General terms and conditions for licenses

Article 1. Terms

1.1. These general terms and conditions apply to the preparation, content, and performance of all offers, activities, and agreements between the Client and Semmtech, under which Semmtech provides Software and Models, or Services and Deliverables such as consultancy regarding information management, tech services such as scripting and software development.

1.2. By accepting a Quotation or providing Semmtech with a purchase order that is accepted by Semmtech, the Client engages Semmtech to perform Services and offer Deliverables as described in the Quotation attached to these terms and conditions or vice versa, as may be amended by parties in writing from time to time. If Client wishes to obtain additional Services or Deliverables from Semmtech, Client will submit a request for a Quotation to Semmtech about the provision of Services and Deliverables.

1.3 Capitalized words shall have the meaning given in these terms and conditions. In case of a conflict or ambiguity between the documents that form part of any agreement between the Client and Semmtech, these terms and conditions shall prevail.

 

Article 2. Definitions

Agreement: the contract between the Client and Semmtech, signed physically, digitally, or explicitly accepted through an online tool, to which these terms and conditions apply unless agreed otherwise.

Confidential Information: information explicitly marked as a subject of copyright of Parties or Content owned, created, or managed by the Client.

Content: data or information created and managed by Users of software that is not pre-conditional for or supportive of the correct functionality of Software or applications configured with Third-Party Material.

Hosting: providing Software or data via the Internet or intranet under the responsibility of Semmtech.

License: the right to use the Software or Model.

Client: the party that signed and/or accepted the Agreement.

Deliverable(s): Deliverables means any materials and information (including but not limited to Software, interfaces, connections, links, websites, databases, Documentation, Models, Specifications, interfaces, plans, methodologies, reports, processes, designs, and equipment) developed or delivered by Semmtech including any changes, modifications, enhancements, further developments of such materials and information and any derivative works, applications or configurations created or applied on the basis thereof.

Model(s): structured information including accompanying documentation, not being programming code, developed and exploited by the Software or Model Provider, which is pre-conditional for or either supportive of the correct functionality of 1) Software or 2) applications configured with Third-Party Material or 3) software developed for the sole purpose of using a Model.

Party / Parties: the Client and the Software or Model Provider.

Semmtech: Semmtech B.V.

Software: series of instructions written in programming code, developed and exploited by the Software or Model Provider, including accompanying documentation, that directs a computer to perform specific tasks or operations. Software is used by application managers who control the configuration of software and Users who manage Content.

Software or Model Provider: Semmtech.

Service(s): all services to be supplied by Semmtech under the Agreement, including the Schedules and Annexes

Term(s): these general terms and conditions as described in this document.

Third-Party Material(s): content, data, information, applications, or other materials which are not property of the Client and/or the Software or Model Provider.

Update: a renewal in Software or a Model that serves to improve the technical functionality or the safety of the Software, such as security updates.

User: a natural person or a uniquely identifiable software system that legitimately has access to and uses the Model, Software, and/or data.

 

Article 3. License

3.1 The Software or Model, whether provided on disk, in read-only memory, on any other media, or in any other form, is licensed to the Client by Semmtech for use only under the Terms. Semmtech reserves all rights not expressly granted to the Client. The rights granted in these Terms are limited to Semmtech and its licensor’s intellectual property rights of the Model or Software and do not include any other patents or intellectual property rights. The Terms will also govern any Model or Software upgrades provided by Semmtech that replace and/or supplement the original Model or Software unless such upgrade is accompanied by separate or supplement license terms, in which case the terms of that license will govern or supplement the License.

3.2 Semmtech grants a non-exclusive, non-transferable, and non-perpetual license to use the Software or Model without the right to grant sublicense(s). The Client may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Software or any part thereof. The Model may only be copied and modified within the context of the Agreement with Semmtech. If a Model is expanded or amended by the License Holder, no license for this sole part or amendment of a Model is required.

3.3 The Client is responsible for carefully handling possible login information handed to the Client, and the Client is accountable for all use of the login information. The Client is not allowed to transfer login information to third parties/others or let third parties/others use login information if the act conflicts with the interests of Semmtech. If a Model is implemented in Third-Party Material(s), no other parties other than Semmtech or the Client (as administrator) can be authorized to access and manage the Model. Other parties may solely access user interfaces concerning the management of Content.

