GROUP LICENSE TERMS
Version 4.4 – October 2019
These Group License terms (the “License Terms”) apply to your use of the Products if you have licensed a Product subject to a Group License from filerskeepers B.V. (“filerskeepers”). These License Terms are entered into by filerskeepers, whose principal place of business is Jacob van Lennepkade 259-1, 1054 ZT, Amsterdam, the Netherlands and Customer. These License Terms contain the general terms relating to Customer’s access to and use of the Products. The applicable Customer Order sets forth the Products pursuant to which Customer purchased the Group License.
By signing or otherwise indicating acceptance of these License Terms or downloading, accessing or using any Product, you, on behalf of Customer and its Group Members, are accepting and agreeing to be bound by these License Terms. If you are entering into these License Terms on behalf of a company, other legal entity or government agency, you represent that you have the authority to bind that entity to the terms and conditions of these License Terms. Capitalized terms used in these License Terms are defined in Section 14 of these License Terms.
1. GRANT OF LICENSE
1.1 Subject to Customer’s compliance with these License Terms and the applicable Customer Order, including, without limitation, payment of all applicable fees, during the Term, filerskeepers grants to Customer a non-exclusive, non-transferable, limited license to allow an unlimited number of its Authorized Users and Group Members to:
(a) store, access, evaluate, use and reproduce the Products solely for Customer’s Internal Use;
(b) develop Derivatives of the Products and use those Derivatives. Customer may process, modify, enhance, adapt and create Derivatives of the Products via formatting, editing, digitization, and/or data combination and use and reproduce the Derivatives solely for Customer’s Internal Use; and
Customer is responsible for ensuring that its Authorized Users comply with these License Terms, and Customer is liable for the acts and omissions of its Authorized Users. filerskeepers will deliver One-Off Products “AS IS” and is not obligated to update the One-Off Product. Customer has the right to updates to the Subscription Products and additional functionalities as they may be introduced as per the filerskeepers roadmap.
1.2 CONTENT. If the Product includes links to websites and resources provided by Third Parties, filerskeepers has no control over the content of those sites or resources, and filerskeepers is not liable for any loss or damage that may arise from your of those sites or resources.
2. SUBLICENSE RIGHTS
Customer may sublicense to its Group Members the same rights granted to Customer in Section 1 of these License Terms. Accordingly, each Group Member and its Authorized Users may exercise the rights granted in Section 1 of these License Terms for its own Internal Use. Customer is responsible for documenting each Group Member to which it sublicenses the Products, and upon the request of filerskeepers, Customer must provide the name and address of each Group Member to filerskeepers. Further, Customer is responsible for entering into a sublicense agreement with each Group Member that includes terms and conditions that are the same as these License Terms. Customer will ensure that each Group Member complies with these License Terms and will be liable for all acts and omissions of its Group Members relating to the Products or any violation of these License Terms; a breach of these License Terms by a Group Member or its Authorized Users is deemed to be a breach by Customer.
3. ADDITIONAL LICENSE RIGHTS FOR CONSULTANTS
In addition to section 1 of these License terms and subject to Consultant’s compliance with these License Terms and the applicable Consultant Order, including, without limitation, payment of all applicable fees, during the Term, filerskeepers grants to Consultant a non-exclusive, non-transferable, limited Consultant License to:
(a) allow an unlimited number of its Authorized Users to provide advice or to provide implementation services to Project Members using or based on the Products;
(b) sublicense to its Project Members the same rights granted to Customer in Section 1 of the License Terms, each Project Member and its Authorized Users may exercise the rights granted in Section 1 of the License Terms, as applicable, only for its own Internal Use in connection with the applicable Project.
Consultant is responsible for documenting each Project Member to which it sublicenses the Products, and shall notify filerskeepers of each new Project Member before allowing access to the Products. Further, Consultant is responsible for entering into a sublicense agreement with each Project Member that includes terms and conditions that are the same as these License Terms. Consultant will ensure that each Project Member complies with these License Terms and will be liable for all acts and omissions of its Project Members relating to the Products or any violation of these License Terms; a breach of these License Terms by a Project Member or its Authorized Users is deemed to be a breach by Consultant. Consultant shall not use the Products in violation of these License Terms to directly or indirectly compete with filerskeepers. If the Consultant uses the Consultant License for the purposes of running a Pilot, it can only use the Products for one Project Member. Consultant is not permitted to switch Project Members during a Pilot Term; if Customer wants to sublicense the Products to more Project Members than permitted under the license it purchased, Customer must purchase an additional Consultant Order.
