Geschäftsbedingungen

License Terms and Conditions

Of IQ Messenger BV, (hereinafter IQ Messenger), Pieter Zeemanweg 57, 3316 GZ Dordrecht, Netherlands and registered at the Chamber of Commerce in Rotterdam under number 56,886,268, and applicable to all its licenses and services as from 1 January 2013.

IQ Messenger develops, delivers, implements and maintains a software based communication-, messaging-, and alarming platform in the broadest sense. IQ Messenger offers its products and services either as a one-time purchase (Capex) or through a monthly model (Opex). Products and services are defined as the combination of Software licenses, Software assurance, Devices, Parts, Service & support on behalf of the IQ Messenger messaging alarm platform.

APPLICABILITY

• These conditions apply to the offers as well as the preparation, content and performance as concluded in the Agreements between the Client and IQ Messenger.
• Any deviations to these conditions and possible applicability of the terms and conditions of the Client shall only apply if and insofar as they are expressly accepted in writing by IQ Messenger and only for the Agreement for which they have been accepted.
• Where the parties have concluded an agreement on the basis of these terms and conditions, they confirm their consent that these terms and conditions shall also apply to subsequent agreements.

1.0 DEFINITIONS

1.1 „Documentation“

The system- / help files or written instructions regarding the use of the Software, as well as tutorials, installation and configuration manuals and any other instruction or documentation manuals for the Software provided by IQ Messenger including the updated versions.

1.2 „Error“

Also called „bug“, means a demonstrated reproducible and confirmed defect by IQ Messenger in the Software which no longer (completely) functions according to the given specification(s).

1.3 „Use“

The loading, implementation, use, access, storage or display of the Software for the processing of information received from the Client and for the use of its internal business purposes.

1.4 „Software“

The Software for which End User is granted a license and of which IQ Messenger is the owner (or of which IQ Messenger has the license rights), including all documentation and upgrades, updates, service packs and hot fixes.

1.5 „License“

The right to the use of the Software with the permitted number of individual or concurrent Users or Devices for which the license is granted.

1.6 „License Carrier“

A hardware- or software based carrier, also called license key or dongle, to which the licenses are obtained and acquired either by the purchase or the monthly (Opex) model.

1.7 „Release, update, upgrade, hot fix and service pack“

General, or specifically built upon request IQ Messenger software version which gives an addition of new functionality to the Software, improvements in the functionality of the Software and / or provides changes in the functionality of the Software or dissolves errors in the IQ Messenger Software.

1.8 „Devices“

Hardware / devices / peripherals which are authorized through licenses by the IQ Messenger software and as such are controlled, monitored and or integrated, or information and / or commands provided by the devices to the IQ Messenger Software.

1.9 „Client“

Any natural or legal entity who enters into an IQ Messenger Agreement or is in negotiation with IQ Messenger.

1.10 „Order“

Every order of the Client to IQ Messenger in any form whatsoever.

1.11 „Agreement“

Any agreement between IQ Messenger and the Client, any amendment or supplement thereto, and all (legal) acts required for entering into such Agreement.

1.12 „Support“

All activities related to Software Support as defined in these conditions.

1.13 „Service“

The agreed activities between the Client and IQ Messenger which are performed by IQ Messenger.

1.14 „Confidential Information“

Includes amongst others information about IQ Messenger, its affiliates and associates, internal processes, policies, business strategies and plans, which are not in the public domain, and Software, Documentation, training materials, literature and all related materials of IQ Messenger, technical evaluations, benchmarks, information about customers or prospects of IQ Messenger and its products, techniques, designs, formulas, systems, programs, processes, policies, strategies and plans, as well as any information that is not in the public domain and which has been shared as such by one of the Parties to the other party.

1.15 „Software Assurance (SWA)“

The right of the use of essential functioning Software, the right to obtain the most current version of the Software, the right to notification of an Error in the software and the reasonable effort of IQ Messenger to resolve an Error as identified by IQ Messenger.

1.16 „Software Assurance Reference date“

First day of the following month of which the first Licenses were made available for a new license key. Licenses later purchased during the SWA period of 12 months will have the same reference date as the first purchased Licenses. The SWA Reference date is independent from the invoicing standard by IQ Messenger.

