Knowledge Base

End-User License Agreement

Section 7 (Continued)

User giving Noldus prompt written notice of any claim (provided that End-User's failure to provide prompt written notice will only relieve Noldus of its obligations under this Section to the extent such failure materially limits or prejudices Noldus' ability to defend or settle such claim); (ii) the transfer of sole control of the defense and any related settlement negotiations to Noldus; and (iii) End-User's cooperation, at Noldus' expense, in the defense of such claim. THIS SECTION STATES END-USER'S SOLE AND EXCLUSIVE REMEDIES FOR THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

7.9. End-User shall indemnify and hold harmless Noldus, the Authorized Partners, and the third parties engaged by Noldus from and against any and all losses (including Indirect Losses and special, incidental, consequential, exemplary, enhanced, or punitive damages) arising out of or caused by (i) any failure in the performance of the obligations of the End-User under the law, this EULA, or Noldus' General Terms and Conditions, or (ii) any and all third party claims on any grounds whatsoever, directly or indirectly related to the End-User's use of the Software, the contents thereof, or any results or materials generated by the Software.

7.10. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 7 SHALL APPLY EVEN IF END-USER'S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.

7.11. Noldus and End-User acknowledge and agree that the parties entered into this EULA in reliance upon the limitations of liability set forth in this Section 7, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

Section 8: Miscellaneous

8.1. Parties may communicate with each other by electronic mail. Parties recognize the risks associated with electronic mail and declare that they shall not hold each other liable for any damage incurred by either of them as a result of the use of electronic mail. If a Party is in doubt as to the content of an electronic message received, the content of the message originating with the sender shall be decisive.

8.2. The invalidity or unenforceability of any provision this EULA shall not affect or limit the validity or enforceability of any other provisions thereof. Any such invalid or unenforceable provision shall be deemed to be substituted by a provision that is considered to be valid and enforceable. The interpretation of the substituting provision shall be as close as possible to the economic, legal and commercial objectives of the severed provision.

8.3. Failure by Noldus or the Authorized Partner to enforce any of its rights under the EULA shall not constitute a waiver of such rights thereunder and shall not relieve End-User of its obligation to comply with such provisions. No waiver or amendment of any provisions therein shall be effective unless signed in writing by a Noldus representative. Any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver.

8.4. Amendments or changes to this EULA can only be agreed upon in writing between the Parties.

8.5. The EULA shall be binding upon the Parties thereto, their legal representatives, successors and assigns. End-User shall not assign any right or obligation arising out of this EULA without the prior written consent of Noldus. Any attempt by End-User to assign or delegate any obligation hereunder shall be deemed null and void.

Section 9: Governing Law — End-Users in the USA or Canada

9.1. If End-User is a legal entity and its principal place of business is located in the United States of America or Canada, or if End-User is an individual whose primary residence is located in the United States of America or Canada:

1. This EULA is exclusively governed by the laws of the Commonwealth of Virginia and the applicable federal laws of the United States of America, without regard to the conflicts of law provisions of any jurisdiction. Without limiting the previous sentence, End-User and Noldus expressly agree: (i) that the Virginia Uniform Computer Information Transactions Act, Virginia Code §§ 59.1-501.1 et seq. ("UCITA"), and the United Nations Convention on Contracts for the International Sale of Goods ("CISG") are expressly excluded from this EULA, (ii) that any and all terms contained in UCITA or CISG will have no force or effect on any portion of this EULA, and (iii) that UCITA and CISG do not apply to this EULA or the Software.
2. Any and all claims and disputes arising out of or in connection with this EULA, the Software, or the performance or non-performance by either party of any of its obligations under this EULA, which End-User and Noldus cannot resolve amicably within a reasonable period of time, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in the United States of America. Noldus and End-User consent to the exclusive personal jurisdiction of and venue in any such court.
3. To the extent permitted by law: End-User must commence or file any claim or action arising out of or relating to this EULA or the Software within six months after the cause of action accrues, otherwise, such claim or cause of action is permanently barred. To the extent permitted by law, End-User expressly waives the right to commence or file any such claim or action under any longer statute of limitations.

Section 10: Governing Law — End-Users in Other Countries

10.1. If End-User is a legal entity and its principal place of business is located in any country other than the United States of America or Canada, or if End-User is an individual whose primary residence is located in any country other than the United States of America or Canada:

1. This EULA is exclusively governed by the laws of The Netherlands. The United Nations Convention for Contracts on the International Sale of Goods is expressly excluded.
2. Any disputes arising out of or in connection with this EULA that cannot be solved amicably within a reasonable period of time will be submitted to the competent court in Arnhem, The Netherlands, for any dispute with End-Users having their principal place of business in the European Union. In the event that an End-User has its principal place of business outside the European Union, the United States of America or Canada, any dispute shall be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. Location shall be Arnhem, The Netherlands. The arbitration procedure shall be conducted by one (1) arbiter in the English language.