License agreement

License terms and conditions Embion EMS

 

Consider:

  1. Customer has requested Embion to license Software for the purpose of operating a product marketed by Embion known as the Embion EMS controller (formerly: SolarGateway Pro), further referred to as the Product. Embion is the owner and rights holder of the Software.

  2. Embion is willing to provide such License to Customer according to the following conditions.

 

Declare to have agreed as follows:

1. Object of the Agreement.

 

1.1 In this License Agreement, the following terms are used in the following meanings unless expressly stated otherwise:

Vendor: this refers to Embion B.V., located in Tilburg at Kalundborg 10 (5026 SE), registered in the trade register under number 82594201 and accessible via info@embion.nl and telephone 085 0435861

Embion: hereunder to be understood Embion B.V., established in Tilburg at Kalundborg 10 (5026 SE), registered in the trade register under number 82594201 and accessible via info@embion.nl and telephone 085 0435861

Customer: Buyer of the Product and/or purchaser of the license;

End Customers: an Installer's own customers;

Installer: a professional party responsible for installing the Product and activating the License with an End Customer. An Installer may also be a Customer;

Order: written confirmation of delivery of Products by Seller/Embion;

Parties: Customer and Embion jointly;

Product: refers to the Embion EMS controller;

License: the permission to use Seller's Software without acquiring ownership rights over it;

License Fee: the fee accruing to Embion and Customer for the use of the License;

License Voucher: a voucher worth a certain amount that can be redeemed exclusively for (partial) payment of the License Fee;

Written: on paper or by e-mail or similar medium;

Software: all software developed by or for Embion intended for application for the Product, such as the software on which the Product runs, the digital environment with which an end user can consult the Product and applications used in the installation of the Product and the License. This includes both backend and front-end software;

Acceptance: Customer confirms having read and agreed to the License Terms and Conditions and agreeing to the License Fee.

1.2 Embion hereby grants to the customer, as the customer hereby obtains from Embion, a license after installation of the Product by the customer. The license covers the temporary use of the Software. The object of the Licence Agreement is thus a time-limited, non-exclusive right to use the Software. This right is granted against payment of a periodic fee. It is expressly not intended to transfer IP rights and other property rights to Customer in this context.

1.3 The Product is not included in the present License Agreement. The Product is or has already been the subject of a separate purchase agreement which is inseparable from the present License Agreement.

1.4 Part of the License is to receive new releases of the Software.

1.5 The parties may determine in writing during the term of the License Agreement that this License Agreement will apply to a Product with a different ID number, for example, in the case of replacement of a defective Product. It is also possible that a License Agreement covers several Products. A License Fee will be payable for each separate Product.

1.6 In return, Customer shall pay a License Fee in accordance with the provisions of Clause 5.1 et seq.

1.7 This License Agreement is subject to Embion's general terms and conditions.

 

2. Place of Delivery

 

2.1 The License and thus the Software will be delivered by digital means. Client will have an authorized Installer install the Product and subsequently the Software in accordance with the provisions in the accompanying documentation. Embion is never responsible for the installation. Embion works with a network of approved Installers and advises to have one of these Installers do the installation.

2.2 After the Product is activated and Client requests a License under Acceptance of the provisions in this License Agreement, Embion will deliver it.

 

3. Acceptance and Transfer of Ownership

 

3.1 If delivery has been made to the Client, the date on which the proof of delivery has been drawn up shall count as the date of Acceptance.

3.2 Until the moment of delivery, the risk of damage or loss of the Software rests with Embion. The right to use transfers to Client after Acceptance of the (first) invoice for the license fee.

3.3 After Acceptance, Embion is not bound under the license agreement to repair defects in the Licensed Software except for the cases in which:

  1. Customer can claim rights from (the) warranty(s) as included in Embion's general terms and conditions.

  2. The defects were hidden at Acceptance of the license and could not reasonably be discovered by the customer. In such case, Embion will be obliged to repair such defects in accordance with the provisions of the general terms and conditions.

 

4. Duration of agreement

 

4.1 The License Agreement is entered into for a period of two years unless the parties agree otherwise in writing. The License Agreement commences at the time of Acceptance.

4.2 The Parties are entitled to terminate the License Agreement towards the end of the period referred to in paragraph 1, subject to three months' notice. The Parties may not terminate prematurely except in the cases regulated in this Agreement.

4.3 The License Agreement will be tacitly renewed by one year after the period mentioned in paragraph 1 whereby the then current standard license terms will apply.