1.17 „Prices“

All prices, unless explicitly stated otherwise, are in Euros and exclusive of VAT and are listed in an IQ Messenger Microsoft Excel pricing sheet or a derivative thereof. This Excel pricing sheet is called the IQ Messenger Calculator. IQ Messenger has the right to change its pricing and / or price structure unilaterally without the prior written notice to its Customers within a course of one month. The adjusted rates will apply to new or yet to be agreed Orders.

1.18 „Calculator“

An overview document and calculation tool in Microsoft Excel format in which price information of the Software supplied by IQ Messenger such as Licenses, Devices, SWA is stated. Only the prices as listed in the most recent Calculator are valid. The calculations shown in the calculator are only indicative. No rights can be derived from the calculations, additions etc. as displayed in the Calculator nor can there be any rights, duties and liabilities of IQ Messenger be derived.

1.19 „Interface“

Technical interface for the cooperation of and or between the Software and or Hardware.

2.0 LICENSE AND RESTRICTIONS

2.1 License

Subject to these conditions IQ Messenger gives Client a non-exclusive, not sublicenseable, non-transferable right to use the Software during the term of the license (as specified in the Order), in accordance with the IQ Messenger Documentation whereby the License is provided as specified in the Order. The Use of the Software is limited to the specific Software as specified in the Order. The Client warrants that the Software only will be used in accordance with these terms and exclusively for the Client. Any other Use of the Software is prohibited and is a direct violation of the License issued.

2.2 No implied license

Nothing in these terms shall be interpreted as such – by implication, estoppel or otherwise – that any license or other right arises, apart from the explicitly obtained rights and licenses by this Agreement.

2.3 Unauthorised use

When the client enters into a License, the Client undertakes the obligation not to install Software (or portions thereof) to any other servers than its own (or hired) servers and does not allow access to more users / devices / concurrent users than the maximum agreed number which are purchased or made available via the Opex model to the License carrier. Any Use other than as expressly stated in these terms and conditions, including through resale, rental, outsourcing, leasing or otherwise, is not permitted.

2.4 Copy

The Client may not copy in whole or in part the Software, apart from additional copies for training, testing and acceptance purposes and one or more copies solely for backup or to the extent required by law. When creating a backup copy, the Client shall keep in force all the copyright notices, limitations of liability and other communications on the original Software as provided to the Client.

2.5 Reverse Engineering

The Client is not entitled under the License to take, use or investigate any source code or design documentation relating to the Software. With the exception to those cases where Client is empowered to do so under the law, the Client will not attempt in any way (or allow others to attempt) to translate, decompile or decipher or disassemble the underlying ideas or algorithms of the source code of the Software or otherwise submit to reverse engineering.

2.6 Change

The Customer shall not modify the Software (and not allow others to change it) with the exception of the implementation of new releases, service packs and hot fixes that are part of the support provided by IQ Messenger. The Client will not remove any announcements regarding copyright or other intellectual property rights in the Software (and will not allow third parties to do so). Furthermore, the Client warrants not to modify, disable, manipulate and / or block the technical means employed to prevent abuse of the Software nor any part of the Software which is supplied as functionality, such as a carrier license.

2.7 Third-party software

IQ Messenger has Third-party software embedded in its Software and or has the Software linked or compiled with Third-party software (the „Software of third parties“). Copyright notices, usage, warranty disclaimers, limitations of liability and various other communications relating to the said Third-party software are located in the installation steps and the goal map of the installer and can also be provided separately. The Client declares to have read and understood these conditions and agrees to be bound and commits to be bound by any of these conditions. If and insofar these conditions for any reason shall not be deemed or declared applicable to the relationship between IQ Messenger and Client, the provisions of these General Terms and Conditions will remain in full force.

2.8 Software Installation

IQ Messenger software should be installed, operated and maintained in accordance with customary industry standards for computer, server, LAN / WAN devices and the minimum system and performance requirements set by IQ Messenger.

2.9 License exchange warranty

Only and exclusively in the case when the Licenses are used in a month (Opex) model, the Client is entitled to exchange a License of its choice for another license IQ Messenger, during the agreed period of License use. Upon the condition that the billing value of the new requested License is higher or equal to the current License. In the event that the value of the new desired License is higher than the in-use license, the difference in the amount will be charged to the Client periodically during the remaining term of the agreement. The Client can make use of this option during the agreed term of the Opex period with a maximum of three (3) times. IQ Messenger is allowed to charge to Client an administrative fee of € 250,- exclusive VAT in any case the Client exercises this right.

