Testnext License Policy

Testnext Software & Services B.V. (“TESTNEXT”) is willing to license the Application Program(s) to a person, company or entity (“CLIENT”) only upon the condition that CLIENT accepts all of the terms contained in this software license agreement (“LICENSE”). By purchasing, installing or otherwise using the Application Program(s), CLIENT agrees to these terms. If CLIENT does not agree to these terms CLIENT must destroy any copies of the Application Program(s) in CLIENT’s possession.

1. DEFINITIONS

The capitalized terms in this Agreement shall have the following meanings:
“CLIENT” shall mean the party and her fully owned subsidiaries who, by signing the Order Form, Quotation Form or by installing the Program(s) on her computer system(s) or otherwise, have accepted these terms and conditions.
“TESTNEXT” shall mean TestNext Software & Services B.V. from which CLIENT acquires Program(s) license and Services.
“Application Program(s)” shall mean Program(s) designated as application software by TESTNEXT.
“Commencement Date” shall mean the date on which the Program(s) license are activated, or if no activation is required, the Effective Date as stated on the relevant Order Form.
“Documentation” shall mean the instructions, user guides and other manuals supplied by TESTNEXT relevant to the Program(s) being licensed.
“License Term” shall mean the period of use of the Application Program(s) as stated on the relevant Order Form.
“Order Form” shall mean TESTNEXT’s standard form for ordering Program(s) licenses and Services or any other document approved and accepted by TESTNEXT for any such purpose.
“Price List” shall mean TESTNEXT’s standard fee schedule that is in effect when a Program(s) license or Services order is received by TESTNEXT. “Program(s)” shall mean the computer software (in object code form unless stated otherwise) owned or distributed by TESTNEXT and any Updates for which CLIENT is granted a license pursuant to this Agreement.
“Services” shall mean Support and Maintenance Services, consulting, training or installation services, as the context shall require.
“Support and Maintenance Services” shall mean the provision of technical services and Updates as detailed in Section 4.2 of this Agreement.
“Updates” shall be subsequent releases of the Program(s) and related amendments to the Documentation which are generally made available for licenses for which CLIENT is receiving Support and Maintenance Services. Updates shall not include any option or future product which TESTNEXT licenses separately.
“Working Day” shall mean 9:00am to 5:00pm Central European Time (CET) Monday to Friday excluding bank and public holidays in the Netherlands.

2. PROGRAM(S) LICENSE

2.1 Rights Granted
TESTNEXT grants CLIENT a perpetual, non-exclusive, non-assignable, non-sublicensable, non-transferable (except pursuant to Section 2.2 and 2.3), revocable (pursuant to Section 10), limited license for CLIENT’S own purposes to: (a) install and use the Program(s) as specified on the Order Form on a single computer; OR install and store the Program(s) on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. A license for the Software may not be shared or used concurrently on different computers. (b) to copy the Program(s) for archival or back up purposes. All archival or back up copies of the Program(s) are subject to the provisions of this Agreement and all TESTNEXT, or its licensor’s titles, trademarks, copyrights and restricted rights notices shall be reproduced on such copies; (c) to combine the Program(s) with other software products, provided that the Program(s) or any portions thereof included in such derivative software products remain the property of or vest in TESTNEXT or its licensor and be subject to the provisions of this Agreement;

CLIENT will not sell, assign, license, rent out, or give rights to (the right to use) the Program to any third party (except pursuant to Section 2.2 and 2.3), nor may CLIENT use the Program(s) for time sharing, rental, service bureau use or third party training purposes. CLIENT shall not cause or permit the reverse engineering, disassembly, decompilation, translation or adaption of the Program(s) except where CLIENT shall not have received from TESTNEXT within a reasonable time after written request, such information as is available to TESTNEXT and as is necessary to create programs which are interoperable with the Program(s), but which do not infringe TESTNEXT’s intellectual property rights. CLIENT shall have no right to use any code which may be supplied on the media other than that for which a Program(s) license has been acquired. CLIENT acquires only the right to use the Program(s), Documentation and the media upon which the Program(s) or Documentation are supplied and does not acquire any rights of ownership, or any other implied rights whatsoever. All rights, title and interest in or to the Program(s) or Documentation, modifications, enhancements and derivatives shall at all times remain the property of or vest on creation in TESTNEXT or its licensor. CLIENT agrees to execute all such documents as may become reasonably necessary for the purpose of vesting or assigning any intellectual property rights in the modifications, enhancements and derivative works to TESTNEXT or its nominee.

