License Agreement - Mendix

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License Agreement

1. App Platform License

1.1

Mendix hereby grants Licensee and its Affiliates a non-exclusive, non-transferable right to use the App Platform, solely for Licensee’s internal business purposes. Aforementioned right to use the App Platform is subject to the limitations as stated on an Order Form including, but not limited to: users, storage, memory and time. Licensee and its Affiliates only obtain a right to use the App Platform and therefore have no right to receive a copy of the object- or source code. Licensee’s right to use the App Platform is conditional upon the following.

1.2

Licensee may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit the App Platform in any other way than explicitly allowed under the Agreement; (ii) make the App Platform available to anyone who is not an “Authorized User” (an Authorized User is an employee of Licensee, or of an entity to whom Licensee has outsourced services); (iii) create any derivative works based upon the App Platform or Documentation other than the Application Model; (iv) copy any feature, design or graphic, or reverse engineer the App Platform; (v) access or let anyone access the App Platform in order to build a competitive solution or to assist someone else to build a competitive solution; (vi) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or material that violates third party privacy rights; (viii) interfere with or disrupt the integrity or performance of the App Platform or the data contained therein; (ix) use the App Platform in a way that violates any criminal, public or civil law.

2. Licensee’s Obligations and Responsibilities

2.1

Licensee must have a high speed internet connection to access the App Platform.

2.2

Licensee is responsible for maintaining up-to-date hardware and software that is compatible with the App Platform, as set out in the Documentation.

2.3

Mendix regularly upgrades and updates the App Platform, which may require Licensee to schedule, implement and/or install the changes. The changes may also mean that Licensee needs to upgrade its equipment in order to make efficient use of the App Platform.

2.4

Mendix recognizes that Licensee may have legitimate business reasons for not upgrading to a new version of the App Platform as soon as a new version becomes available. However, Mendix will only support the current major release and the two prior major releases of the App Platform. Mendix shall always support a major release for a minimum period of 24 months from its release date. Upon expiration of the 24 months from the initial major release date and after Mendix has released at least two newer major releases, aforementioned major release shall no longer be supported by Mendix (“End-of-Life-Date”).

2.5

Licensee must provide Mendix with all information, access, and full good faith cooperation reasonably necessary to enable Mendix to meet its obligations under the Agreement. If Licensee fails to do this, Mendix will be relieved from its obligations to the extent that the obligations are dependent upon Licensee’s performance or cooperation.

3. App Platform Warranties

3.1

Mendix warrants that: (i) the App Platform will function substantially as described in the Documentation; and (ii) Mendix owns or otherwise has the right to provide the App Platform to Licensee under the Agreement. The remedies set out in this section 3 are Licensee’s exclusive remedies for breach of either warranty.

3.2

Notwithstanding any Service Level Agreement between the Parties, if the App Platform does not function substantially in accordance with the Documentation, Mendix must, at its option, either (i) modify the App Platform to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet Licensee’s requirements. If neither of these options is commercially feasible, either Party may terminate the Agreement, in which case Mendix shall refund to Licensee all fees pre-paid to Mendix under the relevant Order Form for the period in which the App Platform will remain unused by Licensee.

3.3

If the normal operation, possession or use of the App Platform by Licensee is found to infringe any third party intellectual property right, Mendix must, at its option, either (i) modify the App Platform so that it no longer infringes; (ii) obtain a license from such third party for the benefit of Licensee; or (iii) if neither of these options is commercially feasible, terminate the relevant Order Form, in which case Mendix shall refund to Licensee all fees pre-paid to Mendix under said Order Form for the period in which the App Platform will remain unused by Licensee.

3.4

HOWEVER, MENDIX MAKES NO WARRANTIES FOR: (I) THE EXTENT THAT THE APP PLATFORM HAS BEEN MODIFIED BY LICENSEE OR ANY THIRD PARTY, UNLESS THE MODIFICATION HAS BEEN APPROVED IN WRITING BY MENDIX; (II) A VERSION OF THE APP PLATFORM THAT HAS PASSED ITS END-OF-LIFE-DATE; OR (III) PROBLEMS IN THE APP PLATFORM CAUSED BY ANY THIRD PARTY SOFTWARE OR HARDWARE, BY ACCIDENTAL DAMAGE OR BY OTHER MATTERS BEYOND MENDIX’ REASONABLE CONTROL.

3.5

EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE AGREEMENT, THE APP PLATFORM IS PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND MENDIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MENDIX DOES NOT WARRANT THAT THE USE OF THE APP PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.

4. Licensee Data

4.1

Licensee is solely responsible for providing and for the accuracy and completeness of all Licensee Data for use in the App Platform and Application Model. Mendix shall not modify or add to the Licensee Data and Mendix makes no claim to any right of ownership in the Application Model or Licensee Data.