4. SUBSCRIPTION TERM AND TERMS
The Term of each Subscription Product will begin upon delivery of the Subscription Product to Customer unless terminated as set forth in Section 12 of these License Terms. Upon expiration of each one-year term, the Term will automatically renew and Customer will be invoiced for the applicable license fees under the Customer Order, unless Customer notifies filerskeepers at least thirty (30) days prior to the end of the then current Term that Customer does not want to renew the license. The Pilot Term will be the term set out in the Consultant Order and cannot be renewed. A Subscription Product entitles Customer to (1) user account at filerskeepers.co. A One-Off Product also entitles Customer to one (1) user account at filerskeepers.co. Only user accounts at filerskeepers.co allow Customer access to Products, download Products or Product updates and to receive notifications in relation to Products.
Customer recognizes and agrees that the Products are the property of filerskeepers and contains valuable assets and proprietary information of filerskeepers. Accordingly, except as expressly permitted in Sections 1 through 3 of these License Terms, Customer will not, and will not permit any Group Member or Authorized User to:
(a) Distribute, sublicense, rent, sell, lease or loan the Products or Derivatives to any Third Party;
(b) Use the Products or Derivatives for the business needs of any Third Party, including without limitation, providing any services to any Third Parties;
(c) Remove, bypass or circumvent any electronic or other forms of protection included on or with the Products;
(d) Alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Products; or
(e) Otherwise use or access the Product or any Derivative for any purpose not expressly permitted under these License Terms, including, without limitation, for Commercial Purposes.
All right, title and interest in and to the Products, including all corrections, enhancements, or other modifications made by filerskeepers or any Third Party at filerskeepers’ direction, and all Intellectual Property Rights therein are the sole and exclusive property of filerskeepers or its suppliers, as applicable. All right, title and interest, including all Intellectual Property Rights, in and to enhancements or modifications made by Customer or a Group Member in the creation of a Derivative and any new material contributed by Customer or a Group Member in the creation of a Derivative, but specifically excluding pre-existing materials owned by filerskeepers (including, without limitation, Products integrated, referenced, recast, transformed or adapted in the Derivative) are the exclusive property of Customer or the Group Member, as applicable. However, notwithstanding the ownership rights of Customer or a Group Member in the enhancements, modifications and contributed materials, use of a Derivative by Customer or a Group Member is subject to the license and use restrictions set forth in Sections 1 through 3, 5 and 7 of these License Terms. All right, title and interest, including all Intellectual Property Rights, in and to a Derivative are the exclusive property of Customer or a Group Member, as applicable. All rights not expressly granted to Customer in these License Terms are reserved by filerskeepers.
Customer will not delete, alter, cover or distort any copyright, trademark or other proprietary rights notice placed by filerskeepers on or in the Products and will ensure that all notices are reproduced on all copies. All Derivatives must include the following copyright notice on or adjacent to the Derivative: [Product] © [YEAR] filerskeepers B.V.
8. COMPLIANCE WITH LICENSE TERMS
8.1 Certification. Upon filerskeepers’ written request, and not more than once per calendar year, Customer will certify its compliance with the licenses granted under these License Terms. If Customer is unable to provide this certification, Customer will work in good faith with filerskeepers to convey the proper license type and remit the appropriate fees as remedy for any non-compliance. In addition, filerskeepers reserves the right to terminate all licenses and these License Terms for non-compliance in accordance with Section 12 of these License Terms.
8.2 Audit. filerskeepers or its authorized representative will have the right to perform an audit to determine Customer’s compliance with these License Terms and the licenses granted hereunder. Customer will grant filerskeepers auditors access to the business location(s), books and records, employees and/or contractors pertaining to Customer’s use of the Products, including Group Members. The audit will: (a) require a minimum of thirty (30) days prior written notice; (b) be conducted no more than once per calendar year; (c) be limited to a two (2) year audit period unless non-compliance findings are noted, in which case the audit period can be expanded; (d) be conducted during reasonable business hours; and (e) be subject to reasonable confidentiality requirements.
8.3 Audit Findings. If an audit results in a finding of non-compliance, filerskeepers may, at its discretion: (a) invoice any additional license fees due based on the standard filerskeepers fees in place at the time of the original license grant; (b) assess interest charges from the time of the original fee payment due date at the lower rate of: (i) 1.5% per month; or (ii) the highest rate permissible under applicable law ; (c) recover the cost of the audit if additional fees exceed five percent (5%) of the fees paid during the audit period; and (d) terminate these License Terms and the filerskeepers licenses in accordance with Section 12 of these License Terms. Customer must pay all invoices within thirty (30) days following the date of invoice.
