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END USERS LICENSE AGREEMENT Motivaction Profiler
This End User License Agreement (“EULA”) applies to the remotely accessible demonstration version of the Motivaction Profiler web-based analytics tool.
Please read this EULA carefully before using the demonstration version of the tool. By using the demonstration version of the tool, you accept the terms and conditions set forth in this EULA.
If you do not accept this EULA, you may not use the System.
Account: the personal environment in the System, to which User obtains access after entering its Login Details enabling the use of (the results of) the System in accordance with the EULA;
Confidential Information: any information, trade secrets or other proprietary information in whatever form obtained by the User from Motivaction relating to and connected with the EULA and the System, including but not limited to the results of the System;
Data: all the survey data and other data, information, documentation and/or content provided, changed, uploaded or made availably in the results of the System by Motivaction, provided in the form of text and numbers, files, video’s and audio-visual materials and any other form;
Intellectual Property Rights: all intellectual property rights and related rights such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights and neighboring rights, as well as rights to know-how and sui generis intellectual property rights;
Login Details: the individual and personal combination of login name and password provided to each individual User, used to gain access to the Account;
Motivaction: Motivaction International B.V., a company with limited liability established and existing under the laws of The Netherlands, having its registered offices at Marnixkade 109 F, 1015 ZL, Amsterdam, The Netherlands, registered with the Chamber of Commerce under number 17090769;
System: the demonstration version of the remotely accessible web-based analytics tool of Motivaction, (World of Glocalities) containing (parts of) the Data in a survey database;
User: the natural person that creates an Account and is provided with personal Login Details to access the Account.
Article 2 – Right to use (the results of) the System
2.1 Subject to the terms and conditions set forth in this EULA, Motivaction hereby grants the User a personal, revocable, non-transferable, non-sublicensable and non-exclusive right to distantly access and use (the results of) the System.
2.2 Since the EULA pertains to the use of the demonstration version of the EULA, the User acknowledges and accepts that (the results of) the System are meant to provide the User with an impression of the System. The demonstration version is not suitable for brand activation, target audience differentiation and profiling and/or market penetration analyses. The User furthermore acknowledges and accepts that the Data is obtained at a specific point in time and thus reflects the market at that time. In time, the Data may thus become less relevant or out-of-date. Motivaction is not responsible for any (consequence of) Data becoming less relevant or out-of-date and will not become liable to the User in any way. For the avoidance of doubt, the license does not grant the User access to the raw, underlying Data,
2.3 The User accepts that (the results of) the System contains only the Data, functionalities and information that he finds at the moment of use (“as is” basis). Motivaction may at all times (i) make functional, procedural or technical changes or improvements to the System and (ii) (temporarily or permanently) restrict the use of or terminate the (use of the) System. The User has no right to maintenance and/or support regarding (the use of) the System.
2.4 The User is not permitted to use (the results of) the System for other purposes than those agreed stated in the EULA and is expressly not allowed to grant access to the (results of the) System to any third parties or entities, publically disclose or publish the (results of the) System.
2.5 Each and every use of (the results of) the System is at the User’s own risk and responsibility. Motivaction has no control of and/or interference with the use of (the results of) the System by the User. Motivaction can not be held liable for any decisions or actions of the User based (on the results of) the System and/or any advice the User may provide to third parties.
2.6 The User is solely responsible for the purchase and/or the proper operation of his infrastructure necessary to use (the results of) the System. Motivaction is never liable for damage or costs on account of transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet.
2.7 Motivaction may keep log files of all use by User of the System and/or the Data for the purpose of improving the System, the Data and/or any other services of Motivaction.
Article 3 – Account
3.1 In order to use the System the User must have access to the Account. Motivaction shall provide the User with Login Details to the Account.
3.2 The User accepts and acknowledges that the Login Details are personal. The User is not permitted to make the Login Details know to a third party or to provide a third party access in any manner or for any purpose to the Account. Furthermore, the User is not allowed to use (the results of) the System or access the Account for and/or on behalf of (the interests of) any other person and/or party.
