confidentiality obligations. Notwithstanding anything to the contrary, for us to provide the services in the most efficient manner, we reserve the right to use suppliers and subcontractors including for processing, hosting and storage purposes, which you accept, whereby we remain responsible for the quality of the services under this agreement, and the suppliers’ and subcontractors’ compliance with applicable data privacy laws and regulations as it applies to data processors. In this respect you consent that your Application Data may be processed, hosted and stored in the https://www.mendix.com/evaluation-guide/deployment/mendix-cloud/  at all times in accordance with the above requirements. The data privacy terms published at https://www.siemens.com/dpt/sw shall apply and are incorporated herewith into this agreement.

Privacy Policy

The use of the Mendix Platform, our website(s) and our other services are subject to our privacy and security policies available via https://www.mendix.com/privacy-policy. We reserve the right to modify our privacy and security policies in our discretion from time to time.

Security

We have implemented and will maintain during the subscription term security measures reasonably designed to protect the confidentiality, security and availability of your applications, Application Data and Application Model. We have embedded security in our processes and standard operating procedures and have the Mendix Platform and covered services audited annually by a qualified, independent third-party auditor. Such audit covers controls for data security, availability, processing integrity, and confidentiality as applicable to inscope trust principles for each service. Learn more at www.mendix.com/trust.

Legally Required Disclosures

Save as required by law, we will promptly notify you of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority that we receive and which relate to your Application Data. At your request, we will provide you with reasonable information in our possession that may be responsive to such demand and any assistance reasonably required for you to respond to said demand in a timely manner. You acknowledge that we have no responsibility to interact directly with the entity making the demand.

Warranties

You and we will comply with all applicable laws and regulations in the performance of these terms and conditions. Furthermore, we warrant that the Mendix Platform will function substantially in accordance with the Documentation and that we own or otherwise have secured the right to provide you access and use rights to the Mendix Platform. In the event the Mendix Platform does not function substantially in accordance with the Documentation, we will – at our own discretion and expense – either modify the Mendix Platform to conform to the Documentation or provide for workaround solution, and if neither options are commercially feasible you or we may terminate the subscription in which case we will refund any prepaid fees on a pro-rata basis for the remaining subscription period. However, we will make no warranties (a) to the extent you or anyone on your behalf have modified the Mendix Platform, (b) for any version of the Mendix Platform that has passed its end-of-life-date, and (c) for errors, omissions, problems, malfunctions, faults, etc. in the Mendix Platform caused by any third-party software, by accidental damage or by other matters beyond our reasonable control. WE MAKE NO WARRANTIES FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THESE TERMS AND CONDITIONS. REPRESENTATIONS ABOUT THE MENDIX PLATFORM OR FEATURES OR FUNCTIONALITY IN ANY COMMUNICATION CONSTITUTE TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE/ WE DISCLAIM ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NO WARRANT THAT (a) ALL REPORTED ERRORS WILL BE CORRECTED OR ALL SUPPORT REQUESTS WILL BE RESOLVED TO MEET YOUR NEEDS, OR (b) THE (USE OF THE) MENDIX PLATFORM WILL BE UNINTERRUPTED, ERROR FREE, FAIL-SAFE, FAULT-TOLERANT OR FREE OF HARMFUL COMPONENTS.

Limitation of Liability

EACH PARTY’S TOTAL LIABILITY FOR ALL CLAIMS AND DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT, IN THE AGGREGATE AND REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE SUBSCRIPTION FEES PAID UNDER THE ORDER FORM. THE FOREGOING LIMITATION DOES NOT APPLY TO OUR INDEMNITIY OBLIGATIONS SET FORTH IN THESE TERMS AND CONDITIONS. NEITHER YOU OR WE WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES, LOSS OF PRODUCTION, INTERRUPTION OF OPERATIONS, OR LOST DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. NEITHER YOU OR WE MAY MAKE A CLAIM UNDER THESE TERMS AND CONDITIONS MORE THAN TWO YEARS AFTER THE EVENT GIVING RISE TO THE CLAIM IS OR SHOULD HAVE BEEN DISCOVERED. THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL NOT APPLY TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED ACCORDING TO APPLICABLE LAW.