2.2 Transfer and Assignment
The rights granted to CLIENT in this Agreement are personal to CLIENT, and may not be assigned or transferred to a third party without the previous written consent of TESTNEXT.
Transfers will be subject to the terms and payment of fees as specified in TESTNEXT’s transfer policy current at the time of the transfer.

2.3 Merger or Acquisition
CLIENT may transfer its right to use the Program(s) to the purchaser of all or substantially all of the capital stock of CLIENT. The parties involved in the transfer shall provide written prior notice of a permitted transfer to TESTNEXT and the transferee shall, in a writing to TESTNEXT, (a) assume all of the obligations of CLIENT, and (b) agree that transferee’s use of the Program(s) shall be governed by the terms of the then-current license agreement between TESTNEXT and CLIENT or, at TESTNEXT’s sole discretion, by the terms of TESTNEXT’s then-current standard license agreement.

2.4 Verification and Reporting
At TESTNEXT’s written request CLIENT shall provide TESTNEXT with a signed statement verifying that the Program(s) are being used pursuant to the provisions of this Agreement. CLIENT agrees to grant TESTNEXT access, upon reasonable prior notice, to CLIENT’s site in order to audit the use of the Program(s). If such audit establishes CLIENT has unauthorized copies of the Program(s), TESTNEXT reserves the right to charge CLIENT for the costs of performing the audit in addition to the relevant charges for such additional Program(s), all in accordance with TESTNEXT’s then current Price List. In addition, CLIENT consents to and permits TESTNEXT to electronically monitor the Program(s) for support and maintenance purposes, and to review CLIENT’s Program configurations in a non-disruptive manner.

2.5 Technical Restriction
CLIENT acknowledges and agrees that the Program(s) may incorporate technical means of enforcing the licensing terms which may result in CLIENT being unable to utilize the Program(s) outside the terms of the license which CLIENT has acquired.

3. INSTALLATION

3.1 Installation
Installation of the Program will be done by CLIENT. Upon request by CLIENT, TESTNEXT can assist in installing the Program(s) against payment by CLIENT of the then current installation fee.  Except as agreed otherwise in writing, TESTNEXT assumes no responsibility under this Agreement for converting CLIENT’s data files for use with the Program(s).   

4.  SERVICES

4.1 Agreement
TESTNEXT and CLIENT may agree to the provision of Services which, if provided to CLIENT will be on the terms described in this Agreement.

4.2 Support and Maintenance Services
TESTNEXT shall for the Program(s) license term indicated on the Order Form from the Commencement Date, provide the following Support and Maintenance Services: (a) Advice and assistance by email or telephone; (b) Use all reasonable efforts to provide identification and resolution of bugs or errors reported by CLIENT provided the Program(s) is unaltered; and (c) The right to receive a copy of Updates and specific amending Documentation for the Program(s) licensed if and when these become available. For the avoidance of doubt nothing herein shall obligate TESTNEXT to make any specific Update.

TESTNEXT will provide Support and Maintenance Services on Working Days. Support and Maintenance Services will be provided within a reasonable time after a bug or error has been reported to TESTNEXT. TESTNEXT does not warrant that the Program(s) will work without delay or bugs nor that all bugs can be corrected. Recovery of lost data is not included in the Support and Maintenance Services. CLIENT shall cooperate with TESTNEXT in its delivery of Support and Maintenance Services by providing to TESTNEXT troubleshooting and maintenance assistance according to TESTNEXT’s reasonable request and detailed instructions.

The following matters are not covered by basic Support and Maintenance Services:

(a) Any problem resulting from the misuse, improper use, alteration, or damage of the Program(s); (b) Any problem caused by modifications in any version of the Program(s) not made or authorized by TESTNEXT; (c) Any problem resulting from programming other than the Program(s) or equipment; (d) Any problem resulting from the combination of the Program(s) with such other programming or equipment to the extent such combination has not been approved by TESTNEXT; or (e) In case of new Releases, errors in any version of the Program(s) other than the most recent Release, provided that TESTNEXT will continue to support superseded Releases for a reasonable period, not to exceed one (1) year, sufficient for CLIENT to implement the newest Release.

CLIENT agrees that CLIENT is responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware necessary to operate the Program(s) and to obtain maintenance services from TESTNEXT. TESTNEXT will not be responsible for delays in providing Support and Maintenance Services caused by events or circumstances beyond its reasonable control.

