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End user license agreement

IMPORTANT!
BY REGISTERING FOR AN ACCOUNT OR ACCESS TO OUR PLATFORM, BY DOWNLOADING, USING, ORACCESSING ANY OF OUR SOFTWARE OR BY SIGNING A LICENSE AGREEMENT OR OTHERWISEPURCHASING A LICENSE, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF USE AS SET OUT HEREIN (THE “AGREEMENT”). IF YOU FAVOR A BASE LICENSE (AS DEFINED HEREINAFTER), AND TO ACCESS AND USE SCAILABLE’S PLATFORM AND SOFTWARE, YOU MUST (I) REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON AT THE END OF THE TEXT AND (II) REGISTER AN ACCOUNT AS SET OUT AT THE END OF THE TEXT IN ORDER TO INSTALL OR USE SOFTWARE. IF YOU FAVOR A COMMERCIAL LICENSE (AS DEFINED HEREINAFTER), WE WILL MAKE YOU A OFFER SEPARATE FROM THIS CONTEXT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOUMUST NOT, AND HAVE NO RIGHTS TO, INSTALL, USE, ACCESS OR RETAIN ANY COPIES OF THESOFTWARE NOR USE OUR PLATFORM AND SERVICES IN ANY WAY, SHAPE, OR FORM.

1. Software and Licensee

These Terms of Use, if and as accepted by you, will be a legally binding agreement (“Agreement”) between you and Scailable B.V. of Eindhoven, The Netherlands (“Scailable” or “we”) for the use of Software or Content we agree to license to you as our licensee, in accordance with the terms and conditions set out herein and/or in a separate license agreement hereto (the “License Agreement” if applicable).
“Software” or “Content”
means any data, software, On-device Software consisting of,amongst others but not limited to the AI Manager and the runtime software, system or computer-implemented method and machine learned models, object codes, algorithms, images, (set of arranged) instructions, or innovations, or any written summaries, photographs, or drawings describing any data, data, software, algorithms, method, models, artificial intelligence (“AI”) or innovations made available by Scailable for the purpose of using the Platform, including all patches, revisions, updates, upgrades or replacements of such software, and, unless subject to a separate license agreement, all separate or additional scripts, modules or software to be used with or in conjunction with such software, all related Documentation, sample code and model libraries (in any form) and all copies thereof
“AI Manager”
means the portion of the Software specified in the Documentation of the applicable License Agreement.
“On-device Software”
means the AI Manager, run-time software and all other Software except the Software available on the Platform as may be specified in a License Agreement, in other document made part of the Agreement or on our website.
“Platform”
means the software platform, its content and related services hosted by Scailable and made available to Licensee under this Agreement.
“Documentation”
means any and all materials and documentation related to the Platform or Software or any other Services, including, without limitation, manuals, guides, training materials, policies, help files, programmer's notes and remarks, and any other written, graphic or printed materials, whether in hard copy or digital format, provided or made available by us, whether through posting on our Platform, a web site, or otherwise.
In this Agreement, “us” or “our” refers to Scailable, and “you”, “your” or “Licensee” refers to the (legal) person identified in a License Agreement or, if you have not executed a License Agreement, to you, a natural person, as identified at the time you registered for a Scailable account or downloaded, installed, or registered a Scailable runtime, unless you are using our Platform on behalf of a university, research institution, commercial entity, or other organization (an “Institution”) and whether or not you have named such legal person at the time you registered for an account or runtime, you are agreeing to this Agreement for that Institution and you are representing and warranting to us that you have the authority to bind that Institution to this Agreement (and, in which case, the terms “you”, “your” and “Licensee” will refer to that Institution). If that Institution has a separate written agreement with Scailable covering your account and use of the Platform, that agreement will govern your account and use of our Platform in the event of a conflict with the terms and conditions of this Agreement.