Intellectual Property Infringement Indemnity

We will indemnify and defend, at our own expense, any action brought against you to the extent that it is based on a claim that the Mendix Platform infringes any copyright, any trade secret, or a patent or trademark issued or registered, and will pay all damages finally awarded against you by a court of competent jurisdiction or agreed in a settlement, provided that you give us (a) prompt written notice of the claim, (b) all requested information and reasonable assistance related to the claim, and (c) sole authority to defend or settle the claim. We will not admit liability or incur obligations on your behalf without your prior written consent, which shall not be unreasonably withheld. If a permanent injunction is obtained against your use of the Mendix Platform due to an infringement under this section, we will obtain for you the right to continue using the Mendix Platform, or will replace or modify the Mendix Platform to become non-infringing. If such remedies are not reasonably available, we will refund fees paid for the enjoined Mendix Platform for the remainder of the subscription term and you will immediately cease to use the same and return all related software in your possession. We may, in our sole discretion, provide the remedies specified in this section to mitigate infringement prior to the issuance of an injunction. Notwithstanding anything to the contrary herein, we will not have any liability or indemnification obligation to you to the extent that an infringement claim arises out of (a) use of a prior version of the Mendix Platform to the extent that a current version is noninfringing, (b) failure to use a correction, patch, or new version of the Mendix Platform offered by us that performs substantially the same functions, (c) use of the Mendix Platform in combination with software, equipment, or products not provided by us, (d) use of the Mendix Platform, or elements thereof, provided at no charge, (e) deliverables resulting from professional services, (e) any adjustment, modification, or configuration of the Mendix Platform not made by us, or (f) instructions, assistance, or specifications provided by you. This section sets forth our sole and exclusive liability to you for infringement of third-party intellectual property rights.

Termination

Either party may immediately terminate the subscription upon notice to the other party (a) for reasonable cause, including unauthorized installation or use of the Mendix Platform, filing or being filed in bankruptcy, ceasing to do business, , or (b) in order to comply with applicable law or requests of government authorities. At all times during the subscription term and at the latest until thirty (30) days have passed, you may retrieve all your Application Data in accordance with established and reasonable system access procedures. After such period, we will have no further obligation to store or make your Application Data available, and we may delete the same, except as required by law.

Export Compliance

We shall not be obligated to fulfill this Agreement if such fulfillment is affected by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions, including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union or the United States of America which, upon our sole discretion, may expose us or any of our affiliates to sanctions, penalties or other actions of governmental authorities detrimental to us or any of our affiliates. Furthermore, section 11 (Export Control and Sanctions Compliance) of the Universal Customer Agreement published at https://www.sw.siemens.com/en-US/sw-terms/base/uca shall apply and is incorporated herewith into this agreement.

Confidentiality

All confidential information provided by you or us shall be used by the other party solely for the purposes of rendering services pursuant to these terms and conditions, and, except as may be required in carrying out the terms of this agreement, shall not be disclosed to any third party without the prior consent of such providing party.

Feedback

If you provide any ideas regarding the Mendix Platform, including suggestions for changes or enhancements, such feedback may be used by us without condition or restriction.

Force Majeure

Neither you or we will be liable for delay or failure to perform due to any cause beyond reasonable control (including sabotage, attacks on IT systems, internet service provider delay or failure), provided the delayed party promptly notifies the other party.

Governing Law and Jurisdiction

This agreement shall be subject to the applicable laws set forth in the table below, as set forth therein, without reference to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. Any dispute arising out of or in connection with this agreement shall be resolved as set forth in the table below.