4.3 Support for Prior Releases
Prior releases or versions of the Program(s) shall be eligible to continue to receive the Support and Maintenance Services for up to one (1) year from the date of general release of an Update.

4.4 Renewal of Support and Maintenance Services
The Services referred to in this Section will be extended automatically for a period of one (1) year, unless terminated in accordance with Section 10.5.

4.5 Consulting and Training Services
TESTNEXT will provide consulting and training services specified on the Order Form; if any, and otherwise as agreed to by the parties in writing. All consulting and training services shall be billed on a time and materials basis at TESTNEXT’s then current rates for such services and material unless the parties expressly agree otherwise in writing. For any on-site Services requested by CLIENT, CLIENT shall reimburse TESTNEXT for actual, reasonable pre-approved travel and out-of-pocket expenses incurred.

5. PAYMENT PROVISIONS

5.1 License Fees and Prices
License fees or charges for any Program(s) or Services supplied under this Agreement shall be as specified on an Order Form, or in the absence of an Order Form, they shall be TESTNEXT’s standard prices and fees specified in the TESTNEXT price list.  License fees shall be due on the Commencement Date.

5.2 Fees for Support and Maintenance Services
Support and Maintenance fees shall be due annually in advance, for the first time on the Commencement Date and for subsequent years yearly on the same date, unless CLIENT terminated Support and Maintenance Services in accordance with Section 10.5. Fees for Support and Maintenance are calculated as a percentage of the License Fee for the Program according to the Price List current at the time the Support and Maintenance Fee is due.

5.3 Invoicing and Payment
All fees shall be due and payable thirty (30) days from the invoice date. Any amounts payable by CLIENT hereunder which remain unpaid after the due date shall be subject to a late charge equal to one-half percent (1 ½%) per month from the due date until such amount is paid. CLIENT agrees to pay relevant media and shipping charges. 

5.4 Taxes and Duties
Fees include import duty (when applicable) in effect on the date of invoice by TESTNEXT. Fees and other charges are exclusive of, and CLIENT is responsible for, all other duties or taxes. All taxes shall be billed to and paid by CLIENT in addition to the fees at the rate in effect on the date of invoice.

6. WARRANTIES

6.1 Scope of Warranties
TESTNEXT warrants that the Program(s), unless modified shall, for a period of ninety (90) days from the Commencement Date be capable of performing the functions described in the Documentation. TESTNEXT also warrants that CD-ROMS, diskettes or other media provided by TESTNEXT will be free of defects in workmanship and material during normal use for a period of ninety (90) days from the Commencement Date.

TESTNEXT EXPRESSLY DOES NOT WARRANT THAT THE PROGRAM(S) WILL MEET CLIENT’S REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CLIENT, OR THAT THE OPERATION OF THE PROGRAM(S) WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED.  A WARRANTY FOR LOSS OF DATA IS NOT IMPLIED. THE WARRANTIES STATED IN THIS ARTICLE VI ARE CLIENT’S SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE PRODUCTS, AND TESTNEXT HEREBY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TESTNEXT does not warrant the Program(s) for defects discovered in any Program(s) that have been modified, altered or enhanced without TESTNEXT’S prior written consent, unless the changes are not substantial, do not involve the defective part or component, do not entail further uses for the Program(s) beyond those directly contemplated, and did not cause or contribute to any defect. All claims and remedies are limited in the manner expressly provided in this License Agreement. 

6.2 Exclusive Remedies
For any breach of the warranties contained in Article 6.1, CLIENT’s exclusive remedy, and TESTNEXT’s entire liability, shall be:
A. For Program(s).
The correction of a Program’s errors that cause breach of the warranty, or if TESTNEXT is unable to make such Program operate as warranted, CLIENT shall be entitled to terminate such Program license and recover the fees paid to TESTNEXT for such Program license.
B. For Media.
The replacement of defective media returned within 90 days of the Commencement Date.
C. For Services.
The reperformance of the Services, or if TESTNEXT is unable to perform the Services as warranted, CLIENT shall be entitled to recover the fees paid to TESTNEXT for the unsatisfactory Services.

6.3 CLIENT Indemnity
CLIENT shall indemnify and hold harmless TESTNEXT from all loss, liability, and settlement costs, including court costs and reasonable fees of attorneys, resulting from any claims brought against or incurred by TESTNEXT arising from any use by CLIENT of any product not provided by TESTNEXT, but used in conjunction with a TESTNEXT  furnished Program, if such claim for damages would have been avoided by the exclusive use of the TESTNEXT  furnished Program.

