End-User Software License Terms & Conditons

Please read these terms & conditions carefully before purchasing, installing or using Dynalogic’s Birds BI for Fabric Workload software (hereafter: Dynalogic’s software). By installing or using Dynalogic’s software, licensee agrees to be bound by the terms of this limited use license.

1. Definitions

1.1. The following capitalized terms will have the following meanings whenever used in this Agreement.

2. Licenses

2.1. In accordance with these End User License Terms & Conditions, Dynalogic grants the Customer the License, with regard to the Software and the Documentation as further described in these End User License Terms & Conditions, as the Customer hereby receives the License from Dynalogic. Based on the License, Customer is entitled to use the Software as set out in these End User License Terms & Conditions.

2.2. The Customer is perfectly aware and agrees that the scope of this License (and these End User License Terms & Conditions) is strictly limited to Dynalogic’s BIRDS BI Fabric Workload software (“The Software”), which has to be considered as a (free of charge) trial/demo version of the Birds BI for Fabric software. Accordingly, the Customer is fully aware that the Software is only one (SaaS-) component of the Birds BI for Fabric software. Given the limited scope of the License, the Customer fully understands and agrees that the Software’s functionalities are limited and that under this License no supporting services are being provided by Dynalogic. If the Customer wants to enjoy other functionalities and additional supporting services, the Customer will have to purchase an additional license. For the purchase and use of such other software, separate terms and conditions (other than these End User License Terms and Conditions), will apply.

2.3. Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. 

2.4. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software. 2.5. Dynalogic shall provide the Documentation to Customer, by providing a link through which the Documentation can be freely consulted.

3. Terms of use

3.1. Customer is during the Term permitted to load, display, or execute the Software, insofar as this is in accordance with the intended use of the Software.

3.2. The License has the following limitations:

• The Software, of which the license is free of charge, has to be considered as a (free) trial/demo version of the Birds BI for Fabric software. Therefore the Software is only one (SaaS-) component of the Birds BI for Fabric software, of which the functionalities are limited and no supporting services are being provided by Dynalogic. If the Customer wants to enjoy other functionalities and additional supporting services, the Customer will have to purchase an additional License. For the purchase and use of such other software, separate terms and conditions, other than these End User License Terms and Conditions, will apply.
• Customer is not permitted to reconstruct the source code of the Software by means of reverse engineering. If Customer needs information to achieve interoperability of the Software with computer software of Customer himself or third parties, Customer shall request Dynalogic in writing and stating reasons for the necessary information. Dynalogic will then inform Customer within a reasonable period of time whether Customer can obtain the requested information and the conditions under which it is provided; (c) Customer shall not modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software
• Customer shall not modify, allow third parties to exploit the Software; or reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.

4. Enhancement 

4.1. Dynalogic provides Software Enhancement as agreed in these End User License Terms & Conditions (“Enhancement”). 

4.2. Enhancement of the Software includes: making available Product Updates, Bug fixes and Documentation updates. All Product Updates , Bug fixes and Documentation updates will be delivered automatically, without requirement of Dynalogic’s additional interventions. 

4.3. Dynalogic provides Bug fixes only for bugs in unaltered Software that were delivered by Dynalogic to Customer. It is understood that Software cannot be altered. Anyway, Bug fixes on altered Software are the responsibility of Customer. 

4.4. Dynalogic is not responsible and gives no warranties or guarantees for front-end BI (Business Intelligence) tools that Customer will use for data presentation and analysis. These are subjected to their manufacturer license terms.

4.5. Before Dynalogic can rely on any problem relating to the Software, information of the problem is required. Whenever a problem is placed, the following information should be provided: 

• Customer company name;
• Customer contact person;
• Customer contact person’s phone number and email address; 
• Any program error messages associated with the problem;
• A detailed description of the problem
• Any steps you have taken in an attempt to solve the problem.

5. Fees & reimbursement 

5.1. As the Software is only a demo-component of the Birds BI for Fabric software (with limited functionalities), the use of Birds BI Fabric Workload is free of charge. If the Customer wants to purchase other Birds BI for Fabric software components a license fee will be due, according to the applicable tariffs and Dynalogic payment terms.