No Waiver; Validity and Enforceability

The failure to enforce any provision of this agreement will not be construed as a waiver of such provision. If any provision of this agreement is held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law. The parties agree that electronic signatures or acceptance of this agreement via an electronic system specified by Mendix shall have the same force and effect as manual signatures.

Definitions

All capitalized terms used in this agreement that are not otherwise defined herein, shall have the meaning shown below, for both singular and plural forms.

“Application Data” means any content which is used, created, managed, processed. And/or stored in your application as determined in the Application Model. Application Data may, at your sole discretion, encompass any information that pertains to an identifiable individual, extending to various categories of sensitive data.

“Application Model” means the graphical representation of your application, and the relationship of the infrastructure components required to support or provide functionality to the application.

“Documentation” means the documentation provided by us to assist users in the use of the Mendix Platform describing the operational functionality of (elements of) the Mendix Platform, including user and system administrator guides and manuals, found at https://docs.mendix.com.

“Mendix Platform” means the cloud services and software provided by us as the Mendix low-code enterprise application development platform-as-a-service, covering components that enable steps in the application life cycle (ideation, development, deployment, testing, and ongoing management of the application portfolio in the cloud or on premise) involving visual modelling techniques, drag-and-drop components, pre-built templates, including but not limited to Mendix Community Hub, Mendix Control Center, Mendix Developer Portal, Mendix Connect, Mendix Marketplace, Mendix Runtime, Mendix Studio Pro, and Mendix Support Portal, as further described in the Documentation. To avoid doubt, (i) Mendix Studio Pro as the low-code IDE comes as software, and (ii) your applications, Application Data and Application Models do explicitly not form part of the Mendix Platform.

Applicability

This End-User License Agreement (“EULA”) applies to the Mendix Basic Package subscription sold to you by Digital River. By confirming your purchase in the Digital River checkout process you have agreed to be bound by this EULA. In case you have an executed agreement, the terms of that agreement will prevail, save for the export control section below. Upon termination of that agreement, you have the right to continue to use the Mendix Basic Package subscription under this EULA.

Your Purchase

Your purchase from Digital River entitles you to all features and functionality of a Mendix Basic Package subscription, to run an Application in Mendix Cloud only (including one production environment in Mendix Cloud, powered with one cloud resource pack – in addition to one development environment running locally on a developer’s machine), which Application may be accessed by the number of named users indicated in the purchase confirmation email by Digital River (any overage will be charged at then current fees). All named users will be provided with unique login credentials which can be used to identify one specific individual user, authorized by you to access the Application. The support and service levels are set forth at https://www.mendix.com/sla under the standard plan (or equivalent level under a successor SLA). Support Phone service is not available.

License Grant

During the subscription term we will grant to you on behalf of Digital River a non-exclusive, non-transferable license to access and use the Mendix Platform for your internal business purposes only. We will use commercially reasonable efforts to make the Mendix Platform available 24 hours a day, 7 days a week, save for planned downtime or any unavailability caused by circumstances beyond our reasonable control. You will not be entitled to receive a copy of the source code of the Mendix Platform. You may not: (1) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit the Mendix Platform in any other way than explicitly allowed hereunder; (2) make the Mendix Platform available to any third party; (3) create any derivative works based upon the Mendix Platform or Documentation; (4) copy any feature, design or graphic, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Mendix Platform; (5) access or let anyone access the Mendix Platform in order to build a competitive solution or to assist someone else to build a competitive solution; (6) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (7) send, upload, store or otherwise transmit, display or distribute any unlawful, infringing, tortious, obscene, threatening, abusive, harassing, defamatory, vulgar, libellous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable material, including but not limited to children or material that violates third party privacy rights or infringes any proprietary rights or intellectual property rights; (8) interfere with or disrupt the integrity or performance of the Mendix Platform or the data contained therein; (9) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or (10) use the Mendix Platform in a way that violates any criminal, public or civil law.