3.4 Semmtech has the right to undertake technical measures in order to protect a Model or Software against unpermitted use. Semmtech is entitled to check if needed on location if the Terms are complied with.

3.5 The Client agrees that individual users working under the Client’s License will personally agree to the End User License Agreement (EULA) upon logging in for the first time in order to commit the user to the terms and conditions agreed upon with the Client.

 

Article 4. Administration and Maintenance

4.1 Semmtech has the right to improve the Software or the Model at its own discretion and to enrich or renew the Model or Software through new releases of the Software or the Model. Semmtech will notify the Client if a change affects the Client.

4.2 The Terms are applicable to all versions of the Software or the Model that the Client uses, whether or not the Client has knowingly or not gained access to a renewed replacement of a predecessor from Semmtech or another party unless specified otherwise in the Terms.

4.3 If the Client identifies a bug or error in the Software or the Model, the Client must describe the bug or error in as much detail as possible and as soon as possible. It concerns information needed for the reproduction of a bug or error.

4.4 After notification, Semmtech will execute standard procedures and do its best to restore bugs or make improvements in new versions of the Software or the Model. Results will be communicated with the Client depending on the urgency level and term defined by Semmtech. Semmtech has the right to offer temporary solutions and workarounds, or to implement problem-preventing functionalities in the Software or the Model.

 

Article 5. Hosting

5.1 If Semmtech offers data storage and Software via Hosting, then Semmtech will put in a commercially reasonable effort to offer the License Holder 24 hours a day, seven days a week, the latest version of the Software, except for planned unavailability for maintenance. Maintenance will be executed within announced time frames and not within office hours as much as possible.

5.2 Semmtech has the right to contract third parties for Hosting.

5.3 If Semmtech is responsible for Hosting, then Semmtech will put in as much effort as can reasonably be expected to secure information for loss, theft, and unauthorized access. If the Client uses the Software on a local computer, then the Client is responsible for storage, backups, and security.

5.4 If Semmtech is responsible for Hosting, then Semmtech will ensure there is at least one backup of data files each working day (excluding national holidays and weekends). This backup is made only to prevent loss in case of calamities like fire or a brownout in order to be able to continue Hosting. The backup will only be transferred to the Client if agreed.

5.5 If Semmtech is not responsible for Hosting, then the Client is responsible for installing and maintaining the required hardware and software.

5.6 If the Client and Semmtech agree to provide Hosting services, the Hosting can be terminated, giving notice of termination taking into account three (3) months, starting on the first day of the next full calendar month, unless parties agree otherwise.

5.7 Hosting services can only be provided with a License for Software or data. Termination or extension of a License will automatically lead to the termination or extension of the Hosting. If Hosting is terminated and all invoices of Semmtech have been paid, Semmtech will hand over the data belonging to the Client.

5.8 If Hosting is terminated and not transferred, the Client’s data will be stored for one month unless the Parties agree otherwise. Semmtech is not obliged to store the Content for a longer period, nor is Semmtech obliged to inform the Client of the permanent deletion of its data.

 

Article 6. Use of Third-Party Material and Open Source Programs

6.1 Content created by the Client is property of the Client, but Semmtech and or licensors of Semmtech own the right, title and interest to the Model (not including extensions made by the Client) or Software.

6.2 Software may enable the Client to access and use Content, data, information, applications, or other Third-Party Material. Semmtech has no responsibility and gives no warranty or guarantee whatsoever for the correctness or completeness of the information provided by third parties and Third-Party Material. The use of Third-Party Material can be subject to additional terms. The Client is expected to be informed of and agree upon terms of third parties if the Client makes use of Third-Party Material.

6.3 Software possibly presents or contains Third-Party Material(s) or makes the before mentioned available or may contain links to Third-Party Material(s). By using Software, the Client acknowledges and accepts that it is not the obligation of Semmtech to inspect or evaluate legitimacy, decency, timeliness, consistency, applicability, quality, conformance with property rights, or any other aspect of such Third-Party Material(s) or links to third parties. Semmtech accepts no responsibility at all for such material.

6.4 The Client acknowledges that open source programs are distributed under the terms of the open source license applicable to each such program and only such license. Any rights associated with open source programs are applicable to only that program and not to any programs owned by Semmtech or its licensors. Where required by open-source licenses, the appropriate references are made in Software.