9. INDEMNIFICATION BY CUSTOMER
Customer will defend, indemnify and hold filerskeepers harmless from and against any claims that may arise against filerskeepers out of Customer’s use of the Products, including a violation by Customer of Section 13.5 or 13.6 of these License Terms.
10. LIMITED WARRANTY AND DISCLAIMER
filerskeepers warrants to Customer only that the Products, as delivered by filerskeepers, will (a) concern the country of interest set forth in the applicable Customer Order; and (b) comply in all material respects with the applicable Product Specification. filerskeepers’ sole obligation and Customer’s exclusive remedy for a breach of this warranty is for filerskeepers, at its option and expense, to: (i) repair or replace the non-conforming Product; or (ii) refund all fees paid by Customer for the non-conforming Product. Any claim under this warranty must be based on the wording of the most up to date version of the Products as available on the filerskeepers website and made within thirty (30) days after delivery of the non-compliant Product. This limited warranty is void if any non-conformity has resulted from any accident, abuse, misuse, misapplication or modification of or to the Product by anyone other than filerskeepers or any breach by Customer of these License Terms. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 10, THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. FILERSKEEPERS DOES NOT WARRANT THAT THE PRODUCTS WILL BE ACCURATE, CURRENT OR COMPLETE, THAT THE PRODUCTS WILL MEET CUSTOMER’SNEEDS OR EXPECTATIONS OR THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. FURTHER, SPATIAL, SPECTRAL AND TEMPORAL ACCURACY IS NOT GUARANTEED.
11. LIMITATION OF LIABILITY
11.1 Subject to 11.2, in no event WILL FILERSKEEPERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE LICENSE TERMS OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL FILERSKEEPERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS EXCEED THE FEES PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS AND STATUTORY CLAIMS.
11.2 No limitation to the liability of a party shall apply to the extent the loss or damage was caused by the willful intent (opzet), fraud, or gross negligence (grove nalatigheid of bewuste roekeloosheid) of such party.
filerskeepers may terminate the Group License upon written notice to Customer if Customer or any Group Member materially breaches these License Terms or the Customer Order and fails to cure the breach within thirty (30) days after receiving written notice to do so. Customer may terminate the Group License at any time by giving written notice; however, Customer is still responsible for paying the licence fee for the then current license term. The expiration or termination of these License Terms does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
13. GENERAL TERMS
13.1 ENTIRE AGREEMENT. These License Terms together with the Customer Order constitute the entire agreement between the parties with respect to use of the Product and supersede all previous, contemporaneous or future agreements, understandings and arrangements, whether oral or written subject to Section 13.3 of these License Terms.
13.2 ASSIGNMENT. Customer may not transfer or assign any of its rights or delegate any of its obligations under these License Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of filerskeepers. Any attempted assignment or transfer in violation of this Section will be null and void. These License Terms will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.
13.3 AMENDMENT. These License Terms may be amended or supplemented only by a writing that refers to these License Terms and that is signed by both parties.
13.4 WAIVER. The failure or delay by a party to require performance of any provision of these License Terms does not constitute a waiver. All waivers must be in writing and signed by the party granting the waiver. The waiver by a party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or a different right or remedy in a subsequent instance.
13.5 SEVERABILITY. If any provision of these License Terms is invalid, illegal or unenforceable, that provision will be deemed to be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision.
13.6 USE Of CUSTOMER INFORMATION. Customer agrees that filerskeepers may use the Customer’s name and logo to identify Customer as a customer of filerskeepers on filerskeepers’ website, and as a part of a general list of filerskeepers’ customers for use and reference in filerskeepers’ corporate, promotional and marketing literature. Additionally, Customer agrees that filerskeepers may issue a press release identifying Customer as a filerskeepers customer and describing filerskeepers’ utilization and the benefits that filerskeepers receives from use of the Products.
13.7 COMPLIANCE WITH LAWS. Customer and filerskeepers are each responsible for their own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and these License Terms.
13.8 GOVERNING LAW AND DISPUTE RESOLUTION. All matters arising out of or relating to these License Terms will be governed by and construed under the laws of the Netherlands. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these License Terms. The courts of Amsterdam will be competent.
13.9 NOTICES. All notices of termination or breach must be in writing in English and addressed to the other party’s legal department. The email address for notices sent to filerskeepers is [email protected] Notice is treated as given upon receipt, as verified by written or automated receipt or electronic log, as applicable.