Your Responsibility

You are and remain responsible for (a) all activities conducted under your users’ logins; and (b) scheduling, implementing and/or installing changes for updates and upgrades of the Mendix Platform.

End-of-Life Date

We recognize that you may have legitimate business reasons for not upgrading to a new, major software release of the Mendix Platform as soon as an upgrade becomes available. However, we will only support the current major release and the two (2) prior major releases of the Mendix Platform. We will (a) at least support any major release for a minimum period of twenty-four (24) months from its release date, and (b) not cease to support any major release prior to expiration of said twenty-four months and after we have released at least two (2) newer major releases.

Ownership Mendix Platform IPR and Data

All proprietary and intellectual property rights with regards to the Mendix Platform and Documentation are and shall remain ours or our licensors’. The Mendix name and logo, and the product names associated with the Mendix Platform are our trademarks or those of third parties, and no right or license is granted to use them. We will have the right to collect, use and distribute aggregated information, analysis, statistics and other data generated by the Mendix Platform and Documentation (or derived from your use of the Mendix Platform and Documentation), provided, however, that we shall not disclose any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify the data as associated with you or any of your users.

Ownership Application Data and Application Model

All proprietary and intellectual property rights regarding your Application Data and the Application Model. For performing our obligations under this EULA and to perform our services to you, you agree us to use, store, display, transmit, and distribute Application Data and the Application Model. You are solely responsible for the accuracy, integrity and quality of your Application Data. We will not modify or add to your Application Data and we will not make any claim for any right of ownership in your Application Data or Application Model.

Back-Up and Disaster Recovery

Your Application Data as well as your Application Model are automatically backed-up daily. Back-ups are stored in secure, geographically dispersed locations. Upon cancellation or expiration of the subscription we will no longer have any obligation to preserve or back-up your Application Data or Application Model.

Data Protection

You and we will comply with applicable data privacy laws and regulations governing the protection of personal data. With respect to personal data included in your Application Data, we act as data processor, and you are and will remain the data controller. In this respect we will: (1) act, as a data processor, only on and comply with your instructions in relation to the processing of your Application Data as given and varied from time to time; (2) take appropriate technical and organizational security measures, taking into account both the state of technologies and the costs of implementation, against unauthorized or unlawful processing or further processing of Application Data, and against accidental loss or destruction of, and damage to Application Data; (3) at your request, inform you of the general scope of security measures taken; and (4) keep your Application Data confidential in accordance with the applicable contractual confidentiality obligations. Notwithstanding anything to the contrary, for us to provide the services in the most efficient manner, we reserve the right to use suppliers and subcontractors including for processing, hosting and storage purposes, which you accept, whereby we remain responsible for the quality of the services under this EULA, and the suppliers’ and subcontractors’ compliance with applicable data privacy laws and regulations as it applies to data processors. In this respect you consent that your Application Data may be processed, hosted and stored in the https://www.mendix.com/evaluation-guide/app-capabilities/mendix-cloud-overview/, at all times in accordance with the above requirements. The data privacy terms published at https://www.siemens.com/dpt/sw shall apply and are incorporated herewith into this EULA.

Privacy Policy

The use of the Mendix Platform, our website(s) and our other services are subject to our privacy and security policies available via https://www.mendix.com/privacy-policy. We reserve the right to modify our privacy and security policies at our discretion from time to time.

Security

We have implemented and will maintain during the subscription term security measures reasonably designed to protect the confidentiality, security and availability of your Applications, Application Data and Application Model. We have embedded security in our processes and standard operating procedures and have the Mendix Platform and covered services audited annually by a qualified, independent third-party auditor. Such audit covers controls for data security, availability, processing integrity, and confidentiality as applicable to in-scope trust principles for each service. Learn more at www.mendix.com/trust.

Legally Required Disclosures

Save as required by law, we will promptly notify you of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority that we receive, and which relate to your Application Data. At your request, we will provide you with reasonable information in our possession that may be responsive to such demand and any assistance reasonably required for you to respond to said demand in a timely manner. You acknowledge that we have no responsibility to interact directly with the entity making the demand.