6.5 The Client acknowledges that it needs to obtain its own copy, own account or own subscription of any program that is identified by Semmtech as Third Part Material(s) that is embedded in Software or Third-Party Material(s) that uses a Model.

6.6 Third-Party Material(s) in the Software is made available for the Client’s convenience. The Client agrees not to use Third-Party Material(s) in any way that conflicts with the interests of the Third-Party or its legal rights and that Semmtech cannot be held responsible for incorrect use on the Client’s part.

 

Article 7. Performance

7.1 Semmtech shall do its best efforts to deliver the Software or the Model carefully and independently, to promote the Client’s interests to the best of his ability, and to achieve a result that is useful to the Client. To the extent necessary, Semmtech shall keep the Client advised of the progress of the work.

7.2 In case time periods are quoted by Semmtech for delivery of the Software or the Model these periods are approximations only, unless the offer/tender states otherwise. If the stipulated period is exceeded, the Client must give Semmtech notice of default in writing.

7.3 Unless otherwise agreed, the performance of tests and the assessment of whether the Client’s instructions, data, and materials are correct or comply with statutory or quality standards do not fall within the scope of the work commissioned to Semmtech.

7.4 Any complaints to Semmtech must be filed in writing at the earliest possible time but not later than within 10 business days after completion of the Software or the Model, failing which the Client will be deemed to have accepted the Software or the Model in its entirety.

7.5 Semmtech shall only be obliged to follow instructions of the Client if this has been expressly agreed in writing. Semmtech shall not be required to follow instructions that change or supplement the substance or scope of the agreed Services. If such instructions are followed, however, the work in question shall be compensated according to Semmtech’s usual rates.

7.6 The Client shall do all things reasonably necessary or required to enable Semmtech to deliver, in particular by supplying (or causing the supply of) complete, sound, and clear data or materials in a timely manner. If this is not provided for in a timely manner or in accordance with the Agreement made, or if the Client otherwise does not fulfill its obligations, Semmtech shall be entitled to suspend execution of the Agreement in whole or in part, and it shall be entitled to charge the ensuing expenses in accordance with its usual rates, all of this without prejudice to Semmtech’s right to exercise any other legal right

7.7 To the best of its knowledge, all delivery and other periods stated or agreed upon by Semmtech have been determined based on data known to Semmtech. Semmtech shall properly exert its best efforts to observe agreed delivery and other periods as much as possible. The mere fact that a stated or agreed delivery or other period has been exceeded shall not cause Semmtech to be in default. In all cases, even if the Parties have expressly agreed on a firm date in writing, the Supplier shall not be in default because of a time period being exceeded until the Client has provided a written notice of default. Semmtech shall not be bound by firm or non-firm delivery or other periods that can no longer be met on account of circumstances beyond its control that have occurred after the Agreement was concluded. Nor shall the Supplier be bound by firm or non-firm delivery periods if the Parties have agreed to modify the substance or scope of the Agreement (such as additional work or change in specifications).

7.8 The Client warrants that there are no third-party rights that are inconsistent with providing Semmtech with equipment, software, materials intended for websites (visual material, text, music, domain names, logos, etc.), databases, or other materials, including draft material, intended for use, adaptation, installation or incorporation (for example, in a website). The

7.9 Client shall indemnify Semmtech against any action based on the claim that such provision, use, adaptation, installation, or incorporation infringes third-party rights.

 

Article 8. Use of results

8.1 Without prior written approval from Semmtech, the Client will not be entitled to any use of the results, Services, or Deliverables that is broader or different from the agreed use. In the event of broader or different use on which no agreement was reached, including any amendment, mutilation, or infringement on the Services or Deliverables, Semmtech will be entitled to compensation due to infringement of its rights.

8.2 The Client will not (or no longer) be permitted to use the results made available, and any license granted to the Client in the context of the work commissioned will lapse:

1. from the moment that the Client fails to fulfill his payment or other obligations under the Agreement or to do so in full, or is otherwise in default unless the default is insignificant by reference to the overall scope of the work;
2. if the Services or Deliverables are terminated (early) for any reason whatsoever unless the consequences are contrary to the principles of reasonableness and fairness.