2.10 License re-issue

With use of a formal written and signed declaration by the Client (and the end user in such case) a re-issue of the Software License Key on the IQ Messenger product, which we was purchased prior to the date of this declaration, can be requested. This in order to re-house the new Software License Key on a different server hardware or because the Software License Key was no longer working in good order.
The declaration must include the statement that the old Software License Key will be discarded and not be re-used in any way at any time. It will be considered unlawfully when the the old Software License is/was still active after the date of re-issue of the new Software License Key and a fine will be immediately due.
Such fine consist of the total enduser price (value) of the Software License Key with all subscribes licenses + 100% penalty of this total value for unlawful use. The Client and enduser understand that this penalty is without prejudice to the possibility of taking legal action against IQ Messenger.
IQ Messenger is allowed to charge to Client an administrative fee of € 250,- exclusive VAT in any case the Client exercises this right.

3.0 CUSTOMER OBLIGATIONS

3.1 Obligation

It is the responsibility of the client to determine whether the software produces the desired result, to purchase, install and operate for the operation of the Software required computers and operating systems, to ensure a good working environment and utilities for computers on which the Software works (collectively: „Supported Environment“) and to train employees so that they can operate the software. The Client is aware that the demands to the Supported Environment requirements in the course of time are subject to change. It is the responsibility of the Client to maintain the Supported Environment and keep the knowledge of its employees up to date and implement Software upgrades to the Supported Environment when appropriate or necessary in order to maintain the Software in good order.

3.2 Delivery

After the signed Order by Client is received for the delivery and the Order is accepted by IQ Messenger, IQ Messenger will make available the Software and Documentation in the form of an electronic carrier or download. The Software shall be deemed to have been delivered if the required access to download the Software is provided to the Client by either electronical carrier or is sent by post (the „Delivery Date“).

3.3 Fees

Unless otherwise agreed the quoted prices are:

• Based on the offer or the order confirmation which contains the relevant facts for the execution of the assignment;
• Based on the applicable purchase prices, wages, labor, social security and government charges, freight, insurance premiums, packaging and other costs as applicable during the order confirmation;
• Exclusive VAT, import duties, other taxes, levies and duties;
• Listed in Euros;

 
In case of an increase of one or more of the cost factors IQ Messenger is entitled to increase the Order price accordingly except where the Client already placed its Order and delivery of the Software takes place within three months after the price change occurs. All costs arising from additions and / or modifications of a contract by or on behalf of Client are to be borne entirely by the Client.

3.4 Payment

IQ Messenger will invoice all fees to the Client on or after the Delivery Date. All fees for Software Assurance, Opex model or other regular services or products will be invoiced prior to the start of each new period. All amounts are in Euros and exclusive of VAT. Payment for the Opex model (monthly model) is due upfront by the Client on the first of each the month. Payment of the monthly amounts will occur through a direct debit (automatische incasso). Payment for the Capex model is due by Client within 30 days after the invoice date.
Invoices to the Client by IQ Messenger relating to Software Assurance are billed upfront to Client on the 1st of the month for the entire upcoming 12-month period or multiples thereof and are due by client to IQ Messenger within 30 days after invoice date. In the event that the Client believes that invoices are incorrect, than the Client shall notify IQ Messenger within 5 working days in writing and motivate the disputed invoice or amount. Client is at all times obligated to pay the undisputed portion of the disputed invoice. If the Client does not fulfill its obligation to pay the invoices, than Client is due the statutory interest, calculated from the date of the invoice.
If Client has not paid the outstanding payments within the specified period as described in this Article, the Client shall be in immediate breach from the day that such period has expired without any notice required by IQ Messenger. All additional costs relating to the recovery of the amounts due such as judicial and extrajudicial costs, including those of legal assistance, shall be borne by the Client. The extrajudicial collection costs will be calculated based on the prevailing collection rates as set by the Dutch Bar Association. These costs will, however, at least amount to 250 exclusive sales tax.
In case of late payment, request for suspension of payments, bankruptcy application, embargo to all or part of the Products the Client or liquidation of Products of the Client and / or obvious reduced creditworthiness of the latter, gives IQ Messenger the right to rescind all outstanding agreements or portions thereof, which have yet to be implemented, without any judicial intervention being required. This is without prejudice to IQ Messengers right to claim full compensation from Client. IQ Messenger reserves the right to settle amounts that the client is still owed to IQ Messenger against accounts which are outstanding by IQ Messenger to the Client.