Warranties

You and we will comply with all applicable laws and regulations in the performance of this EULA. Furthermore, we warrant that the Mendix Platform will function substantially in accordance with the Documentation and that we own or otherwise have secured the right to provide you access and use rights to the Mendix Platform. In the event the Mendix Platform does not function substantially in accordance with the Documentation, we will – at our own discretion and expense – either modify the Mendix Platform to conform to the Documentation or provide for a workaround solution, and if neither option is commercially feasible we may terminate the subscription. However, we will make no warranties (a) to the extent you or anyone on your behalf have modified the Mendix Platform, (b) for any version of the Mendix Platform that has passed its end-of-life-date, and (c) for errors, omissions, problems, malfunctions, faults, etc. in the Mendix Platform caused by any third-party software, by accidental damage or by other matters beyond our reasonable control. WE MAKE NO WARRANTIES FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS EULA. REPRESENTATIONS ABOUT THE MENDIX PLATFORM OR FEATURES OR FUNCTIONALITY IN ANY COMMUNICATION CONSTITUTE TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE/ WE DISCLAIM ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NO WARRANT THAT (a) ALL REPORTED ERRORS WILL BE CORRECTED OR ALL SUPPORT REQUESTS WILL BE RESOLVED TO MEET YOUR NEEDS, OR (b) THE (USE OF THE) MENDIX PLATFORM WILL BE UNINTERRUPTED, ERROR FREE, FAIL-SAFE, FAULT-TOLERANT OR FREE OF HARMFUL COMPONENTS.

Limitation of Liability

EACH PARTY’S TOTAL LIABILITY FOR ALL CLAIMS AND DAMAGES RELATED IN ANY WAY TO THIS EULA, IN THE AGGREGATE AND REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE SUBSCRIPTION FEES PAID THROUGH DIGITAL RIVER DURING THE 12-MONTHS PERIOD BEFORE THE EVENT OR CIRCUMSTANCES GIVING RISE TO THE LIABILITY FIRST OCCURRED. THE FOREGOING LIMITATION DOES NOT APPLY TO OUR INDEMNITIY OBLIGATIONS SET FORTH IN THIS EULA. NEITHER YOU OR WE WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES, LOSS OF PRODUCTION, INTERRUPTION OF OPERATIONS, OR LOST DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. NEITHER YOU OR WE MAY MAKE A CLAIM UNDER THIS EULA. MORE THAN TWO YEARS AFTER THE EVENT GIVING RISE TO THE CLAIM IS OR SHOULD HAVE BEEN DISCOVERED. THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL NOT APPLY TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED ACCORDING TO APPLICABLE LAW.

Intellectual Property Infringement Indemnity

We will indemnify and defend, at our own expense, any action brought against you to the extent that it is based on a claim that the Mendix Platform infringes any copyright, any trade secret, or a patent or trademark issued or registered, and will pay all damages finally awarded against you by a court of competent jurisdiction or agreed in a settlement, provided that you give us (a) prompt written notice of the claim, (b) all requested information and reasonable assistance related to the claim, and (c) sole authority to defend or settle the claim. We will not admit liability or incur obligations on your behalf without your prior written consent, which shall not be unreasonably withheld. If a permanent injunction is obtained against your use of the Mendix Platform due to an infringement under this section, we will obtain for you the right to continue using the Mendix Platform, or will replace or modify the Mendix Platform to become non-infringing. If such remedies are not reasonably available, you will immediately cease to use the same and return all related software in your possession. We may, in our sole discretion, provide the remedies specified in this section to mitigate infringement prior to the issuance of an injunction. Notwithstanding anything to the contrary herein, we will not have any liability or indemnification obligation to you to the extent that an infringement claim arises out of (a) use of a prior version of the Mendix Platform to the extent that a current version is non-infringing, (b) failure to use a correction, patch, or new version of the Mendix Platform offered by us that performs substantially the same functions, (c) use of the Mendix Platform in combination with software, equipment, or products not provided by us, (d) use of the Mendix Platform, or elements thereof, provided at no charge, (e) deliverables resulting from professional services, (e) any adjustment, modification, or configuration of the Mendix Platform not made by us, or (f) instructions, assistance, or specifications provided by you. This section sets forth our sole and exclusive liability to you for infringement of third-party intellectual property rights.

