Knowledge Base

Use Limitation, Liability, and Indemnification

Permitted and Prohibited Uses

• The Software is intended for research or training purposes only.
• End-User 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.
• 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.

Prohibited Applications

• Active defense, meaning embedding Noldus Software in a weapon system.
• Biometric data collection in a judicial context with the aim to use such data as evidence in court. Noldus Software cannot and shall not be used as a lie detector.
• Surveillance of people in public spaces for security purposes.
• Any other use that may potentially violate fundamental human rights.

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.

Exclusion of Indirect Losses

• 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.
• This exclusion includes 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 or the Software.
• This exclusion applies 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.
• If liability exists despite the provisions of this EULA, only direct damage will be eligible for reimbursement.

Additional Liability Exclusions

Noldus and 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 the permitted use provisions.
• 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 howsoever caused.

Liability Cap

Save for gross negligence or willful misconduct of Noldus or its officers, the Authorized Partner, or third parties engaged by Noldus, any and all liability of Noldus or the Authorized Partner arising out of or relating to this EULA or the Software is limited to an amount equal to the purchase price or license fees paid by the End-User for the specific Software from which the liability arises. A claim will be unenforceable and lapse unless Noldus or the Authorized Partner receives written notice no later than 6 months after the discovery of an event or circumstance that gives or may give rise to that claim.

Noldus Indemnification of End-User

Noldus will hold harmless, defend, and indemnify End-User from and against all losses, damages, claims, liabilities, and expenses arising out of any third party claim that End-User's use of the Software 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:

• Procure for the End-User the right to continue to use the Software, or
• Modify or replace the Software so that it is no longer infringing in a manner that substantially retains its functionality and quality, or
• Require End-User to terminate the use of and return the Software and refund a pro rata portion of the amount paid by End-User for the infringing Software.

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 are subject to:

• End-User giving Noldus prompt written notice of any claim.
• Transfer of sole control of the defense and any related settlement negotiations to Noldus.
• 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.

End-User Indemnification of Noldus

End-User shall indemnify and hold harmless Noldus, the Authorized Partners, and third parties engaged by Noldus from and against any and all losses arising out of or caused by:

• Any failure in the performance of the obligations of the End-User under the law, this EULA, or Noldus' General Terms and Conditions.
• 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.

Acknowledgment of Liability Limitations

The limitation of liability provisions shall apply even if End-User's remedies under this EULA fail of their essential purpose. 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, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.