3.5 Late payment

When the Client is any amount due, IQ Messenger is entitled to charge the Client statutory interest, calculated from the date of the invoice to which the amount is due. If payment is not made after the time limit set within 15 days, the Client shall be in immediate breach without any notice of default being required. IQ Messenger is entitled in such case, to suspend its support in the broadest sense of the word. This suspension covers and includes but is not limited to the following activities, namely, technical support, providing updates / upgrades and continuity for the Client which (monthly) billing model fall into the mutually agreed Opex.
Any damage, consequential damage and or liability in any way whatsoever, suffered by the Client as a result of the suspension, discontinuation or termination of the IQ Messenger services by non-payment performance of the Client to IQ Messenger, are solely and fully to the expense of the Client.

3.6 Excessive use

The Client will immediately inform IQ Messenger in case of changes in the underlying basis for the calculation of the fees referred to in these conditions, and is immediately due to IQ Messenger all possibly owed additional license and support fees, in accordance with the then prevailing Calculator prices.

3.7 No credit or refund

Fees under these Terms due by Client may in no case be withheld or set off against amounts owed by IQ Messenger to the Client.

3.8 Timing

The Client accepts that the time schedule according to the Order may be affected if parties decide to change the approach, method or scope of the Order and the resulting work thereof. If by act of the Client changes occur in the execution, IQ Messenger will in consultation with the Client make the necessary adjustments. If this leads to additonal work, this extra work will be charged accordingly. IQ Messenger is entitled to charge the additional costs of the amendment to the contract and or work to the Client.

3.9 Inspections

To ensure compliance with the Terms of Use granted under this Agreement and the limitations specified therein IQ Messenger is entitled to inspect the relevant documents of the Client with respect to the Use of the Software from time to time, provided that this takes place during reasonable hours. If an inspection reveals that the Client has paid too little compensation the cost of such inspection shall be borne solely by the Client. Furthermore, IQ Messenger is entitled to charge to Client every Use of the Software for which no full payment was received, at the then prevailing prices on the IQ Messenger Calculator.

3.10 Exclusion of liability

Except for the limited warranties provided in this article and to the extent permitted by applicable law, the Software is provided „as is“ without any express or implied warranty of any kind. IQ Messenger does not warrant that the Software meets the needs of the client or that it will work uninterrupted or without error. The customer is responsible for the results achieved with the Use of the Software.

4.0 SOFTWARE ASSURANCE (SWA) AND LIABILITY

4.1 Software Assurance.

IQ Messenger warrants to the Client that the Software as presented at the Delivery Date for a period of one (1) year after the Delivery Date will function substantially provided that all fees are paid in full, the Client has a current contract for Software Assurance and the software is used within the Supported environment. This warranty does not apply as far as an alleged error arose because the Software is combined with a not provided nor supported by IQ Messenger program, device or instrument, or is modified or has customized the Software by or on behalf of the Client, or because the Client has failed to properly install the updates, release, Service Pack and / or Hot Fix provided by IQ Messenger.
The liability of IQ Messenger and the sole remedy for the Customer for violation of the limited warranty is limited to replacement of the Software or data carriers (or portion thereof) that do not meet this limited warranty, or where replacement at the discretion of IQ Messenger is not economically meaningful, refund of a proportion of the license fee paid by the Client only for the relevant Software. IQ Messenger strongly recommends extending the SWA after the initial period so that throughout the period of use of the Software the Client has the SWA at its disposal.

4.2 Payment SWA

After payment of the applicable fees of the SWA to IQ Messenger, which are mentioned in the Order, the Client is entitled to Software Assurance for the Software. The SWA fee is a fee that is payable upfront to the contract for which the SWA is required. IQ Messenger reserves the right to change the terms of the SWA at any time. The cost of implementation and testing of the software are not included in this fee.