2. License types

A. Base License. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive,non-assignable, non-transferable, non-sublicensable right to use the Platform and Software for the purposes set out herein and for your internal use only (the “License”) and to not use the Platform and Software as prohibited under subsection C (ii) below.
B. Commercial License. If you have entered into a License Agreement and/or have paid a license or subscription fee to license any Software, the License is subject to: (a) your payment, as and when due, ofapplicable fees; and (b) the limitations, restrictions and term, as applicable, set forth in the LicenseAgreement (a “Commercial License”).
C. Community License. We may from time to time in our sole discretion make certain Software identified as“Community Use” Software available for your use at our Platform and other accountholders allowed to use Community Use Software (the “Community”) at no charge, provided you have registered for anaccount. If we make available Software that has been identified as Community Use Software, the License is subject to the following additional conditions:
(i) you agree that the functionality of the Software may be limited or restricted;
(ii) you shall not use the Software or any data, models or information processed using the Software directly or indirectly for or in connection with: (i) any undertaking that is a business, trade, commercial undertaking or an adventure or concern in the nature of trade; or (ii) the generation of income, compensation or profit or with the purpose, objective or intent of generating or realizing income, compensation or profit, including without limitation the provision of any support, consulting or other services related to the Software or any data, models or information processed using the Software or the sale of any product, device or computing service that uses or is intended to use the Software, any data,models or information processed using the Software or the functionality thereof; and
(iii) we reserve the right to terminate the License at any time, following which you shall cease all usage and destroy all copies of the Software (a “Community License”).
D. Evaluation License. If you receive Software that has been identified as evaluation Software, the License is subject to the following additional conditions: (a) you may use the Software and any output of the Software or any data, models or information processed using the Software, solely for evaluation purposes and may not use it or such output in any other manner or for any other purpose whatsoever, including any production purpose; (b) you may only use the Software for the evaluation period we have advised you of in writing (or if we have not so advised you, for a period of 30 days) (the “Evaluation Period”) following which you shall cease all usage and destroy all copies of the evaluation Software; and (c) we reserve the right to limit or disable functions in evaluation Software and disable all functions at the end of the Evaluation Period (an “Evaluation License”).

3. Registration, Key and Protective Measures

In order to install or use Software, you must register an account as set out at the end of the text. “Account” means the user account you establish with us prior to accessing the Platform and Software Furthermore, for the AIManager, and our (On-device Software) runtimes you must register certain details to personalize your account and to get access to a code (a “Key”) the use of which shall be limited to personal use of activating and use of the Software only in accordance with this Agreement. You represent and warrant that the informationyou provide when registering is accurate, complete and up to date and that you over eighteen (18) years of age. Our privacy policy shall apply to the information we collect from your Account. You understand and agree that our Platform and Software may contain technological measures designed to: (a) limit functionality of the Software for every type of License; (b) disable the Software upon expiration of Evaluation Periods or at the termination of a License; or (c) prevent or detect the illegal usage of the Software or usage of the Software that violates the terms and conditions of this Agreement or the applicable License Agreement. Such measures may include thetransmission of information regarding usage of the Software or Key(s) to verify your compliance. You agree notto circumvent (or attempt to circumvent) such measures and consent to such transmissions.

4. Back-Up Copies

You may make up to two copies (the “Backup Copy”) of the Software solely for archival and backup purposes.Each Backup Copy may only be used as an offline backup and may not be installed or used at disaster recoveryfacilities, including without limitation use on mirrored or clustered servers or similar configurations. You may only use a Backup Copy for so long as the normal production instance of the Software is not operational and, upon recovery of same, may continue to use a Backup Copy only for the period reasonably required to transition to such production instance, following which the Backup Copy shall be uninstalled and deleted from the system on whichit was installed. Use of a Backup Copy may not, in any event, exceed thirty (30) days without our prior writtenconsent.

5. Other Restrictions

You agree not to: (a) copy the Software or any Key(s) except: (i) solely as required to exercise the rightsexpressly granted to you; or (ii) to make Backup Copies; (b) use the Software or any Key in a manner thatbreaches or exceeds the quantities, limitations or restrictions set forth in the applicable License Agreement orthat are applicable to a Community, or Evaluation License; (c) distribute, disclose, sublicense, sell, resell, assign, give away, loan, lend, rent, transfer, transmit, pledge or create a security interest in the Software or any Key, whether temporarily or permanently; (d) remove, destroy, cover, obfuscate or alter in any manner any notices or legends pertaining to proprietary rights; (e) modify, port, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form the Software, or create derivative works based on, or any competitive or emulating software using, the Software; (f) provide or make available any functionality, use or benefit of the Software as an application service provider, a hosted service, software-as-a- service, a computer or processing service business, a service bureau, an outsourced facility or service, on a timesharing or similarbasis or otherwise for or on behalf of any third party, including without limitation using the Software to convert,generate or otherwise process the any work, models, data or other materials of any person other than you; (g)use any Key except for the sole purpose of activating the Software for use in accordance with this Agreement;(h) disclose or allow the use of any Key issued to you to any other person; (i) use the Software or any Key in amanner or for a purpose that infringes upon the lawful rights of others or in contravention of applicable law; (j)disclose to any third party any performance information or analysis relating to the Software; or (k) attempt, orcause, permit or encourage any other person to do any of the foregoing. You understand that the Software issubject to applicable export control laws and regulations and agree that you shall comply with such laws andregulations and shall not export or re-export any Software, directly or indirectly, in contravention of such laws andregulations.

