General terms and conditions of license and delivery

From IQ Messenger BV, established at Pieter Zeemanweg 57, 3316 GZ Dordrecht, The Netherlands (hereinafter referred to as IQ Messenger), and filed with the Chamber of Commerce in Rotterdam under CoC number 56886268, and valid from 1 January 2013.

IQ Messenger develops, delivers, implements, and maintains a software-based communication, messaging, and alerting platform in the broadest sense of the word. IQ Messenger offers its products and services in the form of a one-time purchase (Capex) or via a monthly model (Opex). Products and services are understood to mean the entirety of Software licenses, Software assurance, Equipment, Components, Service & support for the IQ Messenger Messaging alerting platform.

APPLICABILITY

• These terms and conditions apply to the offers as well as the formation, content, and performance of all Agreements concluded between the Client and IQ Messenger.
• Deviating clauses and any general terms and conditions of the Client shall apply only if and to the extent that they have been expressly accepted in writing by IQ Messenger, and then exclusively for the Agreement for which they have been accepted.
• To the extent that the parties have previously entered into an Agreement based on these general terms and conditions, they agree that these general terms and conditions shall also apply to subsequent Agreements between them.

1.0 DEFINITIONS

1.1 “Documentation”

The system help files or written manuals regarding the use of the Software, as well as self-study guides, installation and configuration manuals, and all other instruction or documentation manuals for the Software provided by IQ Messenger and updated from time to time.

1.2 “Error”

Also referred to as a “bug”, it means a demonstrated, reproducible, and confirmed defect in the Software by IQ Messenger that causes it to no longer function (entirely) according to the specified specification(s).

1.3 “Use”

The loading, implementation, utilization, access to, storage, or display of the Software for the processing of information of the Client and for the purpose of the Client’s internal business purposes.

1.4 “Programming”

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

1.5 “License”

The right to use the Software by the permitted number of Individual or concurrent Users or Devices for which the license has been granted.

1.6 “License Holder”

A hardware or software carrier, also known as a license key or dongle, on which the licenses obtained through purchase or the monthly (Opex) model are stored and recorded.

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

General, or specifically built upon request, IQ Messenger software version that adds new functionality to the Software, provides improvements to the functionality of the Software and/or changes to the functionality of the Software, or fixes an Error in the IQ Messenger Software.

1.8 “Devices”

Hardware/devices/peripherals that are permitted by the IQ Messenger software by means of a License and are thereby controlled, monitored, and/or integrated, or information and/or commands provided by devices to the IQ Messenger Software.

1.9 “Client”

Any natural or legal person who enters into an Agreement with IQ Messenger or enters into negotiations regarding the conclusion thereof.

1.10 “Order”

Any assignment from the Client to IQ Messenger, in whatever form.

1.11 “Agreement”

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

1.12 “Support”

All activities related to Software Support as described in these terms and conditions.

1.13 “Service”

The work agreed upon between the Client and IQ Messenger that is performed by IQ Messenger.

1.14 “Confidential Information”

Includes, among other things, information regarding IQ Messenger, its partner companies, internal processes, policies, business strategies, and plans that are not in the public domain, as well as Software, Documentation, training materials, literature, and all related materials of IQ Messenger, technical evaluations, benchmarks, information regarding customers or prospects of IQ Messenger and its products, techniques, designs, formulas, systems, programs, processes, policies, strategies, and plans, as well as all information that is not in the public domain and that is communicated by one of the Parties to the other party.

1.15 “Software Assurance (SWA)”

The right to use substantially functioning Software, the right to obtain the most current version of the Software, the right to report an Error in the Software, and the obligation of IQ Messenger to use best efforts to remedy an Error identified by IQ Messenger.

1.16 “Software Assurance Reference Date”

First day of the new month on which the initially purchased Licenses for a licensee are made available. Licenses purchased later during the 12-month SWA period will have the same SWA Reference Date as the initially purchased Licenses. The SWA reference date is independent of the billing date used by IQ Messenger.

1.17 “Prices”

All prices, unless explicitly stated otherwise, are in Euros and exclusive of VAT and are listed in a Microsoft Excel price sheet or a derivative thereof made available by IQ Messenger. This Excel price sheet is called the IQ Messenger Calculator.

IQ Messenger reserves the right to unilaterally change its pricing and/or price structure without prior written notice and with a notice period of 1 month. The adjusted prices will apply to new or future Orders.