4.2

Mendix may only use the Licensee Data strictly as necessary to carry out its obligations under the Agreement, and for no other purpose.

4.3

Mendix shall comply with national/federal legislation in relation to any “personally identifiable data” received by or originating from Licensee.

4.4

Mendix shall take sufficient technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Licensee’s instructions, provided those instructions are reasonable and lawful.

4.5

Mendix must back up Licensee Data once in each 24-hour period.

4.6

Upon the termination of the Agreement Mendix shall no longer have the obligation to preserve or back-up any Licensee Data. Upon the expiration of the last term under an Order Form or the termination of an Order Form Mendix shall no longer have the obligation to preserve or back-up any Licensee Data under the applicable Order Form.

5. Term of Agreement

5.1

The Agreement will be in effect starting on the start date stated on the Order Form as accepted by Customer and will end on the latter of the following events: (i) the date Mendix is no longer obliged to provide any services under the Agreement; or (ii) the Agreement is terminated in accordance with section 6 or any special termination right provided in the Agreement.

5.2

The Agreement will be automatically renewed for consecutive periods of twelve months upon expiration of either the end date stated on the Order Form or the previous automatically renewed 12 month period, unless either Party terminates the Agreement at least 60 days prior to the end date stated on the Order Form or the previous automatically renewed 12 month period by written notice to the other Party. Notwithstanding the foregoing however, any Expert Services, Training or other one-off services stated on the Order Form shall not be automatically renewed.

6. Termination and Suspension

6.1

Either Party may terminate the Agreement if the other Party is in material breach of the Agreement, which also includes non-payment by Customer of fees due to Mendix, provided the other Party has been served written notice of default and fails to cure the breach within 30 days from aforementioned written notice.

6.2

Sections 2, 7, 8, 9, 10, and 14 survive the termination of the Agreement.

7. Confidentiality

7.1

Confidential Information is the Application Model, Licensee Data and any other information disclosed by a Party (“Disclosing Party”) to one or more other Parties (“Receiving Party”), in whatever form, including orally, which is identified as ‘confidential’ or ‘secret’, or from which a reasonable person under the circumstances must have known that the information is confidential.

7.2

Confidential Information shall not include any information which: (i) is already in the public domain or becomes available to the public through no breach of the Agreement; (ii) is received by a Party independently from any third party which is not bound by any confidentiality obligation with respect to such information; (iii) was already lawfully in the possession of the recipient before its disclosure under the Agreement took place; (iv) is independently developed by a Party; (v) is required by law to disclose.

7.3

Parties shall: (i) maintain strict confidentiality with respect to Confidential Information; (ii) without the prior written consent of the Disclosing Party not: distribute, disclose or disseminate Confidential Information to any person other than those of its employees or advisors, who reasonably need to know such information for the purpose of the performance of the obligations under the Agreement; (iii) ensure that all people to whom the Confidential Information is disclosed under the Agreement are aware of the terms of this clause and shall see to it that they shall at all times fully comply with it; (iv) use the Confidential Information solely for the purposes for which it is disclosed; (v) make copies of the Confidential Information only to the extent strictly necessary to the purpose for which it was disclosed; (vi) keep the content of the Order Form confidential.

7.4

The Receiving Party will on request of the Disclosing Party either: return all copies of the Confidential Information to the Disclosing Party; or destroy it and confirm in writing to the Disclosing Party that this has been done.

8. Limitation of Liability

8.1

NEITHER PARTY SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY.

8.2

LICENSEE ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE APP PLATFORM AND DOCUMENTATION NECESSARY TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE APP PLATFORM OR APPLICATION MODEL.

8.3

EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO MENDIX UNDER SUCH RELEVANT ORDER FORM DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. HOWEVER, NOTHING IN SECTION 8.3 SHALL HAVE THE EFFECT OF LIMITING A PARTY’S LIABILITY FOR (I) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF THE OTHER PARTY; (II) FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION); OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

9. Indemnification by Mendix

9.1

Other then as provided in section 8.3 above, Mendix must indemnify and hold harmless Licensee from any direct damages finally awarded against Licensee (including, without limitation, reasonable costs and legal fees incurred by Licensee) arising out of any third party suit, claim or other legal action alleging that the use of the App Platform, Documentation or Application Model by Licensee infringes any copyright, trade secret or patent, (“Platform Claim”).

9.2

Licensee must give written notice to Mendix of any Platform Claim no later than 30 days after first receiving notice of a Platform Claim, and must give copies to Mendix of all communications, notices and/or other actions relating to the Platform Claim. Licensee must give Mendix the sole control of the defence of any Platform Claim, must act in accordance with the reasonable instructions of Mendix and must give Mendix such assistance as Mendix reasonably requests to defend or settle such claim. Mendix must conduct its defence at all times in a manner that is not adverse to Licensee’s interests. Licensee may employ or hire its own counsel to assist it with respect to any such claim. Licensee must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Mendix or its counsel, or because Mendix fails to assume control of the defence. Licensee may not settle or compromise any Platform Claim without Mendix’ express written consent. Mendix shall be relieved of its indemnification obligation if Licensee materially fails to comply with this section 9.