6. Licensing Metrics

This Section applies only to Commercial Licenses.
A Licensee under a Commercial License may only use our Platform and install or operate Software only on thedevices and locations, and for the duration designated in the applicable License Agreement. Any on-deviceSoftware will be associated with a unique Key (which is potentially generated automatically upon installation ofthe Software). The Key is one-to-one tied with a single registered device and is not useable or transferablebetween devices or between users.

7. Your Responsibilities

You are responsible for procuring at your expense all third-party equipment, products, software and services(“Third Party Products”) meeting or exceeding the minimum requirements for the Software as identified in ourDocumentation. If we provide or make available any Third-Party Products to you, we do so on an “as-is” basis, without any warranty and subject to any additional terms and conditions accompanying such Third-Partyproducts. You agree that failure to use or procure Third Party Products that meet such requirements may resultin the inability to use the Software, failures or errors. You agree to provide us information and access to yourrelevant systems in a timely and reasonable manner as we may reasonably require to perform our obligations. We or our agent may inspect you, your systems and records to verify your compliance with the Agreement. You agree to provide reasonably and timely assistance, cooperation, information and access to your relevant systemsand information in connection with any such inspection.

8. Fees

This Section applies only to Commercial Licenses
A Licensee under a Commercial License will pay the fees as set out in the License Agreement. All overdueamounts will bear interest at the rate of 1.5% per month (19.56% per year). We reserve the right to increasefees applicable to each renewal term upon prior written notice. All fees are exclusive of all applicable goods and services taxes, sales taxes and any other taxes imposed or levied by any government or government agency,including sales or use taxes.

9. Support and Maintenance

This Section applies only to Commercial Licenses.
We will provide a Licensee under a Commercial License support and maintenance in respect of your permitted use of the Software as specified in the applicable License Agreement (the “Services”.

10. Ownership

The Platform and Software is protected by copyright and other intellectual property rights and is licensed as a service to you, not sold as a good. By acquiring the right to use the Platform, Software or a Key you do not become the owner of the Platform, Software or such Key. Except for the rights expressly granted to you under this Agreement and the applicable License Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Platform, Software, each Key and all copies thereof (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by Scailable or our licensors. Scailable and all other trade names, company names, trademarks, service marks and other product and service names and logos in the Software are the proprietary marks of us or our licensors, and are protected by law and may not be copied, imitated or used, in whole or in part, without the consent of their respective owners. This Agreement does not grant you any rights in respect of any such marks.
You acknowledge that the Platform, Software and each Key constitute and incorporate our confidential information and that any unauthorized publication or disclosure thereof may cause immediate and irreparable harm to us. Consequently, you agree to take all reasonable steps to maintain the confidentiality of the Software and each Key and shall not, without our prior written consent, disclose, or make it in any form to any other person.
Our Software may include, or we may deliver our Software together with, open-source software (collectively, “OSS”) as identified on our website, in our Documentation or as provided to you with the Software. Notwithstanding anything to the contrary herein, your use of any OSS is governed exclusively by the licensing terms applicable to such OSS and not this Agreement. We have no obligation or liability in respect of any OSS, all of which is provided on an “as-is” basis.
You agree that any feedback, input, suggestions, recommendations, improvements, changes, specifications, test results, or other data or information that we collect or that are provided or made available to us arising from or related to the Platform or Software or the use, testing or evaluation thereof, including optimization metadata automatically transmitted to us by the Software (which transmissions you hereby consent to and agree not to block, restrict or circumvent), or in the course of utilizing our Services, shall become our exclusive property andmay be used to modify, enhance, maintain, improve and create the Software, our Platform or other products orservices, without any obligation or payment to you whatsoever. The foregoing does not apply to any of models,data or information that you process using the Software, provided however that you grant us the right to usesuch models, data or information as reasonably required for the purposes for which you have provided it to us,including for the provision to you of support, maintenance or other services.