4.3 Duration SWA

Insofar as agreed in the Order, the Client has the right to the SWA as of the purchase, provided he has no backlog with the payment of fees SWA, for a period of twelve (12) months from the Delivery Date.
IQ Messenger is entitled to increase or decrease the Support Fee once every twelve (12) months. The Parties may choose to stop by written notice to the other party for a period of at least ninety (90) days before the end of the then current period SWA. Furthermore IQ Messenger has the right to invoice SWA periods which have an uneven expiration date via the same yearly subsequent date to synchronize the invoicing of the different SWA. The Client shall hereby not suffer any financial loss. When the Client uses the Software according to the Opex model, the cost of the SWA are valid for the entire duration of the agreed period of use.

4.4 Applicability SWA

The SWA is applicable to all licenses which are purchased or obtained via the Opex model and activated on the Carrier License of Client.

4.5 Calculation SWA value

The value of the SWA period is calculated based on the Licenses on the License key of the Client at the SWA reference date, including Licenses purchased during the past 12 months. The total SWA period is 12 months or a multiple of 12 months. The yearly SWA value is calculated based on the sum: x% of the gross current end user price of all Licenses present on the License key.

4.6 Expiration of SWA

Non-payment of the SWA automatically leads to de-activation of the SWA. The SWA which is purchased after a previous SWA period has been expired is calculated by the sum of:

• The outstanding yearly SWA periods per License, rounded up annually
• Raise of 50% on top of the amount as calculated above

 
After all unpaid SWA periods are fulfilled, the Client can use again the SWA, service, support and software Release, Update, Upgrade, Service Pack and / or Hot Fix. In case there is no SWA period purchased than any right of the Client to Service, support, new releases, updates, upgrades, bug fixes and hot fixes etc. of IQ Messenger to the IQ Messenger Software and services will expire.

5.0 Intellectual Property and Copyrights

5.1

All documents which have been provided by IQ Messenger, such as reports, opinions, orders, designs, sketches, drawings, technical documentation, Software, licenses, etc. for the Client, may be used by the Client and Client is allowed to multiply exclusively for the purpose of personal use in its organization. All provided documents by IQ Messenger shall not be published, or disclosed to third parties, without prior permission from IQ Messenger, unless the nature of the documents provide otherwise.

5.2

IQ Messenger reserves the right to use the obtained knowledge during the execution of the services for other purposes, in so far no confidential information is disclosed to third parties.

5.3

IQ Messenger, grants only after its written consent to the Client a non-transferable and non-exclusive right to use the Software as specified in the documentation under its own name to the dedicated devices, in accordance with these terms and the type and or number of users or requirements as indicated in the documentation. The Software and accompanying documentation are subject to copyright and or other intellectual property rights of IQ Messenger or its licensors. The trademarks are protected according to the law. IQ Messenger provides Client one copy of the Software and the accompanying user documentation. Client has the right to make copies of the Software exclusively for security purposes. Client shall not disclose or provide access or otherwise make available to any third party the Software. Client shall not alter the Software in any way without the prior written consent of IQ Messenger, unless mandatory statutory provisions so permit. The source code of the Software shall not be made available to the Client.

5.4

The Client warrants that copyright or other intellectual property rights relating to the Software made available to him and user documentation will not be violated.

5.5

IQ Messenger shall deliver the Software to the information carriers. Client is responsible, unless agreed in writing, for the installation, implementation and activation. If an acceptance test has been agreed, the test period shall be fourteen days after delivery. The Software shall be deemed accepted if the Client does not give any confirmation regarding the acceptance within fourteen days. The Software is also considered as accepted as soon as the Client uses the Software according to its functionality. A shortcoming that does not severely impedes the use, constitutes no ground for non-acceptance, without prejudice of IQ Messenger’s attempt to remedy this shortcoming. With the acceptance of the Software Clients rights lapse in respect of the deficiencies he discovered during the test period or reasonably could have discovered and which he did not reported to IQ Messenger in writing.

5.6

A defect in the Software only applies if IQ Messenger can be attributed the substantial deviation from the program specification as mentioned in the documentation, provided that such derogation is reproducible and occurs in the latest software modification mode.