6. IP & feedback

 6.1. Dynalogic retains all right, title, and interest in and to the Documentation and Software, including without limitation Product Upgrades. Customer recognizes that the Software and its components are protected by copyright and other laws.

6.2. By accepting these End User License Terms & Conditions, Customer hereby grants Dynalogic a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Dynalogic during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Dynalogic’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 7 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Dynalogic’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)

7. Confidential information

7.1. Customer shall keep and treat materials, Documentation and/or information of Dynalogic as strictly confidential in case such materials, Documentation and/or information is/are marked as confidential or strictly confidential or, in case such materials, Documentation and/or information is/are not marked as confidential or strictly confidential when it could have reasonably understood that it should have been marked as confidential or strictly confidential.

7.2. Confidential Information refers to the following 

• any document Dynalogic and/or Dynalogic’s reseller marks “Confidential”; 
• any information Dynalogic and/or Dynalogic’s reseller orally designates as “Confidential” at the time of disclosure;
• the non-public features and functions of the Software, as disclosed by Dynalogic and/or Dynalogic’s reseller; and 
• any other non-public, sensitive information Customer should reasonably consider a trade secret or otherwise confidential.

7.3. Notwithstanding the foregoing, Confidential Information does not include information that:

• is in Customer’s possession at the time of disclosure; 
• is independently developed by Customer without use of or reference to Confidential Information; 
• becomes known publicly, before or after disclosure, other than as a result of Cusyomer improper action or inaction; or 
• is approved for release in writing by Dynalogic or Dynalogic’s reseller. Customer is on notice that the Confidential Information may include Dynalogic and/or Dynalogic’s reseller valuable trade secrets; (v) Required by applicable law.

7.4. Customer shall be relieved of its confidentiality obligations regarding confidential information for which it can document that it was publicly known or has become publicly known other than by breach of the obligations under the Software Agreement, or is hereafter made available to it by a third Party having a right to do so.

7.5. The obligations of the Parties set forth in this Article shall survive the expiration or termination of the Software Agreement.

7.6. With respect to each item of Confidential Information, the obligations of this Article will terminate three (3) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Dynalogic and/or Dynalogic’s reseller trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of the Term, Customer shall return all copies of Confidential Information to Dynalogic and/or reseller or certify, in writing, the destruction thereof.

7.7. These End User License Terms & Conditions do not transfer ownership of Confidential Information or grant a license thereto. Dynalogic and/or Dynalogic’s reseller will retain all right, title, and interest in and to all Confidential Information.

7.8. Customer shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by the Software Agreement (the “Purpose”). Customer:

• shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article7; and
• shall not disclose Confidential Information to any other third party without Dynalogic and/or Dynalogic’s reseller prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Dynalogic and/or Dynalogic’s reseller of any misuse or misappropriation of Confidential Information that comes to Customer attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Dynalogic and/or reseller prompt notice of any such legal or governmental demand and reasonably cooperate with Dynalogic and/or Dynalogic’s reseller in any effort to seek a protective order or otherwise to contest such required disclosure, at Dynalogics and/or Dynalogic’s resellers expense.

8. Software audit 

8.1. During the Term and at any time during the twelve (12) months after its termination, Dynalogic may audit Customer’s use of Software on ten (10) days’ advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the Software. Such audit shall not unreasonably interfere with Customer’s business activities. If Dynalogic discovers unauthorized use or other exploitation of the SoftwareCustomer shall reimburse Dynalogic for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Dynalogic may have. Dynalogic may not conduct an audit more than once per year.

9. Representations & warranties 

9.1. Dynalogic represents and warrants that, during the Term, the Software will perform materially as described in its Specifications.

9.2. Dynalogic represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software set forth in these End User License Terms & Conditions without the further consent of any third party. 

9.3. Dynalogic’s representations and warranties in Article 9.1 and 9.2 do not apply to the extent that the infringement arises out of any of the conditions listed in Articles 10(a) through (e) below. In the event of a breach of the warranty in this Article 9, Dynalogic, at its own expense, will promptly take the following actions: 

• Secure for Customer the right to continue using the Software; 
• Replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications; or 
• refund of percentage of the License Fee paid for the Software for every month remaining in the Term, in which case Dynalogic may terminate any or all Customer licenses to the Software granted in these End User License Terms & Conditions and require return or destruction of copies thereof.

