Knowledge Base

End-User License Agreement

5. Termination (Continued)

5.4. Upon termination of the EULA, the End-User shall immediately discontinue the use of the Software and remove the software from all computers, destroy all (partial) copies of the Software from all storage media and return the documentation and materials relating to the Software to Noldus or its Authorized Partner.

5.5. Termination of this Agreement does not remove or reduce End-User's obligation to pay any outstanding license fees or other monies, all of which shall be due for payment immediately on termination of the EULA.

5.6. The following provisions shall survive termination of this EULA: Sections 3, 7, 9, 10 and this Section 5.6. In addition, any other provisions which are required to interpret and enforce the Parties' rights and obligations under the EULA shall also survive any termination or expiration of this EULA, but only to the extent required for the full observation and performance of the EULA.

6. Warranty

6.1. Noldus warrants that the Software as of the date of delivery to the End-User by Noldus or its Authorized Partner, the Software will, for a period of 90 days ("Warranty Period") materially conform to the specifications set out in the user documentation accompanying the Software ("Specifications"), provided that:

1. The Software is properly installed on a supported computer platform (as defined in documents that can be accessed on https://my.noldus.com) and used in accordance with the provisions of the accompanying user documentation and/or any Noldus-approved training course.
2. Noldus is notified in writing within 14 days after any non-conformity of the Software was known or should reasonably have been known to End-User and the End-User has made available all the information that might reasonably be required to allow Noldus to investigate, recreate and where possible remedy a non-conformity.
3. The Software has not been (a) altered, repaired or modified by any party other than Noldus or a third party provider approved by Noldus; or (b) used with software or a computer platform other than set out in the documents that can be accessed on https://my.noldus.com, or have been subjected to negligence, or computer or electrical malfunction; or (c) used, adjusted, or installed other than in accordance with instructions by Noldus.

6.2. Other than set out in Section 6.1, no warranties are expressed or implied with respect to the Software or any element thereof, including without limitation its quality, performance, accuracy, merchantability or suitability or fitness for any purpose, whether or not that purpose has been communicated by End-User to Noldus. The Software is a general product developed by Noldus for a wide range of solutions, requirements and situations and End-User is responsible for purchasing the Software required for his needs. Noldus explicitly does not warrant that the Software shall be entirely without error or fault nor that it will operate without interruption. End-User agrees that such errors, faults or interruptions shall not be deemed material and cause to terminate this EULA.

6.3. The warranty by Noldus set out in Section 6.1 applies only to the first installation of the Software and will not apply, resume or renew upon delivery or installation of any subsequent update or upgrade to the Software, alteration in the number of EULAs granted for use of the Software, or any other extensions, upgrades or alterations to the Software where the Software has previously been delivered to or installed by the End-User.

6.4. The warranty by Noldus set out in Section 6.1 shall further not apply to Software that is licensed or otherwise made available at no cost, or Software that is designated as 'prototype', 'alpha' or 'beta' code, all of which are provided 'as is' and without warranty, representation or liability.

6.5. Upon receipt of an End-User's written notice of the Software not conforming to the Specifications during the Warranty Period, Noldus shall at its option and in its sole discretion (i) assist the Customer in correcting or replacing the non-conforming Software or, (ii) terminate the EULA immediately and refund the purchase price paid by the End-User. The remedies described above shall be End-User's sole and exclusive remedies. Upon expiration of the Warranty Period, Noldus shall have no obligation to provide such remedies.

6.6. Noldus and Authorized Partners are not responsible for maintaining or supporting use of the Software or obligated to provide any updates, fixes or support to the Software unless otherwise expressly agreed in writing between End-User and Noldus or the Authorized Partners.

7. Use Limitation; Liability; Indemnification

7.1. End-User acknowledges that the Software is intended for research or training purposes only and agrees not to use the Software for diagnosis or treatment of disease in human subjects. End-User agrees not to use the Software in any application where the failure, malfunction or inaccuracy of the Software carries the risk of death or bodily injury.

7.2. Noldus Software shall not be used for collection of biometric data from human subjects without prior informed consent from the person whose data is being captured.

7.3. Noldus does not allow the use of its Software for the following applications:

• Active defense, i.e. embedding Noldus Software in a weapon system.
• Biometric data collection in criminal, security-related or similar investigations or procedures.
• Surveillance of people in public spaces for security purposes.
• Any other use that may potentially violate fundamental human rights (https://www.un.org/en/about-us/universal-declaration-of-human-rights).

7.4. If Noldus notices that its Software is used for applications that it does not approve, this may lead to discontinuation of customer support and termination of the EULA.

7.5. To the fullest extent permitted by law, and notwithstanding any other provision of this EULA to the contrary:

• In no event will Noldus or the Authorized Partners be liable to the End-User for indirect losses or for special, incidental, consequential, exemplary, enhanced, or punitive damages, including without limitation, any damages resulting from interruption of business, loss of use, loss of profits or revenue, or loss of business, arising out of or in connection with this EULA, the Software, or the performance of Noldus, the Authorized Partners, or third parties engaged by Noldus in the performance of this EULA, regardless of whether Noldus, the Authorized Partners, End-User, or any other person or entity has been advised of (or could have reasonably foreseen) the possibility of such damages or indirect losses. If, despite the provisions in this EULA, liability exists anyway, only direct damage will be eligible for reimbursement.

7.6. Noldus' and Authorized Partners' liability shall also be excluded, and Noldus and the Authorized Partners shall not have any liability under this EULA in the event of:

• End-User's use of the Software other than in accordance with Section 7.1.
• Direct and indirect consequences of the End-User's failing to adhere strictly to the user documentation provided or made available by Noldus or the Authorized Partner.
• Any loss of or damage to files or data howsoever caused.

7.7. A liability claim will be unenforceable and lapse unless Noldus or the Authorized Partner receives a written notice thereof no later than 6 months after the discovery of an event or circumstance that gives or may give rise to that claim.

7.8. Noldus will hold harmless, defend, and indemnify End-User from and against all losses, damages, claims, liabilities, and expenses incurred by End-User that arise out of, relate to, or are caused by any third party claim that End-User's use of the Software, pursuant to the terms of this EULA, infringes the intellectual property rights of such third party. If such a claim is made or appears likely to be made, Noldus, at its option, will have the right to either (i) procure for the End-User the right to continue to use the Software, (ii) modify or replace the Software so that it is no longer infringing (in a manner that substantially retains its functionality and quality), or (iii) require End-User to terminate the use of and return the Software and refund a pro rata portion, if any, of the amount paid by End-User to Noldus for the infringing Software. Notwithstanding the foregoing, Noldus will have no liability to End-User if the infringement results from use of the Software in combination with software not provided by Noldus or from modifications made by Noldus to conform to specifications provided by End-User. The indemnification obligations in this section are subject to: (i) End-User providing Noldus with prompt written notice of the claim.