3.3 The User is responsible for maintaining secrecy with regard to the Login Details for the Account. As soon as the User knows or has reason to suspect that Login Details have come into the hands of unauthorized persons, the User must inform Motivaction of this without delay via m.lampert@motivaction.nl, without prejudice to the User’s own obligation to immediately take effective action, such as modifying the Login Details.
3.4 The User accepts and acknowledges that he is at all times responsible and liable for the use of (the results of) the System via its Login Details. The User indemnifies Motivaction against any and all damage and costs arising from and/or related to the access to or the use of (the results of) the System by third parties via its Login Details.
Article 4 – Intellectual Property
4.1 The Intellectual Property Rights in relation to (the results of) the System and the Data are vested in Motivaction or its licensors. Nothing in this EULA is intended to transfer any Intellectual Property Rights to the User.
4.2 The User is expressly prohibited to, without prior written consent from Motivaction:
i) copying or amending (results of the) the System,
ii) reverse engineering the System,
iii) disclosing (results of the) the System to the public or otherwise disclosing it;
iv) using it for direct or indirect commercial purposes or for any purposes other than those for which the System was provided, as apparent from this Agreement, unless such use is permitted by mandatory Dutch law
4.3 The User is prohibited from deleting or amending any designation in (the results of) the System pertaining to the confidential nature of (the results of) the System or its relevant Intellectual Property Rights.
4.4 Motivaction may introduce technical measures to protect the System, for example in connection with an agreed restriction of content or the duration of the right of use. The User is prohibited from deleting or circumventing any such technical facility or giving instructions to do this.
Article 5 – Database
5.1 The database containing the Data as created by Motivaction, is protected by the Dutch Databases Act. This means that, other than allowed under the EULA, requesting a substantial portion of the Data and/or repeatedly and systematically requesting non-substantial portions of the Data constitutes a violation of the Dutch Databases Act.
Article 6 – Guaranties and Indemnification
6.1 The User is liable for and indemnifies Motivaction completely and unconditionally against any damages and costs which Motivaction suffers as a result of (i) an attributable breach by the User of the EULA (ii) an (alleged) infringement of Intellectual Property Rights by the User, (iii) any use the User makes of (the results of) the System, (iv) an unlawful act of the User or (v) any claims of third parties resulting from acts or omissions of the User. All costs and damages that in any way relate to such a claim will be reimbursed by the User.
6.2 The User guarantees that:
i) he has obtained the right to enter into this EULA and use (the results of) the System in accordance with the terms and conditions arising from this EULA;
ii) he will not use (the results of) the System with a (mobile) device which contains viruses, Trojan horses, worms, bots or other software that can damage, disable or delete the System or makes it inaccessible, or which alters, damages or deletes the Data;
iii) he will not infringe on the rights of Motivaction and/or third parties, including – but not limited to – Intellectual Property Rights and rights that relate to the protection of privacy, or harm their interests by using (the results of) the System;
iv) he will not violate the EULA or any applicable laws and/or regulations, or make or enter into any agreement with any third party which would cause a breach or a default under this EULA.
Article 7 – Confidentiality
7.1 The User will not disclose Confidential Information in his possession to third parties without the prior written consent of Motivaction.
7.2 In respect of all Confidential Information originating from Motivaction that is communicated to or otherwise comes into the possession of the User, the User shall:
(i) take all reasonable measures to ensure safe custody and use of the Confidential Information;
(ii) not use Confidential Information for any purpose other than that for which it has been communicated;
(iii) not retain Confidential Information longer than is reasonably necessary, and either return the Confidential Information to Motivaction, including any copies which have been made, immediately after the fulfilment of all the aforementioned obligations or, having obtained Motivaction's consent, to destroy them.
7.3 The User is not obliged to maintain confidentiality with respect to Confidential Information that:
(i) was already in the possession of the User on a non-confidential basis;
(ii) has lawfully come into the possession of the User independently of Motivaction;
(iii) it is legally or statutory obliged to disclose to a judicial or administrative authority, provided that the User will notify Motivaction forthwith of such obligation to disclose.
Article 8 – Privacy
8.1 By obtaining Login Details and by using the System, the User will provide personal data to Motivaction. Motivaction shall process this personal data in accordance with applicable laws and regulations, including but not limited to the Personal Data Protection Act.