9.4. In conjunction with Customer’s right to terminate for breach where applicable and the provisions of Section 10.1 below (Indemnified Claims), the preceding sentence states Dynalogic’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Subsection 9.1(b) and for potential or actual intellectual property infringement by the Software.

9.5. Customer represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Software Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by these End User License Terms & Conditions.

9.6. Except for the express warranties in sections 9.1 and 9.2 above, Dynalogic makes no warranties, either express or implied, including without limitation any implied warranty of merchantability or fitness for a particular purpose. Dynalogic does not warrant that the Software will perform without error or that it will run without immaterial interruption. 

9.7. Dynalogic provides no warranty regarding, and will have no responsibility for, any claim arising out of: 

• a modification of the Software made by anyone other than Dynalogic, unless Dynalogic approves such modification in writing; or 
• use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.

10. Indemnification 

10.1. During the Term Dynalogic shall defend and indemnify Customer and Customer’s Associates (are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. 

10.2. Dynalogic’s obligations set forth in this Section 10.1 do not apply to the extent that an Indemnified Claim arises out of:

• Customer’s breach of these End User License Terms & Conditions; 
• Revisions to the Software made without Dynalogic’s written consent
• Customer’s failure to incorporate Product Upgrades that would have avoided the alleged infringement; 
• Dynalogic’s modification of Software in compliance with specifications provided by Customer, or; 
• Use of the Software in combination with hardware or software not provided by Dynalogic. 

10.3. In the event of an Indemnified Claim, Dynalogic may exercise the remedies in Article 9.3 (i) through (iii) above, including without limitation its right therein to terminate the Temporary License and require return of the Software. 

10.4. Dynalogic’s obligations pursuant to Section 10.1 above will be excused to the extent that Customer’s or any of Customer’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Dynalogic will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. 

10.5. The maximum costs that Dynalogic will reimburse in the context of the indemnification will in no case exceed € 50,000 (fifty thousand euros).

11. Limitation of liability 

11.1. Dynalogic’s total liability for claims under or related to the Software Agreement (including these End User License Terms & Conditions) shall be limited to compensation for direct damage which shall not, however, in any case exceed Euro 50,000 (fifty thousand Euros). "Direct damage" shall solely mean: 

• Reasonable expenses which Customer would have to incur to make Dynalogic performance conform to this End User License Agreement; 
• Reasonable expenses which Customer has incurred out of necessity to keep an old application and related facilities operating longer because Dynalogic did not provide delivery on a firm delivery date which was binding for it, minus any savings resulting from the delay in delivery;
• Reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of this Article; d) Reasonable expenses incurred to prevent or mitigate damage, insofar as Customer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of this Article.

11.2. Dynalogic liability for material damage to objects shall never exceed Euro 50,000 (fifty thousand Euros).

11.3. Dynalogics liability for consequential damage, consequential loss, lost profits, lost savings, loss of goodwill, damage through business interruptions, mutilation or loss of data, damage relating to the use of objects and all other forms of damage or injury besides those mentioned in article 11.1 and 11.2, on any account whatsoever, are hereby excluded.

11.4. The limitations mentioned in the preceding paragraphs of this Article shall not apply if and insofar as the damage or injury is the result of intentional acts or gross negligence by Dynalogic.

11.5. Dynalogics liability because of a failure to perform this End User License Agreement shall in all cases only arise if Customer without undue delay and properly provides a written notice of default to Dynalogic, with a reasonable time period for remedying the failure being given and Dynalogic still fails to perform its obligations after that period as well. The notice of default must contain a description of the breach which is as complete and specific as possible, so that Dynalogic can respond adequately.

11.6. Customer shall indemnify, defend, and hold Dynalogic and its directors, officers, employees, agents and attorneys harmless from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, or settlements, including all reasonable attorney’s fees, and expenses related thereto, directly or indirectly resulting from, relating to, arising out of, or attributable to or based upon: 

• Any statements made by Customer or its employees or agents with respect to Software, except for statements that are a direct and correct reference to information in the Documentation and marketing materials provided by Dynalogic for use in connection with Software; and,
• Any breach or alleged breach by Customer of any of its obligations, covenants or warranties hereunder.