1.18 “Calculator”

An overview document and calculation aid in Microsoft Excel format listing price information for the Software, Licenses, Equipment, and SWA supplied by IQ Messenger. Only the prices listed in the most recent Calculator are valid.

The calculations shown in the Calculator are indicative only. No rights, obligations, and/or liabilities of IQ Messenger can be derived from the calculations, additions, etc. displayed in the Calculator.

1.19 “Interface”

Technical interface for enabling Software and/or Equipment to work together.

2.0 LICENSE AND RESTRICTIONS

2.1 License

Notwithstanding these terms and conditions, IQ Messenger grants the Client a non-exclusive, non-sublicensable, non-transferable right to use the Software during the validity period of the license (as indicated in the Order), exclusively in accordance with the Documentation provided by IQ Messenger, and in accordance with the License as indicated in the Order. Use of the Software is limited to the specific Software as mentioned in the Order. The Client warrants that the Software will be used exclusively in accordance with these terms and conditions and exclusively for the benefit of the Client. Any other Use of the Software is not permitted and constitutes a direct infringement of the issued license.

2.2 No tacit license

Nothing in these terms and conditions shall be construed as creating—by implication, exclusion, or otherwise—a license or other right, except for such licenses and rights as are expressly created by this Agreement.

2.3 Unauthorized use

When the Client enters into a License, the Client undertakes not to install the Software (or parts thereof) on any server other than its own (whether leased or not) servers, and not to grant access to the Software to more persons/devices/simultaneous users than the maximum agreed number purchased or made available on the Licensee by means of the Opex model. Any use other than that expressly stated in these terms and conditions, such as through resale, rental, subcontracting, leasing, or otherwise, is not permitted.

2.4 Copying

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

2.5 Reverse Engineering

The Client is not entitled under this license to receive, use, or examine any source code or design documentation in connection with the Software. Except in those cases where it is authorized to do so by law, the Client shall not in any way attempt (or permit others to attempt) to decipher, back-translate, decompile, disassemble, or otherwise subject to reverse engineering the source code or the underlying ideas or algorithms of the Software.

2.6 Amendment

The Client shall not modify the Software (and shall not permit others to modify it), with the exception of implementing new releases, service packs, and hot fixes that are part of the Support provided by IQ Messenger. The Client shall not remove any notices regarding copyright or other intellectual property rights from the Software (and shall not permit third parties to do so). Furthermore, the Client declares that it will not modify, deactivate, manipulate, and/or block the technical means employed to prevent misuse of the Software or of any functionality included as part of the Software, such as a Licensee.

2.7 Third-party software

IQ Messenger has embedded third-party software in its software or has linked or compiled the software with third-party software (hereinafter “Third-Party Software”). Copyright notices, usage rights, warranty exclusions, limitations of liability, and various other notices regarding the said third-party software are located in the installation steps and the destination folder of the installer and may also be provided separately. The Client declares to have read these terms and conditions and to be aware that it is bound by them, and undertakes to comply with each of these terms and conditions. If and to the extent that these terms and conditions are deemed or declared inapplicable to the relationship between IQ Messenger and the Client for any reason whatsoever, the provisions of these terms and conditions shall remain in full force and effect.

2.8 Software Installation

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

2.9 License exchange guarantee

Exclusively and solely in the event of use of the Licenses in a monthly (Opex) model, the Client has the right to exchange a License of choice for another IQ Messenger License during the agreed period of license use. The condition is that the billing value of the newly desired License must be higher than or equal to the current License value. In the event that the value of the newly desired License is higher than the license already in use, the difference amount will be charged to the Client periodically during the term of the agreement. The Client may make use of this option a maximum of 3 (three) times during the agreed term of the Opex period.

IQ Messenger will charge the Client an administrative fee of € 250 for each exercise of this right by the Client.

2.10 Re-issuance of licenses (re-issue)

By means of an official written and signed document from the Client (and potential end user), IQ Messenger may be requested to reissue the licenses on a Software License Carrier that was previously purchased and paid for. This reissue may be requested in the event that the IQ Messenger Software with Licenses needs to be installed on another server due to a hardware server defect, or when the License Carrier is no longer in good working order (defective).