11. Warranty and Disclaimer

Scailable warrants to you during the term of the licensed use of the Software by you that the Software will function substantially in accordance with the Documentation if operated on the Platform in accordance with the Documentation. If Software licensed under a Commercial License does not function substantially in accordancewith the Documentation during the term, we will, upon receipt of written notice from you of such failure providingreasonable details thereof and verification of reproducibility, use commercially reasonable efforts to diagnose,correct or provide a reasonable workaround for same in accordance with our support policies. The foregoing constitutes your sole and exclusive remedy and our sole obligation for any such failure. We have no obligation or liability whatsoever if Software has been modified by anyone other than us, or to the extent any failure of our Platform or Software arises or results from improper or unauthorized use, your breach of this Agreement, your negligence or willful misconduct, failures in hardware or equipment not owned or controlled by us, or failures, errors, or misconfigurations of third party products or services. Failures in third party products are addressed exclusively by the terms and conditions applicable to such third party products and not this Agreement and we have no obligation or liability in respect of same.
EXCEPT FOR THE FOREGOING, THE PLATFORM, SERVICES AND SOFTWARE IS PROVIDED “AS IS” ANDWE DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED,STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM, SERVICES AND SOFTWARE REMAINS WITH YOU. WE DO NOT WARRANT THAT THE PLATFORM SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT IT WILL BE FREE FROM DEFECTS, ERRORS AND OMISSIONS OR FUNCTIONS WITHOUT INTERRUPTION. WE DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE PROPERLY AS DEPLOYED IN OR ON ANY DEVICE, INTEGRATED IN PRODUCTS OR ON ANY SYSTEM(S) OR DEVICE(S) YOU USE OR ENABLES OTHERS TO USE. WE DO NOT WARRANT THAT THE PLATFORM, SERVICES OR SOFTWARE WILL BE CAPABLE OF ACHIEVING ANY PARTICULAR RESULT IN YOUR OPERATIONS.

12. Limitation of Liability

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUMLIABILITY WILL BE LIMITED TO YOUR DIRECT DAMAGES, NOT TO EXCEED: (A) IF IN RESPECT OFSPECIFIC SOFTWARE OR SERVICES, THE FEES YOU HAVE PAID TO US IN RESPECT OF SUCH SOFTWARE OR SERVICES IN THE LAST TWELVE MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION; (B) IN AGGREGATE IN RESPECT OF ALL CLAIMS, THE ALL FEES YOU HAVE PAID TO US IN THE LAST TWELVE MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OR OTHER PECUNIARY LOSS, EVEN IF WE FORESEE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. Applicability

THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS IN THIS AGREEMENT SHALLAPPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, INCLUDING BREACH OFCONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WILL SURVIVE AFUNDAMENTAL BREACH OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANYREMEDY, INCLUDING ANY EXCLUSIVE REMEDY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OREXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THELIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IFAND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITY BEYONDAND NOTWITHSTANDING SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.

14. Term and Termination

The initial term of each Commercial License commences on the date of the applicable License Agreement and continues for the initial term specified in such License Agreement. At the end of the initial term or any renewal term, the Commercial License may automatically renew for an additional renewal term as specified in the License Agreement, unless either party notifies the other party in writing at least 60 days prior to the expiration of the then- current initial term or renewal term of such party’s desire not to renew. The initial term of each other type of License commences on the date of your registering for an account or access to our Platform, or the downloading, using, or accessing any of our Software, and such License shall terminate, at our discretion, by posting a termination message on our Platform or by email to you.
We reserve the right to terminate this Agreement and all Licenses without notice if you breach or otherwise fail to comply with any provision of this Agreement. Upon termination of this Agreement: (a) any and all rights granted to you under this Agreement, including all Licenses, shall immediately cease; (b) you shall destroy all Softwareand Keys in your possession or control; (c) you shall cease the use of any On-device Software unless expressly provided otherwise in the applicable License Agreement, and (d) you shall deliver to us a writtencertificate confirming such destruction.