Article 9. Confidentiality

9.1 Any and all information including, but not limited to, all intellectual property rights concerning the Services is deemed confidential (“Confidential Information”). Client acknowledges that Semmtech owns all rights, title, and interest in and to the Confidential Information unless expressly stipulated otherwise in this Agreement.

9.2 Any and all information including, but not limited to, all intellectual property rights with respect to the Client’s data or materials is deemed Confidential Information.

9.3 Both parties must keep the Confidential Information confidential. The same duty of confidentiality in respect of such facts and circumstances must be imposed on any third parties engaged in the performance of the work commissioned.

 

Article 10. Privacy and Personal Data Processing

10.1 Semmtech declares to agree to and confirm with European and national data processing regulations regarding personal data. For example, Semmtech will not collect, store or process personal data in any way other than necessary for the required working of our services, as can be expected by the Client. Semmtech declares to apply measures to protect personal data as expected by the Client, and in case of a breach, Semmtech will inform the Client and authorities. Client agrees to Semmtech overseeing compliance of similar conditions for its providers of data (hosting) services and doesn’t require separate data processing agreements between subcontractors for hosting (remote hardware) services and Semmtech other than a reference to such providers’ general terms and conditions.

 

Article 11. Consent to collection and use of data.

11.1 The Client agrees that Semmtech and its subsidiaries and agents may collect, maintain, process, and use diagnostic, technical, usage, and related information that is collected and gathered periodically to facilitate the provision of software updates, product support, and other services to the Client (if any) related to the Software or a Model, and to verify compliance with the Terms. Semmtech may use this information, as long as it is collected in a form that does not identify the Client or constitute personal data, to provide and improve products and services.

 

Article 12. Intellectual Property Rights

12.1 Ownership of Background Knowledge remains with Semmtech. “Background Knowledge” means all intellectual property rights that are owned, acquired, or generated by Semmtech or with respect to which Semmtech may grant a license prior to or beyond the scope of the Agreement.

12.2 Ownership of intellectual property rights which are owned, acquired, or generated by the Client, prior to or beyond the scope of the Agreement, remain with the Client. All data and materials from the Client remain the property of the Client.

12.3 Unless otherwise agreed, all drawings, illustrations, prototypes, models, templates, drafts, sketches, films, and other materials or (electronic) data files made by Semmtech in the course of executing the services will remain Semmtech’s property, irrespective of whether they were made available to the Client or third parties.

12.4 Unless otherwise agreed, all intellectual property rights arising from the work commissioned – including patents, design rights, and copyrights – will vest in Semmtech. If any such rights can be acquired only by registration, Semmtech will have the sole and exclusive power to effect such registration.

12.5 The Client shall not be allowed to remove or modify any designation concerning the confidential nature, copyrights, trademarks, business names, or other Intellectual Property Rights from the Services or Deliverables.

12.6 All Intellectual Property Rights to software provided or developed under the Agreement shall be held solely by Semmtech, its licensors, or suppliers. The Client shall only acquire the rights of use expressly granted in the Agreement and by law. Any other or more extensive right of the Client to reproduce Services or Deliverables shall be excluded. A right of use to which the Client is entitled is always non-exclusive and non-transferable to third parties.

 

Article 13. Third-Party Notices Software

13.1 Parts of the Software may utilize or include copyrighted Third-Party Material. Acknowledgments, licensing terms, and disclaimers for such material are contained in the electronic documentation for the Software, and the Client’s use of such material is governed by their respective terms. By using the Software, Client agrees that the use of the Software is governed by the Terms and/or the terms and conditions of any applicable license agreements or notices indicated by Third-Party Material(s).

13.2 Semmtech shall to the best of its ability, include references to other license agreements or Third-Party Materials in a quotation, the documentation of Software or otherwise.

 

Article 14. Termination of the Agreement

14.1 If Semmtech’s work consists of performing work only once and no explicit end date is agreed upon in the Agreement, the Agreement will be concluded automatically after delivery of the agreed-upon results to the Client without a written notice required.

14.2 If Semmtech’s work consists of recurrently performing work (of a similar nature) and does not end when certain conditions or acts are fulfilled, the Agreement in question will be valid for an indefinite period of time unless otherwise agreed in writing. Such Agreement may be terminated only by written notice with due observance of a reasonable notice period of not less than three (3) months.