9.3

However, Mendix shall have no indemnification obligations for any Platform Claim arising out of: (i) a combination of the App Platform or Application Model with software or products not supplied, or approved in writing by Mendix; (ii) any repair, adjustment, modification or alteration to the App Platform by Licensee or any third party, unless approved in writing by Mendix; or (iii) any refusal by Licensee to install and use a non-infringing version of the App Platform or workaround solution offered by Mendix under section 3.2(ii). Section 3.2(ii) and this section 9 state the entire liability of Mendix with respect to any intellectual property infringement by the App Platform or Application Model.

10. Indemnification by Licensee

10.1

Other than as provided in section 8.3 above, Licensee must indemnify and hold harmless Mendix from any direct damages finally awarded against Mendix (including, without limitation, reasonable costs and legal fees incurred by Licensee) arising out of any third Party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Licensee Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Licensee Data (“Licensee Data Claim”).

10.2

Mendix must give written notice to Licensee of any Licensee Data Claim no later than 30 days after first receiving notice of a Licensee Data Claim, and must give copies to Licensee of all communications, notices and/or other actions relating to the Licensee Data Claim. Mendix must give Licensee the sole control of the defence of any Licensee Data Claim, must act in accordance with the reasonable instructions of Licensee and must give Licensee such assistance as Licensee reasonably requests to defend or settle such claim. Licensee must conduct its defence at all times in a manner which is not adverse to Mendix’ interests. Mendix may employ its own counsel to assist it with respect to any such claim. Mendix must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Licensee or its counsel, or because Licensee fails to assume control of the defence. Mendix must not settle or compromise any Licensee Data Claim without Licensee’s express written consent. Licensee shall be relieved of its indemnification obligation if Mendix materially fails to comply with section 10.

11. Force Majeure

Neither Party shall be bound to fulfil any obligation under the Agreement if prevented from doing so by force majeure. Insofar as not already included, force majeure shall mean instances of strikes, company sit-ins, blockades, embargoes, government measures, war, revolution and/or any similar state, power failures, faults in electronic communication lines, cable breaks, fires, explosions, water damage, lightning damage, natural disasters, flooding and/or earthquake.

12. Publicity

Licensee herewith authorizes Mendix to use Licensee’s name and logo on its website and in media releases.

13. Payments

13.1

Customer shall pay the fees listed in the Order Form, without any deduction or set-off, within 30 days from invoice date.

13.2

All fees listed on the Order Form do not include any taxes such as sales, use or value added or similar taxes. Mendix shall invoice Customer for the fees listed on the Order Form plus any taxes due over such fees (excluding corporate income taxes or similar taxes).

13.3

If Customer fails to comply with section 13.1, Customer shall pay a surcharge, on such overdue amounts, equal to the highest interest rate permitted by applicable law. Interest shall compound monthly. Customer shall bear all of Mendix’ costs of collection of overdue fees, including reasonable attorneys’ fees.

14. Miscellaneous

14.1

The Order Form, License Agreement and Service Level Agreement together represents the entire agreement of the Parties, supersedes any prior or current understandings, whether written or oral, and may not be changed or any part waived except in writing by the Parties.

14.2

The Agreement will be governed by the laws of Massachusetts (USA). The Parties consent to the exercise of exclusive jurisdiction by the courts of Boston, MA (USA) for any claim relating to the Agreement.

14.3

Neither Party may assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of the other, except in the case of an assignment of its rights and obligations to an entity that has acquired all, or substantially all of its assets, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this section 14.3 is void. Licensee may not export or re-export, directly or indirectly, any App Platform, Documentation or Confidential Information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.

14.4

During the term of the Agreement and for a period of three years following its termination, Mendix may, upon 30 days advance written notice, inspect and audit Licensee’s records to verify compliance with the Agreement. Licensee agrees to cooperate with the audit, and provide Mendix with reasonable assistance and access to information.

14.5

Licensee may audit Mendix’ records, and Mendix shall provide reasonable assistance and access, for the sole purpose of meeting Licensee’s regulatory requirements and to no further extend than such regulatory requirements. Such audit shall not occur more frequently than once every twelve months. Licensee shall provide sixty (60) days written notice of its intent to conduct such an audit and shall execute all appropriate confidentiality agreements prior to such audit. Licensee will bear all expenses for such audit.