The document must also state that the old Software Licensee and Licenses are no longer, and will not be, in use in any way after the re-issue has taken place. The Client states that it is aware that if the old Licensee and Licenses are used, this constitutes an unlawful act and an immediately payable penalty applies which is in no way legally challengeable.

The amount of the fine is equal to the total then-applicable gross end-user price of the Licensee and all activated licenses thereon (value) + a 100% surcharge on the value for the unlawful use.

IQ Messenger will charge the Client an administrative fee of € 250 for each exercise of this right by the Client.

3.0 CLIENT OBLIGATIONS

3.1 Obligation

It is the responsibility of the Client to determine whether the Software delivers the desired result, to purchase, install, and operate the computers and operating systems required for the functioning of the Software, to ensure a proper working environment and appropriate utilities for the computers on which the Software runs (collectively referred to as: “Supported Environment”), and to train the employees so that they can operate the Software. The Client acknowledges that the requirements imposed on the Supported Environment are subject to change over time. It is the responsibility of the Client to keep the Supported Environment and the knowledge of its employees up to date and to implement upgrades to the Supported Environment whenever this is useful or necessary to enable the Software to continue running.

3.2 Delivery

After the signed Order for the delivery of the Software from the Client and the acceptance by IQ Messenger have taken place, IQ Messenger will make the Software and the Documentation available in the form of an electronic medium or download. The Software shall be deemed to have been delivered when the access required to download the Software has been provided to the Client or the electronic medium has been sent by post (hereinafter the “Delivery Date”).

3.3 Reimbursements

Unless otherwise agreed, the stated prices are:

• Based on the factual data relevant to the execution of the assignment in the offer or the order confirmation, respectively;
• Based on the levels of purchase prices, wages, labor costs, social and government charges, freight, insurance premiums, packaging, and other costs applicable at the time of the order confirmation;
• Excluding VAT, import duties, other taxes, levies and charges;
• State in Euros;

In the event of an increase in one or more of the cost price factors, IQ Messenger is entitled to increase the Order Price accordingly, except insofar as the Client has already placed its Order for the Products and delivery takes place within three months after the relevant price change. All costs arising from additions and/or modifications to an order by or on behalf of the Client shall be entirely for the account of 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, the Opex model, or other periodic services and/or products will be invoiced prior to the start of each new period. All amounts are in Euros and exclusive of VAT. Payment under the Opex model (monthly model) must be made on the first of the month preceding the month to which it relates. Payment of the monthly amounts will be made by direct debit. Payment under the Capex model must be settled within a maximum of 30 days after the invoice date from IQ Messenger to the Client.

Invoices from IQ Messenger to the Client relating to Software Assurance will be invoiced to the Client on the 1st of the month for the entire upcoming period of 12 months or multiples thereof and must be paid to IQ Messenger within 30 days of the invoice date.

In the event that the Client believes that invoices or invoice amounts are incorrect, the Client shall notify IQ Messenger in writing and with reasons of the disputed invoice or invoice amount within 5 working days. The Client is bound by this at all times and is not released from the obligation to pay the undisputed portion of the invoice in question.

If the Client fails to pay an amount due within the agreed period, the Client shall owe statutory interest on the overdue amount, calculated from the date of the invoice.

If payment has not been made within the period specified in the first paragraph of this article, the Client shall be in default by operation of law from the day that such period has expired, without any notice of default being required. All additional costs relating to the collection of the amount due, such as judicial and extrajudicial costs, including those for legal assistance, shall be borne by the Client. The extrajudicial collection costs to be reimbursed shall be calculated on the basis of the collection rate of the Netherlands Bar Association applicable from time to time.

However, these costs shall amount to at least 250 Euros and are exclusive of the applicable value added tax. In the event of late payment, application for suspension of payment, application for bankruptcy, seizure of all or part of the Client’s Products, or liquidation of the Client’s Products and/or manifestly diminished creditworthiness of the latter, IQ Messenger has the right to consider all Agreements or parts thereof still in force that are required to be performed at that time as dissolved, without any judicial intervention being required. This is without prejudice to its right to claim full compensation in this regard. IQ Messenger reserves the right to offset amounts still owed by the Client against outstanding invoices of IQ Messenger held by the Client.