4.4 After the extension mentioned in 4.3, Customer shall be entitled to a one-time free upgrade of the Product insofar as this is technically necessary in Embion's opinion. Embion will deliver this Product to Customer at that time. The Product will be provided with the Software. The installation of the Product is the responsibility of Customer and will also have to be organized and if necessary paid for by Customer and performed by an authorized Installer.

4.5 Following the provision of a new Product, this License Agreement will apply to the new Product and the old Product will no longer be supported. In that case, the parties shall apply clause 1.5.

4.6 A party may also terminate the License Agreement in whole or in part with immediate effect, without incurring any obligation to pay compensation for any damage suffered by that party, if any of the following circumstances occur:

  1. The other party's bankruptcy is filed for;

  2. The other party is declared bankrupt;

  3. The other party is granted a suspension of

  4. Payment is granted;

  5. The other party's business is terminated or transferred in whole or in part to a third party;

  6. Customer fails to comply with one or more provisions of the License Agreement and/or one or more provisions of any related agreements.

4.7 The License Agreement shall otherwise terminate only if both Parties agree in Writing to terminate the License Agreement.

 

5. Prices

 

5.1 The price for the License depends in part on the maximum contracted power and desired functionalities upon Acceptance. The price covers all Software to be made available by Embion under the License Agreement. Besides this price, additional software options can be purchased by the Client for which costs will also be charged and are also covered by this License Agreement.

5.2 With due observance of paragraph 1, the Client will inform Embion immediately upon Acceptance through the Software of the maximum contracted power and desired functionality which determines the type of License.

Customer will have a trial period of 14 days prior to Acceptance to test the functionality of the Software and possibly modify it. At the end of that trial period, Embion will contact Customer to determine all details required for the License Agreement, after which Embion will send the License Agreement In Writing to Customer for Acceptance by signature. Simultaneously with the License Agreement, the invoice for the License Fee will also be sent along with the License Agreement, which the Client must pay within the specified period.

5.3 The License Fee as stipulated in clause 5.2 cannot be adjusted downwards during the term of the License Agreement. However, the fee can be adjusted upwards if Customer makes changes to the installation via Software that require a higher License Fee.

5.4 To the extent Embion is required to charge sales tax, the amounts stated in this agreement will be increased by the sales tax percentage applicable to the performance at the time of performance. All prices and rates will always be fixed in EURO.

5.5 With reference to Embion's general terms and conditions, Embion may index the license fee annually.

 

6. Payment


6.1 The agreed License Fee will be charged to the Customer in full and in one lump sum upon Acceptance and is always an advance payment, unless the parties have agreed otherwise in Writing.

6.2 Embion will send invoices to Customer stating the date, license code, ID number of Product on which the Software is installed, the location of the Product and other details made known to it in Writing by Customer.

6.3 Customer shall pay Embion the amounts due by him under the License Agreement upon receipt of the relevant invoice and within the specified payment period. The License Fee may or may not be paid in part with a License Voucher.

6.4 If Customer fails to pay the relevant invoice without valid reason after the expiry of the sub. 6.3, he shall automatically owe the fees mentioned in art. 3.7 of the general conditions.

6.5 If payment is not made on time, Embion has the right to shut down the Software (and thereby possibly also the Product) until Customer has paid what he owes. This means that the Product can no longer use Embion's internet services, and new software releases will no longer be updated. As a result, the warranties will expire. This means that the Product will still allow connected devices to continue to function, but optimizations and electricity buying and selling will no longer be realized and data logging will be disabled. Any restart costs will be charged to Customer by Embion on an after-the-fact basis.

 

7. Terms of Use

 

7.1 The Customer is permitted to use, image, execute or store the Software insofar as this corresponds to the use intended with the Software.

7.2 The Customer is not permitted to:

  1. Give the License and Software in use to third parties or use it for third parties;

  2. Modify or adapt the Software;

  3. Reconstruct the source code of the Software. If Customer needs information about the (architecture of the) Software itself, it shall request the necessary information from Embion in writing and with reasons;

  4. Infringe any copyrights, trademarks and trade names and/or other forms of IP with respect to the License, Software and the Product.

7.3 Embion may verify upon request and upon prior notice whether Customer is using the Software in accordance with the License Agreement and related agreements, conditions and documentation. In case of breach of its obligations, Customer shall reimburse Embion for the cost of such audit and cease the infringement immediately.