5.7

For a period of three months after delivery or, if an acceptance test has been agreed, three months after acceptance, IQ Messenger shall do its utmost to restore any shortcomings in the IQ Messenger Software. IQ Messenger is entitled to make workarounds in the Software However, in the event of deficiencies in the Software caused by third-party suppliers, only the conditions of these suppliers will be applicable and IQ Messenger will only be obligated to provide information about the new Software Versions present at IQ Messenger, for which, against the standard applicable fees, the right of use can be obtained. A new Software modification is only made available to the extent IQ Messenger has one available and can be optionally installed against the prevailing rates and conditions.

5.8

Client shall make available free of charge to IQ Messenger all present necessary documents and information to remedy the deficiency. If necessary, the Client shall make available free of charge to IQ Messenger the software and hardware. Client is responsible for prompt execution of the services and in particular the Client will take the legally required safety precautions for the solution of the deficiency and, create the necessary work conditions in the company and will make available the appropriate personnel free of charge.

5.9

If the Client continues to build on the Software made available by IQ Messenger and thereby connects to an Interface of the Software, than the obligation to resolve a shortcoming to the Interface by IQ Messenger is only applicable, if and insofar the specifications and the possibility of the Interface have been shared with IQ Messenger by Client in writing.

5.10

If the Client modifies or alter the Software, the obligation of solving the shortcoming by IQ Messenger becomes void, unless the Customer was authorized to do so and by means of a test with the unmodified Software undoubtedly shows that the failure is not caused by the modification. If the term as described in clause 4.3 has expired than IQ Messenger is only obligated to solve any shortcomings if parties have a support agreement in place.

5.11

IQ Messenger grants to Customer Service against the rates and conditions applicable at the time of execution. This includes:

• Service at commissioning and use of the Software;
• Service at the identifying and rectifying disorders in the use of the Software and devices that do not fall under the obligation to remedy a shortcoming;
• Additional copies of the user documentation;
• Work on install, deploy, duplicate and translate of the Software;
• Advisory, Software-engineering and other support activities;
• Execution of work for the elimination of a shortcoming within and or outside the normal working hours of IQ Messenger;
• The diagnosis or remedy of a shortcoming due to improper use of Software, an operating error or other circumstances not attributable to IQ Messenger.

5.12

If the Use right ends, Client will immediately return to IQ Messenger all applicable Software and user documentation including all copies and destroy or delete the Software immediately.

5.13

Client must use the most current instructional IQ Messenger documentation with respect to proper use and maintenance of the IQ Messenger software.

6.0 Right of Use and Transfer of Risk

6.1

IQ Messenger entitles the Client the right of Use of the Software license. Client shall never acquire an intellectual property right and shall never be entitled to transfer the intellectual ownership of the Software to the End User. Client is responsible for properly informing the End User in this regard.

6.2

The risk of loss or damage to the goods which are subject of the Service shall pass to the Customer or End User as soon as the Service is actually delivered to the Client and as such has become in the influence of the Client or a designated third party by the Client.

7.0 INDEMNIFICATION

7.1

The Client indemnifies IQ Messenger against claims by third parties for alleged infringement of property, patents or copyrights, or other intellectual property rights in connection with the performance of the contract.

7.2

The indemnity referred to in Article 7.1 also applies to Software or portions thereof which: (i) have not been supplied by IQ Messenger and or is not installed nor used correctly. (Ii) is made fully or partly on the specifications of the Customer, (iii) was changed after a delivery date, as far as the alleged infringement relates to that change, (iv) is used in combination with other products, processes or materials as far as the alleged infringement relates to the combination, or (v) the client proceeds the alleged infringements while he is informed of such infringements, and changes to prevent the infringements have been suggested. The Client indemnifies also IQ Messenger and its officers, directors, assistants and employees from all damages, settlements, attorney fees and expenses in connection with any action for infringement or unauthorized acquisition.

8.0 REMEDIES AGAINST INFRINGEMENT

8.1 Infringement

When the Software or any part thereof becomes subject to a claim, suit or infringement or it will be, in the opinion of IQ Messenger, than Messenger may at its choice replace the Software or any part thereof – at extra cost for the client – to make it non-infringing.