3.5 Late payment

If the Client fails to pay an amount due within the agreed period, the Client shall owe statutory interest on the outstanding amount, calculated from the date of the invoice. If payment has not been made within 15 days after the stated period, the Client shall be in default by operation of law without the need for a notice of default. In such a case, IQ Messenger is entitled to suspend its support in the broadest sense of the word. This suspension entails, includes, but is not limited to, the following activities, namely: technical support, the provision of updates/upgrades, and continuity at the Client’s premises, which fall within the mutually agreed Opex (monthly) billing model.

Damage, consequential damage and/or liability, in whatever sense, suffered by the Client as a result of the suspension, cessation or termination of the IQ Messenger services due to the Client’s failure to make payment to IQ Messenger, shall be solely and entirely for the account of the Client.

3.6 Excessive use

The Client undertakes to immediately inform IQ Messenger of any changes to the underlying basis for calculating the fees mentioned in these terms and conditions, and shall immediately pay all potentially due additional license and support fees to IQ Messenger, in accordance with the then-applicable Calculator prices.

3.7 No set-off or refund

Fees due under these terms and conditions may under no circumstances be withheld or set off by the Client against amounts owed to him by IQ Messenger.

3.8 Time Schedule

The Client accepts that the time schedule of the Order may be affected if the parties decide to modify the approach, working method, or scope of the Order and the resulting activities during the course of the project. If interim changes in the execution of the assignment arise due to the actions of the Client, IQ Messenger will make the necessary adjustments in consultation with the Client. If this results in additional work, this will be charged to the Client as a supplementary assignment. IQ Messenger is entitled to charge the Client for the extra costs incurred due to changes to the assignment.

3.8 Inspections

To ensure compliance with the Usage Rights granted under this Agreement and the restrictions stated therein, IQ Messenger is entitled to inspect the Client’s relevant documents regarding the use of the Software from time to time, provided this takes place during reasonable working hours. If an inspection reveals that the Client has paid insufficient compensation, the costs of the inspection shall be borne entirely by the Client. Furthermore, IQ Messenger is entitled to charge the Client for any Use of the Software for which full payment has not been received at the then-current Calculator prices.

3.10 Exclusion of liability

Except for the limited warranties referred to 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 guarantee that the Software will meet the Client’s needs or that it will operate uninterrupted or error-free. The Client bears sole responsibility for the results obtained through 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 it exists on the Delivery Date will function substantially for a period of one (1) year after the Delivery Date, provided that all fees have been paid in full, the Client has a current Software Assurance contract, and the Software is used within the Supported Environment. This warranty shall not apply to the extent that an alleged Error has arisen because the Software has been combined with a program, device, or instrument not supplied or supported by IQ Messenger, because of a modification or customization of the Software by or on behalf of the Client, or because the Client has failed to properly install any updates, upgrades, releases, Service Packs, and/or Hot Fixes provided by IQ Messenger.

The liability of IQ Messenger and the Client’s sole remedy for breaches of the limited warranty shall be limited to replacing the Software or data carriers (or part thereof) that do not comply with this limited warranty, or, where replacement is not economically viable in the opinion of IQ Messenger, to refunding a proportionate part of the license fee paid by the Client to IQ Messenger for the relevant Software.

IQ Messenger strongly advises the Client to extend the SWA period after this term so that the Client has access to SWA for the entire period of use of the software.

4.2 Payment SWA

Upon payment of the applicable SWA fees to IQ Messenger, as specified in the Order, the Client is entitled to Software Assurance for the Software. The SWA fee is a fee payable in advance for the contract period for which the SWA is required. IQ Messenger reserves the right to modify the terms of the SWA at any time. The costs for implementation and testing of the software are not included in this fee.

4.3 Duration of SWA

To the extent agreed in the Order, the Client is entitled to SWA for a period of twelve (12) months from the Delivery Date, provided he is not in arrears with the payment of the SWA fees. The SWA period will be tacitly extended by 12 months each time.

IQ Messenger is entitled to increase or decrease the Support Fee once every twelve (12) months. The Parties may choose to terminate further SWA by giving written notice to the other party with a notice period of at least ninety (90) days prior to the end of the then current SWA period. IQ Messenger has the right to obtain a subsequent equal billing moment for SWA periods with unequal expiry dates by means of an adjusted billing. The Client shall not suffer any financial disadvantage in this regard.

When the Client uses the Software in the Opex model, the costs of the SWA are included in the periodically agreed amount and apply for the entire duration of the agreed usage period.