15. Definitions

15.1

The capitalized terms set forth below, as used in the Agreement, shall have the following meanings:

15.2

“Affiliate” means any individual, corporation, partnership, association or business that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a Party or its successors. Affiliates shall include such entities whether now existing or later established by investment, merger or otherwise, including the successors and assigns of such entities.

15.3

“Agreement” means the combination of the Order Form, this License Agreement and the Service Level Agreement, representing the entire agreement of the Parties. In the event of a conflict between the Order Form, this License Agreement and the Service Level Agreement, the terms of the Order Form shall prevail.

15.4

“Anonymous User” means an individual authorized by Licensee to access the App without unique login credentials, as well as any external system that accesses or is accessed by the App.

15.5

“Any App User” means a Named User or Anonymous User which has access to any or all Apps on the App Platform under one account where a login by the same Named User from multiple devices is counted as one user. Any App Users are defined as users that are accessing Apps, deployed on the App Platform within a given calendar day as well as any external system that accesses or is accessed by the App. Calendar days are determined by the time zone of the platform license. There is no limit to the actual Named Users.

15.6

“App Platform” means all software, products and services provided by Mendix whether such software, products and services are provided physically at Licensee’s location, through the internet or installed on Licensee’s hardware, including but not limited to: Mendix’ websites, Business Modeler, Business Server, Team Server, Cloud Portal, App Store, Support Portal, Forum, Partner Portal, Cloud services, platform as a service, documentation and manuals. For the avoidance of doubt, Licensee Data and the Application Model are not part of the App Platform.

15.7

“Application” or “App” means the software application, for which the Application Model has been created by Licensee or per Licensee’s instructions and requirements by Mendix or any other Party, making use of the App Platform and has been deployed into either a test-, acceptance-, or production environment, either in the Mendix Cloud or on Licensee’s premises.

15.8

“App Container” means a standardized configuration of resources required to run an App in an App Environment. An App Environment can have multiple App Containers.

15.9

“App Engine” App Engines are capacity units needed to run an App in the Mendix Cloud. Each App Engine includes 1024MB RAM that can be allocated to App and/or database within one App Environment. OS/VM infrastructure usage is provided additionally. Each App Engine also includes 5GB of database and 5GB of file storage as well as corresponding back-up storage.

15.10

“App Environments” Apps in the Mendix Cloud can be deployed to one or multiple App Environments. App Environments can be used for test, acceptance or production; types of Environments are interchangeable. The number of Apps stated on the Order Form refers to the maximum number of production App Environments.

15.11

“Application Model” means the visual model of Licensee’s end-user application, which visual model has been created by Licensee or per Licensee’s instructions and requirements by Mendix or any other party, making use of the App Platform.

15.12

“Concurrent User” means the total number of users (Named and Anonymous) that simultaneously access a specific App.

15.13

“Customer” means the legal entity stated as such in the Order Form.

15.14

“Documentation” means end-user documentation provided by Mendix describing the operational functionality of (elements of) the App Platform. Documentation can be found here: https://docs.mendix.com/.

15.15

“File Storage” means a capacity unit which can be allocated towards file storage or database storage and is provided with the corresponding back-up storage.

15.16

“License Agreement” means this document setting forth the terms and conditions for the license as granted to Licensee under the Agreement as published here: http://www.mendix.com/legal/US-Agreement-20141101/.

15.17

“Licensee” means the legal entity stated as such in the Order Form that is granted a non-exclusive, non-transferable right to use the App Platform per this License Agreement.

15.18

“Licensee Data” means any electronic information, including but not limited to: any data, information or material, such as posts, comments, documents, project information, application data, user information and account information which is submitted, created, saved, added, uploaded or made available in the Application. For the avoidance of doubt, the Application Model is not part of Licensee Data.

15.19

“Mendix” means Mendix, Inc., a private limited liability company under the laws of Massachusetts (USA), having its registered office at: 268 Summer Street, Boston, MA 02210, USA.

15.20

“Named User” means an individual authorized by Licensee to access the App with unique login credentials which can be used to identity one specific individual, as well as any external system that accesses or is accessed by the App.

15.21

“Order Form” means a document provided by Mendix and signed by Customer which details, amongst others, the services to be provided by Mendix, the applicable usage limitations and the price payable by Customer for those services and the term for which the services are provided.

15.22

“Party” means either Customer, Licensee or Mendix.

15.23

“Parties” means Customer and/or Licensee, and Mendix collectively.

15.24

“Portal User” means a Named User, defined in the Mendix App Platform, who is not an employee of the Mendix licensee, to use a portal App running in a production environment. Named Users as licensed per App can be converted to Portal Users at a ratio of 1:10 within each individual App.

15.25

“Service Level Agreement” or “SLA” means the service level document provided by Mendix which details, amongst others, the service levels as published here: http://www.mendix.com/legal/US-SLA-20121101/.