Termination

Either party may immediately terminate the subscription upon notice to the other party (a) for reasonable cause, including unauthorized installation or use of the Mendix Platform, filing or being filed in bankruptcy, ceasing to do business, or (b) to comply with applicable law or requests of government authorities. During the subscription term and at the latest until thirty (30) days have passed, you may retrieve all your Application Data in accordance with established and reasonable system access procedures. After such period, we will have no further obligation to store or make your Application Data available, and we may delete the same, except as required by law.

Export Compliance

We shall not be obligated to fulfill this EULA if such fulfillment is affected by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions, including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union or the United States of America which, upon our sole discretion, may expose us or any of our affiliates to sanctions, penalties or other actions of governmental authorities detrimental to us or any of our affiliates.

Confidentiality

All confidential information provided by you or us shall be used by the other party solely for the purposes of rendering services pursuant to this EULA, and, except as may be required in carrying out the terms of this EULA, shall not be disclosed to any third party without the prior consent of such providing party.

Feedback

If you provide any ideas regarding the Mendix Platform, including suggestions for changes or enhancements, such feedback may be used by us without condition or restriction.

Force Majeure

Neither you or we will be liable for delay or failure to perform due to any cause beyond reasonable control (including sabotage, attacks on IT systems, internet service provider delay or failure), provided the delayed party promptly notifies the other party.

Governing Law and Jurisdiction

This EULA shall be subject to the applicable laws of Switzerland, without reference to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. Any dispute arising out of or in connection with this EULA shall be resolved by binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce. The seat of arbitration shall be Zurich (CH).

No Waiver; Validity and Enforceability

The failure to enforce any provision of this EULA will not be construed as a waiver of such provision. If any provision of this EULA is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.

Definitions

All capitalized terms used in this EULA that are not otherwise defined herein, shall have the meaning shown below, for both singular and plural forms.

“Application” means a software solution or system created and deployed in a production environment using the Mendix Platform, representing the outcome of visual modelling techniques with specific functionalities, features, and user interfaces catering to particular internal business needs and use cases determined by you.

“Application Data” means any content which is used, created, managed, processed, and/or stored in the Application as determined in the Application Model. Application Data may, at your sole discretion, encompass any information that pertains to an identifiable individual, extending to various categories of sensitive data.

“Application Model” means the graphical representation of the Application, and the relationship of the infrastructure components required to support or to provide functionality to the Application.

“Documentation” means the documentation provided by us to assist users in the use of the Mendix Platform describing the operational functionality of (elements of) the Mendix Platform, including user and system administrator guides and manuals, found at https://docs.mendix.com.

“Mendix Platform” means the cloud services and software provided by Siemens as the Mendix low-code enterprise application development platform-as-a-service, covering components that enable steps in the application life cycle (ideation, development, deployment, testing, and ongoing management of the application portfolio in the cloud or on premises) involving visual modelling techniques, drag-and-drop components, and pre-built templates, including but not limited to Mendix Community Hub, Mendix Control Center, Mendix Portal, Mendix Connect, Mendix Marketplace, Mendix Runtime, Mendix Studio Pro, and Mendix Support Portal, as further described in the Documentation. To avoid doubt, (i) Mendix Studio Pro as the low-code IDE comes as software, and (ii) Applications, Application Data and Application Models do explicitly not form part of the Mendix Platform.