4.4 Employment SWA

The SWA applies to all licenses obtained via the purchase or Opex model and activated on the Client’s Licensee.

4.5 Calculation of SWA value

The value of the SWA period is calculated based on all Licenses present on the Client’s License Carrier on the SWA Reference Date, including Licenses purchased in the interim. The SWA period amounts to 12 months or a multiple thereof. The annual SWA value is calculated based on the sum of: x% of the current gross end-user price of all licenses present on the license carrier.

4.6 Expiration of SWA

Non-payment of SWA automatically leads to deactivation of the SWA. The SWA purchased after a previous SWA period has expired is calculated by summing:

• The outstanding annual SWA periods per License, rounded up per year
• Surcharge of 50% on the amount calculated above

Once all unpaid SWA periods have been settled, use of the SWA, service, support, and software Release, Update, Upgrade, Service Pack, and/or Hot Fix may be made again. In the event that no SWA period has been purchased, the Client’s right to Service, support, assistance, new releases, updates, upgrades, bug fixes, and hot fixes, etc., from IQ Messenger regarding the IQ Messenger Software and services shall lapse.

5.0 INTELLECTUAL PROPERTY AND COPYRIGHTS

5.1

All documents provided by IQ Messenger, such as reports, advice, assignments, designs, sketches, technical documentation, drawings, software, licenses, etc., for the benefit of the Client, may be used by the Client and may be reproduced by the Client for its own use within its own organization. All documents provided by IQ Messenger may not be made public or disclosed to third parties by the Client without the prior permission of IQ Messenger, unless the nature of the provided documents dictates otherwise.

5.2

IQ Messenger reserves the right to use the knowledge gained through the performance of the work for other purposes, provided that no confidential information is disclosed to third parties.

5.3

IQ Messenger grants the Client, solely after obtaining its written consent, the non-transferable and non-exclusive right to use the Software under its own name in accordance with these terms and conditions on the equipment specified in the accompanying documentation and for the number or type of users or connections specified in this documentation. The Software and the accompanying documentation are subject to copyright or other intellectual property rights of IQ Messenger or its licensors. The brand names are also legally protected. IQ Messenger provides the Client with one copy of the Software and the accompanying user documentation. The Client has the right to make copies of the Software solely for security purposes. The Client shall not disclose the Software, nor make it available for inspection or otherwise make it available to any third party. The Client may not alter the Software in any way without the prior written consent of IQ Messenger, unless statutory provisions mandatorily permit such alteration. The source code of the Software is not made available to the Client.

5.4

The Client guarantees that copyrights or other intellectual property rights relating to the Software and user documentation made available to it will not be infringed.

5.5

IQ Messenger will deliver the Software on the agreed data carriers. Unless otherwise agreed in writing, the Client shall be responsible for the installation, implementation, and commissioning. 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 provide a definitive answer regarding acceptance within fourteen days. The Software shall also be deemed accepted at the moment the Client puts it into functional use. A defect that does not seriously impede use shall not constitute grounds for non-acceptance, without prejudice to

IQ Messenger’s attempt to remedy this deficiency. Upon acceptance of the Software, the Clients’ rights regarding the deficiencies that he discovered or could reasonably have discovered during the test period and which he did not report to IQ Messenger in writing shall lapse.

5.6

Only a material deviation from the program specification stated in the accompanying documentation attributable to IQ Messenger shall be considered a Software Deficiency, provided that this deviation is reproducible and occurs in the latest software modification state.

5.7

For a period of three months following delivery or, if an acceptance test has been agreed upon, three months following acceptance, IQ Messenger shall rectify any deficiencies in the Software to the best of its ability. IQ Messenger is entitled to implement temporary solutions in the Software. However, in the event of deficiencies in Software originating from third-party suppliers, only the terms and conditions of these suppliers shall apply, and IQ Messenger is only obliged, upon request, to provide information regarding the new Software versions available at IQ Messenger for which the right of use can be obtained against the customary fees. A new Software modification will only be made available to the extent that IQ Messenger possesses it and may be installed, if desired, at the then-applicable rates and conditions.