12. Term & Termination

12.1. The License will remain in effect for an undefined period, as from the Effective Date (the “Term”), unless otherwise agreed in the Software Agreement. The Term can be terminated by either party by written notice, taking into account a notice period of 45 (forty-five) days.

12.2. Dynalogic has the right to terminate the Software Agreement (including the granted License) with immediate effect in case: 

• Customer has failed to comply with a material obligation under this End User License Agreement or under any of the separate agreements to be concluded in relation thereto; In this case Dynalogic may also unilaterally suspend the availability of certain functionalities or accesses to prevent such non-compliances;
• Customer has been declared bankrupt, it has been granted suspension of payments, whether provisional or not, the Customer has become subject to any other similar regulation, or the Customer has wholly or partly lost the right to dispose or make use of its property, irrespective of whether that situation is irrevocable;
• Customer has offered its creditors a composition outside a bankruptcy, suspension of payments or any other similar regulation;
• Customer has ceased to exist or has been dissolved; e. In case the Customer breaches a term of this End User License Terms & Conditions and fails to cure the breach within thirty (30) days after it has received a notice of breach from Dynalogic which notice specifies the details of such breach;
• If Customer acts in a way that, in the reasonable judgment of Dynalogic, has damaged its reputation. If, in general, Dynalogic decides to no longer make the software available to the public.

12.3. Upon termination of the Term, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this End User License Agreement:

• (a) any obligation of Customer to pay fees incurred before termination; 
• (b) Articles and Sections 3.3 (Restrictions on Software Rights) 6 (IP & Feedback), 7 (Confidential Information), 8 (Software Audit), 9.5 (Warranty Disclaimers) and 11 (Limitation of Liability); and 
• (c) any other provision of this End User License Agreement that must survive to fulfill its essential purpose.

13. Distribution by Dynalogic’s reseller

13.1. In case the Software is supplied through a Dynalogic’s reseller, the following applies.

• (a) Delivery and Enhancement of the Software will take place through the intermediary of the Dynalogic’s reseller;
• (b) The Software Agreement is entered into with Dynalogic’s reseller. These License Terms and Conditions are entered into with Dynalogic;

13.2. In the event that the Software Agreement has been entered into through a Dynalogic’s reseller, the Customer agrees that in the event of termination of the reseller agreement, the Software Agreement with the Dynalogic’s reseller will transfer to Dynalogic, in accordance with Article 6:159 DCC. In case of such transfer delivery and enhancement of the Software will be provided by Dynalogic.

14. Miscellaneous

14.1. Dynalogic and the Customer are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

14.2. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Term to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemics or other causes beyond the performing party’s reasonable control.

14.3. Customer may not assign the Software Agreement or any of its rights or obligations hereunder without Dynalogic’s express written consent. 

14.4. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these End User License Terms & Conditions invalid or otherwise unenforceable in any respect. In the event that a provision of these End User License Terms & Conditions are held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these End User License Terms & Conditions will continue in full force and effect.

14.5. Neither party will be deemed to have waived any of its rights under these End User License Terms & Conditions by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these End User License Terms & Conditions will constitute a waiver of any other breach of these End User License Terms & Conditions .

14.6. These End User License Terms & Conditions, as well as any other part of the Software Agreement shall be governed by and construed in accordance with the laws of the Netherlands.

14.7. All disputes arising between the Customer and Dynalogic or Dynalogic’s reseller that are connected to the Software Agreement or ensue from any further agreements that result from Software Agreement will be resolved by means of arbitration in accordance with the Arbitration Regulations of SGOA (Stichting Geschillenoplossing Automatisering, or ‘foundation for the resolution of ICT disputes’), which has its registered office in The Hague. This provision does not affect the right of each party to request summary arbitral proceedings, without prejudice to the right of each party to take precautionary legal measures. Arbitration will take place in Haarlem. The sessions referred to in this agreement will be held in Utrecht. The arbitration will be conducted in Dutch.

14.8. In the event of any conflict between these End User License Terms and Conditions, the Software Agreement, the following ranking applies:

• The Software Agreement;
• The End User License Agreement;
• The General Terms and Conditions of Dynalogic.

14.9. These End User License Terms & Conditions may not be amended except through a written agreement by authorized representatives of each party.