13.10 FILERSKEEPERS API. The filerskeepers API is a collection of services that facilitates the inclusion of Content and retention periods in webpages and applications made available to Licensee’s End Users. If Licensee has subscribed to the filerskeepers API, then the filerskeepers Developer and API License Terms apply.
“Affiliate” means any legal entity controlling, controlled by or under common control with Customer, where “control” means (a) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to direct or cause the direction of the management and policies of such party by any means.
“filerskeepers API” means an application programming interface and any accompanying or related documentation, source code, executable applications and other materials made available by filerskeepers, including, without limitation, through its Developer Website.
“Authorized User” means an employee that is authorized by Customer or a Group Member to use the Products for Internal Use. As per Section 4, only a limited amount of Authorized Users will be entitled to a user account at filerskeepers.co.
“Commercial Purpose” means redistribution, retransmission or publication in exchange for a fee or other consideration, which may include, without limitation: (a) advertising; (b) use in marketing and promotional materials and services on behalf of a customer, client, employer, employee or for Customer’s benefit; (c) use in any materials or services for sale or for which fees or charges are paid or received; and (d) use in any books, news publication or journal.
“Consultant” means a Customer who uses the Products for Commercial Use and is entitled by written confirmation from filerskeepers to provide advice or other services to Project Members using or based on the Products.
“Consultant Order” means the Consultant’s applicable Customer Order as per the relevant Order Confirmation form.
“Customer” means that individual, legal entity or government agency that has purchased a license to use the applicable Product either directly from filerskeepers, including Consultants.
“Customer Order” means the Customer’s applicable order confirmation, to be read in conjunction with the license specifications set out at www.filerskeepers.co/pricing and these License Terms.
“Derivative” means any addition, improvement, update, modification, transformation, adaptation or derivative work of or to a Product, including, without limitation, reformatting of the Product into a different format or media from which it is delivered to Customer; any addition or extraction of data, information or other content to or from the Product; or any copy or reproduction of the Product.
“Developer Website” means www.filerskeepers.co/api.
“Group” means Customer and Group Members.
“Group Member” means (a) a single Affiliate of Customer; or (b) a single government agency that is part of the same government level as Customer, to which Customer sublicenses the Products as permitted in Section 2 of these License Terms.
“Derivative” means a Derivative that contains data from the Product that has been modified using technical processing or to which other data is added, created by Customer in accordance with Section 1(b)(i) of these License Terms.
“Intellectual Property Rights” means all past, present, and future trade secret rights, patent rights, copyrights, moral rights, contract rights, trademark rights, service marks, and other proprietary rights in any jurisdiction, including those rights in inventions, software, domain names, know-how, technology, methods, processes, information and technology.
“Internal Use” means utilization of Products and permitted Derivatives solely for the internal business purposes of Customer or Group Member, as applicable, (subject to those restrictions set forth in Section 5 of these License Terms) and not for any Commercial Purpose.
“Order Confirmation” means that agreement or other document prepared by filerskeepers that sets forth the Products filerskeepers offers to license to Customer and the related terms and that is presented to Customer for acceptance. A quotation that includes an estimated fee is not an Order Confirmation.
“One-Off Product” a product that does not allow Customer to updates or additional functionalities and is subject to a one-off license fee.
“Product(s)” means those products and services licensed by Customer, as set forth in the Customer Order. This could be either a One-Off Product or a Subscription Product.
“Product Specification” means with respect to each Product, the description and specification published by filerskeepers.
“Pilot” means the initial limited small-scale implementation Project that is used to prove the viability of the Products.
“Pilot Term” means the term defined as such in the Consultant Order.
“Project” means a project undertaken by Consultant and one or more Project Members as agreed in the Order Confirmation form.
“Project Member” means a Third Party that is working together with Consultant on a Project and to which Customer sublicenses the Products.
“Term” means that period of time that Customer is entitled to use the Product, including the Downloaded Images, as set forth in Section 4 of these License Terms.
“Subscription Product(s)” a product that allows Customer to updates or additional functionalities and is subject to an annual license fee. This can be a per country subscription or an unlimited subscription.
“Third Party” means any individual, corporation, limited liability company, partnership, other organization or government agency that is not a party to this agreement and is not an Affiliate of filerskeepers.
“Third Party Content” means any content, software or other data that is not owned by filerskeepers or its Affiliates.
“Third Party Product” means a Product that is a product and/or service offered by a Third Party that is distributed by filerskeepers.