9.0 PROTECTION OF CONFIDENTIAL INFORMATION

9.1 Confidential Information

Each Party should try with reasonable care to protect the confidential Information of the other party against unauthorized disclosure. The Client is aware that the information in the Software is confidential in nature and contains trade secrets and that the presence of copyright notices on the data carrier with the Software does not constitute publication or otherwise prejudice the confidentiality thereof. Neither Party shall (directly or indirectly by any act or omission) disclose the Confidential Information of the other party to third parties without its prior written consent. Neither Party will use the Confidential Information of the other party for any other purpose other than to achieve the objectives. The Client commits not to use Confidential Information of IQ Messenger in the context of development of its own Software which is similar to the Software of IQ Messenger. The Client must use all reasonable efforts to ensure, without limitation, the confidentiality of information; employees, assistants and third parties of the Client will only been given access to the Software as far as this is necessary for the performance of their daily duties to Client, and subject to the grant of this access such persons shall comply with the provisions of these terms and conditions. The Client commits that it shall not disclose the Software (without the prior written consent of IQ Messenger) to any service bureau or other third party whose primary function is providing the daily maintenance and support of the Client software. Notwithstanding the foregoing, either Party may use or disclose the Confidential Information as far as that Party is legally forced or bound by law disclose the Confidential Information, upon the condition that the disclosing party this forced disclosure a priori informs the other party and will give its full cooperation in the defense of the other Party against such disclosure and / or obtaining a court ruling to limit the scope of such publication and / or use of the Confidential Information.

9.2 Security

Client needs to provide and maintain a good and up to date network security. This includes the use of a strong personalized password to gain access to the network and the IQ Messenger software.
IQ Messenger has no knowledge of the clients working processes, clinical records, operational devices/systems, software systems/applications and or any incidents that may or have occurred at the client. It is the clients responsibility that data/information security risks are identified based on it’s knowledge and experience. This knowledge has been taken into account by the client and been reviewed and agreed by the client in relation to the IQ Messenger software.

9.3 Irreparable harm

The parties agree that any actual or threatening breach of this article could inflict irreparable harm to the non-disclosing party, for which monetary damages would not be an adequate remedy; therefore, the Parties agree that in case of violation of this article 9, the non-disclosing Party shall be directly entitled to an injunction, without the obligation to prove actual damage, apart from all other legal remedies which that party is entitled to under this Agreement or by law.

10.0 LIMITATION OF LIABILITY

10.1 Limitation of Liability

IQ Messenger accepts liability up to the amount referred to in this article 10. The total liability of IQ Messenger associated with these conditions is limited to compensation of direct damage. With „Direct damage“ is meant the following: (i) costs that would reasonably be made by Client to ensure that the performance of IQ Messenger fulfills the agreed conditions (the damage will not be compensated if the client has canceled the terms and conditions). The total liability of IQ Messenger and its third parties arising out of claims under these conditions related to contract, tort or any other type of liability, is limited to the actually paid license fee by Client to IQ Messenger. The liability of IQ Messenger for indirect damage, including, without limitation, consequential damages, lost profits, lost savings, loss of or damage to data, penalties, vindictive damages and damages out of business interruption are completely excluded. IQ Messenger is not liable for death, mental or physical injury or any related material damages to matters or (legal) persons.

10.2 Notification of damage

There will be no right to compensation unless the Client reports the damage as soon as possible after the occurrence in writing to IQ Messenger.

10.3 No authority

Employees, servants, agents or affiliates of IQ Messenger have no authorization to bind IQ Messenger to any oral or written representation or warranty relating to the Software, Documentation or provided services.

11.0 FORCE MAJEURE

11.1

Neither Party is obliged to fulfill a duty when this has become impossible due to force majeure. „Force majeure“ shall also include cases of force majeure by the suppliers of IQ Messenger, deficiencies in the performance of obligations by suppliers prescribed by the Client to IQ Messenger and defects in objects, materials or Client software from third parties whose use to IQ Messenger is imposed.

11.2

Force majeure means in addition to what is included in the law and jurisprudence, all external causes, to which IQ Messenger cannot exert any influence, which prevents IQ Messenger to fulfill his obligations. Strikes in the company of IQ Messenger, illness and / or disability, natural disasters and fire are also included.

11.3

Parties may during the period of force majeure suspend the obligations under the contract, but are obligated to limit the damage caused by force majeure as much as possible. If this period lasts longer than two months, either party shall be entitled to terminate the contract without any obligation to pay damages to the other party.