7. INTELLECTUAL PROPERTY RIGHT INDEMNITY AND LIABILITY

7.1 Infringement Indemnification
TESTNEXT will defend and indemnify CLIENT against a claim that any of the Program(s) used within the scope of this Agreement infringe a copyright or patent or other intellectual property right, provided that: (a) CLIENT informs TESTNEXT in writing within thirty (30) days of the claim;  (b) TESTNEXT has sole control of the defense and all related settlement negotiations; and (c) CLIENT provides the assistance, information and authority necessary to perform TESTNEXT obligations under this Article.  If these conditions are met, TESTNEXT shall pay all costs and damages finally awarded.

7.2 Limitations on Indemnity Obligations
TESTNEXT shall have no liability for any claim of infringement based upon (a) use of a superseded or altered release of the Program(s) if such infringement would have been avoided by the use of a current unaltered release of the Program(s) that TESTNEXT provides to CLIENT or (b) the combination, operation or use of any Program(s) furnished under this Agreement with software, data, hardware or other materials not furnished by TESTNEXT if such infringement would have been avoided by the use of the Program(s) without such software, data, hardware or other materials or data.

7.3 Remedies
In the defence or settlement of such claims (or if TESTNEXT reasonably believes the Program(s) or Documentation do infringe), TESTNEXT shall have the option at its own expense to (a) modify the Program(s) so it becomes non infringing or (b) obtain for CLIENT a license to continue using the Program(s). If it is not commercially reasonable to perform either of the above options, then TESTNEXT may terminate the license for the infringing Program(s) and refund amounts up to the license fees paid for those Program(s).  This Article 7 states TESTNEXT’s entire liability and CLIENT’s exclusive remedy for infringement.

8. NON DISCLOSURE

8.1 Confidential Information
Following execution of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”).
Confidential Information shall be limited to the Program(s), Documentation and Source Material; all know how, techniques, ideas, principles and concepts which underlie elements of Program(s), Documentation or Source Material, the terms and the pricing under this Agreement and all information clearly identified as confidential.

8.2 Exclusions
A party’s Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction or disclosure; or (d) is independently developed by the other party without breach of the Agreement; or (e) is disclosed by operation of law. Results of benchmark tests run by CLIENT may not be disclosed unless TESTNEXT consents to such disclosure in writing.

8.3 Program(s), Documentation and Source Material
The parties agree that the Program(s), Documentation, Source Material and any other Confidential Information disclosed by one party to the other party shall be kept confidential for the term of this Agreement and thereafter shall be maintained and protected by the other party with the same effort used to protect its own Confidential Information. Except to the extent required by this Agreement, both parties agree not to duplicate in any manner the other’s Confidential Information or to disclose it to any third party or any of their employees not having a need to know for the purposes of this Agreement. The parties further agree not to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. In the event that CLIENT wishes to permit access to the Program(s) to a third party for the performance of services for the CLIENT then CLIENT shall seek TESTNEXT’s prior written consent which if granted will be on the basis that the same conditions of confidentiality will be placed upon such third party.

9. LIMITATION OF LIABILITY

9.1 Misrepresentation, Breach of Warranty or Condition
Whether or not TESTNEXT has been advised of the possibility of such loss, TESTNEXT shall not be liable in respect of any misrepresentation, breach of any implied or express warranty or condition, breach of any other term, or be otherwise liable in contract, tort or otherwise for:
(a) indirect, incidental, special or consequential loss or damage;
(b) loss of revenue, profits, goodwill, data or use however caused which arises out of or in connection with the provision of the Program(s) or Services; or
(c) cost of delay, failure to deliver or late delivery of the Program(s) or Services.

9.2 Total Liability
Subject to section 9.1, TESTNEXT’s total liability arising out of this agreement, and CLIENT’s sole and exclusive remedy for any damages arising out of CLIENT’s use of the licensed program(s) or service(s), shall be limited to CLIENT’s direct damages, but in no event shall such damages exceed the amount of payments made by CLIENT to TESTNEXT pursuant to this agreement.
CLIENT further agrees that TESTNEXT shall not be liable for any damages incurred by the CLIENT or any person as a result of the CLIENT’s use or misuse of the licensed program(s) even if TESTNEXT had been advised of the possibility of such damages. TESTNEXT shall not be liable for: (a) any consequential, special, punitive, indirect or incidental damages of client; or (b) any claim or demand made by a third party against CLIENT. The parties acknowledge that the foregoing limitations of liability shall control over any inconsistent provision of this agreement.