Article 9 – Term and Termination
9.1 The User obtains the right to use (the results of) the System as meant in article 2.1 from the moment of acceptance of this EULA. The EULA is entered into for an indefinite period of time.
9.2 In addition to any other provisions in this EULA Motivaction may, without any further notification being required and without becoming liable to pay compensation, (temporarily or permanently) limit, restrict or terminate (in full or in part) the EULA, the use of the Account by User and/or the use of (the results of) the System, specifically in - but not limited to - cases in which the User, in Motivaction’s opinion, has breached any of the provisions in this EULA, without prejudice to Motivaction’s right to take further legal action and/or its entitlement to compensation.
9.3 If the EULA is terminated by operation of law or by any other cause, the System will immediately be made inaccessible to User. The clauses of this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
Article 10 – Liability
10.1 Motivaction accepts no liability for damages that result from the provision of (the results of) the System, an unlawful act, or any other cause, to the extent that is permitted under mandatory law.
10.2 If Motivaction is liable to the User for damages arising from any cause whatsoever, this liability is at any time limited to the direct damages up to an absolute maximum of EUR 5.000,-- [five thousand euros].
10.3 Direct damage is understood to mean exclusively:
i) damage to property;
ii) reasonable costs incurred to prevent or limit direct damages that could be expected from the event on which is the liability is based;
iii) reasonable costs incurrent in determining the cause of the damage.
10.4 Any liability of Motivaction for damage other than direct damage (“indirect damages”), including – but not limited to – consequential damages, loss and/or damage of data, loss of profits and lost sales, missed savings, reduced goodwill and damage through business interruption is excluded.
10.5 This article does not limit the liability of Motivaction, if and in so far as the damage is the result of intentional or willful recklessness on the part of Motivaction or its managers (“own actions”).
10.6 The existence of any right to compensation is always conditional on the User reporting the damage to Motivaction in writing a soon as possible after it has come about. Any claim for compensation vis-à-vis Motivaction will be cancelled simply by the expiry of twelve months after the damage first arose.
Article 11– Force Majeure
11.1 Motivaction may invoke force majeure if the performance of the EULA or any part of the EULA is temporarily, or otherwise, prevented or obstructed by circumstances that are reasonably outside Motivaction’s control, including, without any limitation:
i) obstructed sites or buildings, strikes, riots, disturbances, war, terrorist activities, extreme cold, epidemics, intentional work interruptions, transport delays, earthquakes, fire, storm, floods or water damage;
ii) postponed, cancelled or interrupted delivery to Motivaction of parts, goods or services that it ordered from or that are provided by third parties, malfunctions in the internet, telephone or electricity connection; or
iii) limitations that are imposed by government or by laws and regulations.
Article 12 – Miscellaneous
12.1 This EULA is governed by Dutch law. All disputes, which may arise in connection with or as a result of the EULA, will be exclusively submitted to the competent court in Amsterdam, the Netherlands.
12.2 If at any time any provision of this EULA is or becomes illegal, void or invalid for any reason whatsoever, such invalidity shall not affect the validity of the remainder of the EULA and such invalid provision shall be replaced by Motivaction with such other provision which, being valid in all respects, shall have an effect as close as possible to that of the replaced provision.
12.3 The User is not authorized to transfer, in whole or in part, the EULA and/or any of its rights and obligations arising there from to a third party without prior permission of Motivaction. Motivaction is allowed to assign and/or delegate all or part of the EULA to any third party, without incurring any liability or prior approval of User.
12.4 Motivaction is at all times authorised to amend or supplement this EULA. The most up-to-date EULA can always be found on the registration page of www.worldofglocalities.com. The amended or supplemented EULA will be brought to the User’s attention during the User’s use of the System. If the User continues to use (the results of) the System after this EULA have been amended or supplemented, by such action the User irrevocably accepts the amended or supplemented EULA. If the User does not agree to the amended or supplemented EULA, the only option open to the User is to cease using (the results of) the System.
12.5 Deviations from and additions to the EULA, made or requested by User, are only valid if they have been agreed in writing between Motivaction and User.