15. Changes

We may change this Agreement and License hereunder or under any License Agreement from time to time by posting revisions on the Platform or according a License Agreement, if any. It is your responsibility to check our website from time to time, or email message(s) to you, for any such changes. Any such changes become effective 30 days after being posted on our website or as detailed in our email message(s). If you do not agree with any such changes, your sole and exclusive remedy is to terminate this Agreement or License Agreement by delivering written notice to us prior to the effective date of such changes. Your continued use of the Platform and Software after a change to these terms has become effective constitutes your binding acceptance of the updated Agreement or License Agreement. We reserve the right to modify our Software from time to time as we determine in our sole discretion.

16. Assignment

You shall not transfer or assign this Agreement, the Software, any Key or any rights granted to you hereunder inwhole or in part, whether voluntarily, by operation of law or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void.

17. Publicity

You agree that we may identify you as a user of the Platform or Software on our website, in publications and in discussions with customers or prospective customers. Any content that identifies you will be subject to your review and approval, not to be unreasonably withheld or delayed. If you are a Licensee under a Commercial License, you may be asked to agree to cooperate with us to: (a) issue a press release with us regarding your use of our Platform and Software within 30 days after you first license the Software; (b) develop and issue one (or more, if mutually agreed) case studies regarding your use of the Platform and Software within 12 months after you first license of the Software; and, (c) develop other promotional materials as mutually agreed in writing.

18. Dispute Resolution

In the event of any claim, dispute or disagreement (a “Dispute”), upon the written request of either party, theparties will meet for the purpose of resolving such dispute. The parties agree to discuss the problem and negotiatein good faith without the necessity of any formal proceedings related thereto. No formal proceedings for theresolution of such dispute may be commenced until either party concludes in good faith that resolution throughcontinued negotiation of the matter in issue does not appear likely.
The parties further agree that all Disputes which cannot be settled in through such discussions will be settledaccording the provisions set out in Clause 19 below.

19. Governing Law and Forum

This Agreement will be deemed to have been made and performed exclusively in the city of Eindhoven, the Netherlands, and any Dispute which cannot be settled amicably according Clause 18 will be governed by and construed under Dutch law without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You hereby irrevocably attorn to the exclusive jurisdiction of the Dutch courts in the district of Oost-Brabant, the Netherlands for any Dispute arising from or in connection with this Agreement and agree not to bring any action or proceeding against us in any jurisdiction other than the Netherlands.

20. Language

At the request of the parties, the official language of this Agreement and all communications and documents relating hereto is English or Dutch.

21. Entire Agreement

This Agreement constitutes the entire agreement between you and us with respect to its subject matter andcancels and supersedes any prior understandings and agreements. There are no representations, warranties,terms, conditions, undertakings or collateral agreements, express, implied or statutory, between you and usother than as expressly set forth in this Agreement. You represent and warrant that you have not been inducedto enter into this Agreement by any other statement, representation or warranty not contained in this Agreement.The headings in this Agreement are for convenience of reference only and do not affect the construction orinterpretation of this Agreement.

22. Severability

To the extent that any provision of this Agreement is declared by a court or other lawful authority of competentjurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as togive effect to the intent of the parties insofar as possible and you and we will substitute a new provision of likeeconomic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreementshall continue in full force and effect with respect to all other provisions.

23. Force Majeure

We will be not be liable or responsible for any failure or delay in performing our obligations if caused by or resultsfrom causes beyond our reasonable control, including fires, floods, embargoes, shortages, epidemics,quarantines, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotion,strikes, lockouts or other labour disturbances, acts of God or acts, omissions or delays in acting by anygovernmental authority.

24. Amendments and Waivers

No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unlessin writing and signed by the party against whom the same is sought to be enforced. One or more waivers of anyright, obligation or default shall be limited to the specific right, obligation or default waived and shall not beconstrued as a waiver of any subsequent right, obligation or default. No delay or failure of we in exercising anyright hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of suchright or any other rights hereunder.

25. Notices

Any demand, notice or other communication to be given to us shall be delivered by mail to: Scailable B.V., Stoutheuvel 1, 5632 MN Eindhoven, The Netherlands.
Any demand, notice or other communication to be given to you shall be delivered to the address or number thatyou provided during registration, or as specified in the License Agreement (if any), or such other address ornumber as you have advised us of from time to time.