5.8

The Client shall make all documents and information in its possession necessary to remedy the deficiency available to IQ Messenger free of charge. If necessary, the Client shall make the Software and Equipment available free of charge for the required time. The Client is responsible for the smooth execution of the work and, in particular, shall observe the safety measures applicable at the site of the remedying of the deficiency and the legally required safety measures, create the conditions necessary within the company for carrying out the work, and make suitable personnel available free of charge.

5.9

If the Client builds upon the Software made available by IQ Messenger and connects to an Interface of the Software, the obligation to remedy a defect extends only to the Interface if and to the extent that the capabilities of the Interface and its specifications have been made known in writing by IQ Messenger.

5.10

If the Client modifies or changes the Software, the obligation to remedy a defect shall lapse, unless the Client was authorized to do so and demonstrates beyond a doubt by means of a test with the unchanged Software that the defect is not causally related to the modification.

5.11

IQ Messenger provides Service to the Client at the rates and conditions applicable at IQ Messenger at the time of execution. This consists of, among other things:

• Service regarding the commissioning and use of the Software;
• Service in identifying and resolving malfunctions in the use of Software and equipment that do not fall under the obligation to remedy a defect;
• Additional copies of the user documentation;
• Activities related to installing, implementing, duplicating, and translating software;
• Advisory, software engineering, and other support activities;
• Performance of work for the purpose of remedying a deficiency within and/or outside the working hours customary at IQ Messenger;
• The diagnosis or rectification of a defect resulting from improper use of Software, an operating error, or other circumstances not attributable to IQ Messenger.

5.12

If the right of use terminates, the Client shall immediately return or destroy the relevant Software and user documentation, including all copies, to IQ Messenger and immediately delete the Software.

5.13

The Client must follow the current instruction documentation of IQ Messenger regarding the use and maintenance of the IQ Messenger software.

6.0 RIGHT OF USE AND TRANSFER OF RISK

6.1

IQ Messenger grants the Client a right of use with respect to the Software. The Client never acquires a right of ownership and shall also never be able to transfer the right of ownership of the Software to the End User. The Client is responsible for properly informing the End User regarding this.

6.2

The risk of loss or damage to the goods that are the subject of the Service passes to the Client or the End User at the moment these are actually delivered to the Client and thereby placed in the possession of the Client or of a third party to be designated by the Client.

7.0 INDEMNIFICATION

7.1

The Client indemnifies IQMessenger against claims from third parties for alleged infringements of property, patent, or copyright, or other intellectual property rights in connection with the execution of the assignment.

7.2

The indemnification referred to in Article 7.1 also applies to third-party software, to software or parts thereof: (i) that has not been supplied by IQ Messenger or has not been used and/or installed correctly; (ii) that has been made wholly or partially to the specifications of the Client; (iii) that has been modified after a Delivery Date, insofar as the alleged infringement relates to that modification; (iv) that is used in combination with other products, processes or materials insofar as the alleged infringement relates to that combination; or (v) for which the Client continues with the alleged infringements after having been notified thereof or after having been informed of adjustments that would have prevented the alleged infringement. The Client also indemnifies IQ Messenger and its officers, directors, assistants and employees against all damages, settlements, attorneys’ fees and expenses in connection with a claim for infringement or unauthorized acquisition.

8.0 REMEDY AGAINST INFRINGEMENT

8.1 Infringement

If the Software or any part thereof becomes the subject of a claim, litigation, or infringement proceedings, or if IQ Messenger deems it likely to become so, IQ Messenger may, at its sole discretion: (i) grant the Client the right to continue using the modified Software or any part thereof, at a possible additional cost to the Client; or (ii) replace the Software or any part thereof—at an additional cost to the Client—in such a way that it no longer infringes; or (iii) in the event that none of the aforementioned alternatives is commercially viable for IQ Messenger, withdraw the Software.