10. TERM AND TERMINATION

10.1 Term
Each license under this Agreement is granted from its Commencement Date and remains in effect for the Program(s) license term as indicated on the Order Form (if not otherwise specified on the Order Form), unless terminated under the provisions of this Article 10.

10.2 Termination
Either party may terminate any Program license or Service provided under this Agreement by reason of breach of a material condition of that Program license or Service by the other party provided the breach has not been remedied within thirty (30) days of receipt of a written notice specifying the breach.

10.3 Bankruptcy
Any Program license or Service provided under this Agreement may be terminated immediately by one party, upon the occurrence of any of the following events: (a) any assignment of the other party’s assets for the benefit of creditors, (b) any dissolution of or substantial attachment or execution of judgment against the other party, or (c) any voluntary or involuntary act of bankruptcy which is not resolved in the other party’s favor within thirty (30) days of filing.

10.4 Effect of Termination
Termination of this Agreement or any Program license or Service provided under these terms and conditions shall not limit nor restrict either party from pursuing any other remedies available to it, including, but not limited to, injunctive relief where appropriate. Such termination shall not relieve CLIENT of its obligations to pay all fees and charges which may have accrued prior to such termination. The parties’ rights and obligations under Sections 2.5, 11.2, 11.3 and 11.4 and Articles 6, 7, 8, 9 and 10 shall survive termination of this Agreement.  Upon termination, CLIENT shall cease using, and shall return or destroy, all copies of the applicable Program(s).

10.5 Termination of Support and Maintenance
CLIENT can terminate its right for Support and Maintenance Services by means of a written notice to TESTNEXT by the end of the support and maintenance period, provided such notice is given at least two (2) months prior to the end of this period. Termination of Support and Maintenance Services will have no influence on CLIENT’s right to use the version of the Program then in its possession.  CLIENT may renew the right for support and maintenance against payment by CLIENT of all fees which had been due in case termination as mentioned above did not take place.

10.6 Return of Program(s) and Documentation upon Termination of License
If any license granted under this Agreement expires or is terminated in accordance with the terms of this Agreement, CLIENT shall forthwith: (a) cease using the applicable Program(s); and (b) certify in writing to TESTNEXT that it has destroyed or returned to TESTNEXT the Program(s) and any copies. This requirement applies to copies of the Program(s) in all forms, partial and complete, on all types of media and computer memory, and whether or not modified and merged into other materials.

11. GENERAL

11.1 Communications
All written notices, invoices and any delivery of Program(s) required to be sent shall be deemed to have been sent when posted by pre paid post or sent by courier or overnight delivery service to the first address listed in the relevant Order Form (if to CLIENT) and shall be deemed received within five (5) working days if sent by first class post or within one working day if sent by courier or overnight delivery service.

11.2 Severability
In the event any provision or part thereof of this Agreement is held to be invalid or unenforceable, the remaining provisions and parts of this Agreement shall remain in full force and effect.

11.3 Waiver
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

11.4 Export
CLIENT agrees to comply fully with all relevant export laws and regulations of the country where each Program license was acquired or each Service was obtained as well as with all United States export laws (hereinafter, collectively referred to as “Export Laws”) to assure that neither any of the Program(s) nor any direct product thereof are: (1) exported, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.

11.5 Entire Agreement
This Agreement, including any referenced written Addenda, Order Forms and Exhibits constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the Program(s) and Services specified herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
Any Services provided by TESTNEXT under this or any other agreement are bid and offered separately from the Program license(s). CLIENT may acquire the Program license(s) without acquiring any Services and CLIENT acknowledges that upon the signing of this Order Form, the Program license(s) and any ordered Services are acquired separately in consideration for the fees stated in the Order Form.
It is expressly agreed that any terms and conditions of CLIENT’s purchase order shall be superseded by the terms and conditions of this Agreement and the Order Form. This Agreement shall also supersede the terms of any on-screen license terms provided electronically or any unsigned license agreement included in any package for TESTNEXT-furnished software, except terms limiting usage of the Program(s) contained in such unsigned license.

11.6 Governing Law
This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of The Netherlands. Any claim arising out of or related to this Agreement must be brought exclusively in the court located in Amsterdam, the Netherlands and you consent to the jurisdiction of the court of Amsterdam.