Knowledge Base

4. Transfer (Continued)

• name and address details of the new End-User and the expected date of transfer in writing;
• The new End-User understands and agrees to all the terms and conditions of this EULA in the same way as if the new End-User had obtained the Software from Noldus or an Authorized Partner;
• End-User will destroy all (partial) copies of the Software and all accompanying materials, including but not limited to installed copies and any backup copies on data storage devices and guarantee to Noldus in writing that this has been done. If the Software is an upgrade, any transfer must include all prior versions of the Software;
• Noldus reserves the right to levy an administrative charge upon the End-User and/or the new End-User in relation to transfer of the Software to an End-User.

4.2. Any attempted transfer without prior written permission from Noldus shall constitute a material breach of this Agreement and shall be deemed null and void.

5. Term; Termination

5.1. The EULA shall enter into force on the date of acceptance by the End-User and shall continue until terminated in accordance with this Section 5.

5.2. If the Software is licensed on a subscription basis, the EULA shall continue until the end of the current subscription period.

5.3. Noldus is entitled to terminate the EULA immediately upon prior written notice upon:

• the breach of any material provision of this Agreement by the End-User if (i) such breach is not curable or (ii) if curable, the End-User has not cured such breach within 30 (thirty) day period following receipt of a written notice by Noldus substantiating such breach ("ingebrekestelling");
• the filing or institution of bankruptcy, liquidation or receivership proceedings of the End-User or in the event a receiver or custodian is appointed for the End-User's business, or if its business is discontinued or if it has a petition presented by a creditor for its winding up or if the End-User enters into any liquidation (other than for purpose of reconstruction or amalgamation).

5.3. Upon termination of the EULA, the End-User shall immediately discontinue the use of the Software and remove the software of 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.

5.4. 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.

5.5. The following provisions shall survive termination of this EULA: Section 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:

• 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;
• 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;
• 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) were 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 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.

Source: EthoVision XT 18 - THC - Trial and Hardware Control, Noldus Information Technology