9.0 PROTECTION OF CONFIDENTIAL INFORMATION

9.1 Confidential Information

Each Party shall exercise reasonable care to protect the Confidential Information of the Other Party against unauthorized dissemination. The Client acknowledges that the information contained in the Software is confidential in nature and contains trade secrets, and that the presence of copyright notices on the data carrier containing the Software does not constitute a publication nor otherwise detract from its confidential nature. Neither Party shall (directly or indirectly, by any act or omission) disclose the Confidential Information of the Other Party to third parties without the latter’s prior written consent. Neither Party shall use the Confidential Information of the Other Party for any purpose other than to the extent directly necessary to achieve the objectives intended by these terms and conditions. In particular, the Client undertakes not to use any Confidential Information of IQ Messenger in the context of the development of Software that is comparable to the Software. The Client shall use all reasonable means to ensure the confidentiality of the information, including without limitation: granting employees, assistants, and third parties of the Client access to the Software solely to the extent necessary for the performance of their daily duties towards the Client, and attaching the condition to the granting of such access that such persons comply with the provisions of these terms and conditions. The Client undertakes not to disclose the Software (without the prior written consent of IQ Messenger) to any service provider or any other third party whose primary function is to provide daily management and support for the Software for the benefit of the Client. Notwithstanding the foregoing, either Party may use or disclose the Confidential Information to the extent that such Party is compelled by law to disclose such Confidential Information, provided, however, that the disclosing Party notifies the other Party of such compelled disclosure in advance and provides its full cooperation in the defense of that other Party against such disclosure and/or the obtaining of a judicial order restricting the scope of such disclosure and/or the use of the Confidential Information.

9.2 Security

The Client must facilitate and maintain adequate and up-to-date network security. This network security consists, at a minimum, of the use of a strong personal password to gain access to the network and the IQ Messenger software.
– IQ Messenger has no knowledge of the Client’s work/care processes, clinical or other data, medical/industrial or other equipment/systems or software applications, and incidents that may occur at the Client. IQ Messenger therefore assumes that the Client identifies the information security risks based on the knowledge and skills available to them and incorporates the results of this risk analysis into the requirements imposed on IQ Messenger’s software.

9.3 Irreparable damage

The Parties agree that any actual or threatened breach of the present Article would cause irreparable damage to the non-disclosure Party, for which monetary compensation would not be an adequate remedy; therefore, the Parties agree that in the event of a breach of this Article 9, the non-disclosure Party shall be directly entitled to an injunction, without needing to demonstrate any actual damage suffered, apart from all other remedies available to that Party under this Agreement or in court.

10.0 LIMITATION OF LIABILITY

10.1 Limited liability

IQ Messenger accepts liability up to the amount stated in this Article 10. The total liability of IQ Messenger in connection with these terms and conditions is limited to compensation for direct damage. “Direct damage” is understood to mean costs that would reasonably have to be incurred by the Client to ensure that IQ Messenger’s performance complies with the terms and conditions (however, this damage will not be reimbursed if the Client has cancelled the terms and conditions). The total amount of IQ Messenger’s liability for claims arising from obligation or any other form of liability under these terms and conditions is limited to the license fee actually paid to IQ Messenger. IQ Messenger’s liability for indirect damage, including without limitation consequential damage, loss of profit, lost savings, loss of or damage to data files, punitive damages, pain and suffering, and damage due to business interruption, is entirely excluded. IQ Messenger is not liable for death, psychological or physical injury, or any related material damage to property or (legal) persons.

10.2 Reporting damage

No right to compensation arises unless the Client reports the damage to IQ Messenger in writing as soon as possible after it occurs.

10.3 No authority

Employees, assistants, representatives, or affiliated companies of IQ Messenger are not authorized to bind IQ Messenger to any oral or written promise or guarantee regarding the Software, Documentation, or services provided by the Client, unless expressly agreed otherwise in writing with the Client.

11.0 FORCE MAJEURE

11.1

Neither Party shall be obliged to perform any duty when this is impossible due to force majeure. “Force majeure” shall also be understood to include instances of force majeure at IQ Messenger’s suppliers, deficiencies in the performance of obligations by suppliers prescribed to IQ Messenger by the Client, and defects in objects, materials, or Software of third parties the use of which the Client has imposed upon IQ Messenger.

11.2

Force majeure is understood to include, in addition to what is understood in this regard in law and jurisprudence, all external causes over which IQ Messenger has no control, but which render IQ Messenger unable to fulfill its obligations. This includes strikes within IQ Messenger’s company, illness and/or incapacity for work, natural disasters, and fire.

11.3

During the period that the force majeure continues, the parties may suspend their obligations under the contract, but are obliged to limit the damage resulting from the force majeure as much as possible. If this period lasts longer than two months, either party is entitled to dissolve the contract without any obligation to compensate the other party for damages.