11.4

To the extent that IQ Messenger at the time of the occurrence of force majeure has honored partially or in full its obligations under the agreed Order, IQ Messenger is entitled to invoice these performed services. The Client is obligated to pay these invoices.

11.5

If a force majeure situation lasts longer than thirty (30) days, the Parties shall be entitled by written notice to terminate this Agreement. In such case, the already supplied licenses and services under this Agreement will be concluded and made payable by Client without any further obligations or damages due to each other.

12.0 TERM AND TERMINATION

12.1

Except as provided below, an Agreement with IQ Messenger is only effected after IQ Messenger has confirmed in writing an assignment from Customer or the performance of the Order has begun. The order confirmation is considered to give the complete and correct commitment of the Agreement. The Agreement shall be deemed to have been concluded on the date of the order confirmation. In case IQ Messenger on request of Client has started any performance before the Agreement was formally concluded, the Client is obligated to pay in accordance with the rates at that time applicable at IQ Messenger.

12.2

IQ Messenger reserves the right to decline Orders from the Client without cause.

12.3

For work which by their nature and scope no order confirmation is sent, the invoice will be deemed as confirmation.

12.4

Any subsequent supplementary agreements or amendments and oral agreements and / or commitments by staff or on behalf IQ Messenger given by sellers, agents and other intermediaries, shall only bind IQ Messenger if and insofar as it is confirmed in writing by IQ Messenger. If a change or addition is agreed upon, this shall only apply to the applicable Agreement, unless expressly provided otherwise.

12.5

IQ Messenger is entitled within two months after the conclusion of the Agreement to demand security from Client that it shall fulfill both its payment and other obligations before IQ Messenger continues (further) performance.

12.6

IQ Messenger is authorized, if it considers necessary or desirable to make use of third parties without affecting the quotations provided to Client. If possible and / or necessary IQ Messenger shall inform Client on this matter.

12.7

The Client is entitled to cancel an Agreement before IQ Messenger has started the performance of the contract or the Order of Client taking into account Article 12.8.

12.8

If Client cancels a contract or Order, client is due by way of damages a sum equal to 40% of the total licenses, SWA, devices and operations obtained in command unless IQ Messenger demonstrates that the actual damage is higher.

12.9

IQ Messenger is not liable for claims of third parties to the Client as a result of the cancellation of the Agreement or the assignment.

13.0 GENERAL PROVISIONS

13.1 Assignment

The Client is not entitled voluntarily or by law to assign, transfer or encumber any rights or obligations of the Client under these conditions, nor by way of sale of assets, merger or consolidation, without the prior written consent of IQ Messenger, which consent shall not be withheld unreasonable. Notwithstanding the foregoing, these conditions are binding and it seeks to the benefit of the Parties and their respective successors.

13.2 No recruitment

The Client shall not recruit or hire any employees of IQ Messenger during the term of the Agreement and or Order, and twelve (12) months after the termination of the Agreement and or service.

13.3 Severability

If any term or provision of these terms to any extent is invalid, unlawful or unenforceable, the Parties will in consultation make such changes that the expressed conditions and intentions will be maintained as much as possible. If the parties cannot agree to such a change, than the invalid term or provision is severed from the remaining terms and conditions, which will then remain in force and be in effect as far as the law extends.

13.4 Choice of Law

This Agreement is governed by Dutch law. The Rotterdam District Court is hereby designated as the competent court. The Convention of the United Nations with regard to contracts for the International Sale of Goods (Vienna Convention) is expressly excluded.

13.5 Entire Agreement

These terms and conditions (including the Order as well as additional attachment(s)) constitute the entire agreement between the Client and IQ Messenger and can exclusively be changed by written agreement and signature of both Parties. These conditions replace all occurring oral or written communications between the Parties relating to the subject matter of this Agreement.

13.6 Notices

In all cases where under this agreement a notice or other communication is required should be submitted by personal delivery, registered post or, courier with delivery the next day.

13.7 Headings

The headings used in these terms are provided as a reading aid only, and do not affect the meaning or interpretation of the conditions.

13.8 Export Laws

The Client undertakes not to export the Software or Documentation in violation of any U.S. or other applicable export laws.