7.4 Embion regularly releases new releases of the Software with new and/or improved functionalities. The Customer will be informed in Writing when a new release is available. The Client may test this release for four weeks if desired without any obligation under the condition that bugs and other problems are reported to Embion immediately. After this testing phase, Embion will also automatically install the new release remotely, unless Parties have agreed otherwise in writing. Embion is not responsible for complications and damage to the customer arising during the test phase. After release of a new version, previous versions are no longer supported and Embion cannot be held responsible for any negative consequences thereof.

 

8. Transfer of rights and obligations


8.1 The parties are not entitled to transfer the rights and obligations under the License Agreement to a third party without the written consent of the other party. Such consent shall not be refused without reasonable cause; however, the consenting party shall be entitled to attach conditions to the granting of such consent.

8.2 If, in the performance of the license agreement, Embion wishes to use the services of third parties, either in subcontracting or by temporary hiring of personnel, Embion shall be authorized to do so as of now. This shall not affect Embion's responsibility and liability for the fulfillment of its obligations under the License Agreement and its obligations under tax and social insurance laws.

8.3 Except as provided in clause 8.1, the License is not transferable. Furthermore, the License is personal and not sublicensable.

 

9. IP Rights

 

9.1 The intellectual property rights relating to the Software and documents provided under the License Agreement are vested in Embion. Except upon Embion's written consent, Customer shall not infringe these rights. This prohibition applies in a broad sense, so Customer may not use, process and share the Software nor information nor reproduce, modify or reverse engineer the Software in violation of Embion's IP rights. Nor may Customer remove or disregard any protections or use restrictions.

9.2 All data collected by the Product and/or the Software may be used by Embion for analysis purposes. Customer therefore has no IP right or other exclusive right to data collected and processed or edited by Embion. Data and analysis results will only be shared anonymously with third parties. Embion will act in accordance with its Privacy Statement which can be found on www.embion.eu.

9.3 Embion shall indemnify the Client in legal proceedings instituted against the Client by third parties for claims that the use of the Software infringes the intellectual property rights belonging to such third party, unless:

  1. Customer has not immediately informed Embion in Writing of the aforementioned claim;

  2. The claim arises from the fact that Customer has modified and/or had the Software modified by third parties;

  3. The claim arises from Customer's improper use of the Software.

9.4 The indemnification mentioned in article 9.3 shall only apply if the Customer involves Embion at the outset in the handling of the claim of a third party and determines the steps to be taken in consultation with Embion and gives all necessary cooperation to Embion and/or third parties engaged by him.

9.5 Client agrees that the outcome of a claim of a third party may mean that the Software must be changed by Embion, or that the license agreement may be terminated by Embion immediately. In the latter case, license fees already paid in advance will be refunded by Embion.

 

10. Confidentiality

 

10.1 Embion and Client will make every effort to prevent confidential information of the other party from coming to the knowledge or hands of third parties. This shall not apply to information which is already publicly known, other than by violation of this confidentiality obligation or if a party is forced by a competent (judicial) authority to disclose confidential information.

10.2 Customer shall not share offers, quotations, orders, invoices and other commercial communications obtained from Embion with third parties.

 

11. Termination

 

11.1 Except as provided elsewhere in the License Agreement:

  1. Each of the Parties is entitled to terminate the License Agreement by means of a registered letter, extrajudicially, if the other Party fails to comply with its obligations under the License Agreement even after a Written reminder stating a reasonable period.

  2. The customer is entitled to terminate the license agreement extra judicially by means of a registered letter without any warning or notice of default being required if Embion applies for a (c.q. temporary) moratorium or applies for a (c.q. temporary) moratorium on payments or if Embion is granted a (c.q. temporary) moratorium on payments. suspension of payments; Embion applies for bankruptcy or is declared bankrupt; Embion's company is liquidated; Embion ceases its present business; a substantial part of or the Products and/or Software is seized, or Embion must otherwise no longer be considered able to perform its obligations under this License Agreement.

 

12. General

 

12.1 Embion's general terms and conditions shall apply to any agreement and/or Order entered into with Embion. In case of conflict between the provisions of the License Agreement and the general terms and conditions, the provisions of the License Agreement shall prevail. The latter also applies when there is conflict between the License Agreement and other applicable documents, such as product and software documentation, safety instructions and quotations.

12.2 This License Agreement is inseparable from the purchase agreement regarding the Product. That is, the use of the Product and Software installed on it requires a License Agreement and vice versa.