11.4

To the extent that IQ Messenger, at the time of the occurrence of force majeure, has already partially fulfilled its obligations under the honored Order or will be able to fulfill them, and the fulfilled or to be fulfilled portion has independent value, IQ Messenger is entitled to invoice the already fulfilled or to be fulfilled portion separately. The Client is obliged to pay this invoice.

11.5

If a force majeure situation continues for longer than thirty (30) days, the Parties are entitled to terminate this agreement by giving written notice. In that case, what has already been delivered under this agreement will be settled proportionally, without the Parties owing each other anything further.

12.0 DURATION AND TERMINATION

12.1

Subject to the provisions set forth below, an Agreement with IQ Messenger shall only come into effect after IQ Messenger has confirmed an order from the Client in writing, or has commenced the execution of the order. The order confirmation shall be deemed to accurately and completely reflect the Agreement. The Agreement shall be deemed to have come into effect on the date on which the Order is confirmed. The Client is obliged to pay IQ Messenger in accordance with the rates applicable at IQ Messenger from the moment the Client has confirmed the Order in writing, or IQ Messenger has commenced the execution of the order.

12.2

IQ Messenger reserves the right to refuse orders from the Client that were not placed as acceptance of an offer from IQ Messenger, without giving reasons.

12.3

For work for which, due to its nature and scope, no order confirmation is sent, the invoice shall also be considered as the order confirmation.

12.4

Any subsequently made additional agreements or amendments, as well as oral agreements and/or promises made by personnel or on behalf of IQ Messenger by sales representatives, representatives, and other intermediaries, shall bind IQ Messenger only if and to the extent that they have been duly confirmed in writing by it. When an amendment or supplement is agreed upon, it shall apply only to the Agreement in question, unless expressly stipulated otherwise.

12.5

IQ Messenger is entitled, at or after the conclusion of the Agreement, and before (further) performance, to require security from the Client within a maximum period of 2 months that both payment and other obligations will be fulfilled.

12.6

IQ Messenger is authorized to engage third parties in the execution of the Agreement if, in its judgment, this is necessary or desirable, without affecting the quotations provided to the Client. Where possible and/or necessary, IQ Messenger will consult with the Client regarding this.

12.7

The Client is entitled to cancel an Agreement before IQ Messenger has commenced the execution of the Agreement or the execution of the Client’s assignment.

12.8

A Client who cancels an Agreement or assignment owes, by way of compensation, an amount equal to 40% of the total amount obtained for Licenses, SWA, equipment, and work commissioned, unless IQ Messenger demonstrates that the actual damage is higher.

12.9

IQ Messenger shall never be liable for claims by third parties against 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 to voluntarily or by operation of law assign, transfer, or encumber any rights or obligations of the Client under these terms and conditions, including by way of sale of assets, merger, or consolidation, without the prior written consent of IQ Messenger, which consent may not be withheld without valid reason. Without prejudice to the foregoing, these terms and conditions are binding upon and conferred upon the Parties and their respective legal successors.

13.2 No recruitment

The Client undertakes not to recruit or employ any employees of IQ Messenger as employees of the Client during the term of these terms and conditions and for twelve (12) months after the termination of these terms and conditions.

13.3 Divisibility

If any condition or provision of these terms and conditions proves to be void, unlawful, or unenforceable in any respect, the Parties shall, in good faith, make such amendments as to preserve the intentions expressed in these terms and conditions to the extent possible. If the Parties are unable to reach an agreement on such an amendment, the void condition or provision shall be severed from the remaining conditions and provisions, which shall then remain in force and enforceable to the extent permitted by law.

13.4 Choice of law

This Agreement is governed by Dutch law. The District Court of Rotterdam is hereby designated as the competent court.

The United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is expressly excluded.

13.5 Entire Agreement

These terms and conditions (including the Order as well as any additional attachment(s)) constitute the entire agreement between the Client and IQ Messenger and may only be amended in writing with the signature of both Parties. These terms and conditions supersede all oral or written communications made between the Parties in connection with the subject matter of this agreement.

13.6 Announcements

In all cases where the giving of notice or other communication is required or permitted under this Agreement, such notice or communication shall be given by means of personal delivery, registered mail, courier with next-day delivery, or otherwise, and addressed as indicated on the first page of these terms and conditions.

13.7 Headings as reading aids

The titles and headings used in these terms and conditions are intended solely as a reading aid and do not affect the meaning or interpretation of these terms and conditions.

13.8 Export legislation

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