14.3 Upon the termination of an Agreement concerning licenses, the Client must cease all use of the Model or Software and destroy all copies, full or partial, of the Model or Software. Articles that are intended to survive the end of the license, for example, regarding ownership and confidentiality, shall survive any such termination.

14.4 If the Client gives notice of termination of the Agreement, it must pay Semmtech’s fee and the costs incurred in connection with the work or services performed until the date of termination. Parties are never liable for damages for the termination of the Agreement.

14.5 Both Semmtech and the Client will have the right to terminate the Agreement in whole or in part with immediate effect if the other party is declared bankrupt or is granted a suspension of payments (whether or not provisional). If the Client is declared bankrupt, Semmtech will have the right to terminate the right of use granted. In case of bankruptcy of Semmtech parties will agree and determine an exit plan in due course.

14.6 The Client shall only be entitled to rescind the Agreement if Semmtech imputably fails to perform material obligations under the Agreement and in all cases after having received written notice of default, which is as detailed as possible and in which it has been given a reasonable time period to remedy the breach. In the event of termination by the Client on the grounds as described, the performance already completed and the related payment obligation will not be subject to cancellation, unless the Client provides evidence that Semmtech is in default of that performance. Amounts that Semmtech has invoiced before the dissolution for work performed or delivered properly under the Agreement will remain payable in full with due observance of the previous sentence and will fall due immediately upon termination.

 

Article 15. Price and Payment

15.1 Unless agreed otherwise in the Quotation, payments must be made within thirty (30) days of the invoice date. If Semmtech has not received payment (or payment in full) at the end of that term, the Client will default and owe interest at the statutory rate. All costs incurred by Semmtech in connection with overdue payments, such as costs of litigation and judicial and extrajudicial costs, including the cost of legal assistance, bailiffs, and debt collection agencies, will be for the Client’s account.

15.2 Unless otherwise agreed, Semmtech will have the right to invoice the Client at monthly intervals for Services or Deliverables and costs incurred in performing the work commissioned.

15.3 The Client will pay the amounts due to Semmtech without any reduction or set-off, save for settlement against adjustable advance payments relating to the Agreement that the Client may have made to Semmtech. The Client is not entitled to suspend payment of invoices for services or work that has already been performed.

15.4 The Client shall pay Semmtech the fees specified in the pricelist attached to the Quotation. Unless agreed otherwise in the Quotation, Semmtech has the right to change the tariffs of the Services once a year to compensate for inflation (according to CPI of Dutch CBS).

15.5 If the Client has a recurring purchase of software licenses, Semmtech may change tariffs occasionally. Semmtech will notify the Client at least one (1) month before the price change. If the Client does not agree to the price change, the Client must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Service offer, that price will remain in force for the fixed term.

15.6 If the Client makes regular payments, Semmtech shall be entitled to adjust the applicable prices and rates by providing written notice at least a month in advance once a year. If the Client does not wish to agree to such an adjustment, the Client shall, within thirty days after the notice, be entitled to terminate the Agreement before the date on which the adjustment would have become effective.

 

Article 16. Liability

16.1 Semmtech will not be liable for:

1. errors or defects in materials supplied by the Client;
2. misunderstandings, errors, or defects in the performance of the Agreement if such misunderstandings or errors were caused by acts of the Client, such as late delivery or non-delivery of complete, sound, and clear information and/or materials;
3. errors or defects by third parties engaged by or on behalf of the Client or bugs, errors, or defects in third-party software;
4. inaccuracies in offers made by suppliers or prices quoted by suppliers being exceeded;
5. errors or defects in a design or errors in the text/data if the Client has given his approval or has had the opportunity to perform an inspection and has declined to do so; or
6. errors or defects in design or errors in the text/data if the Client has not had a particular test performed and the errors, would have been apparent in such test.

16.2 Semmtech will be liable only for direct damage attributable to him. Direct damage will include only:

1. reasonable costs to assess the cause and extent of the damage, to the extent that such assessment concerns damage within the meaning of these general conditions;
2. any reasonable costs necessarily incurred to have Semmtech’s defective performance conform to the Agreement; and
3. reasonable costs incurred to prevent or limit the damage, to the extent that the Client demonstrates that those costs led to a limitation of the direct damage referred to in the Agreement.

16.3 Semmtech’s liability for all other damage, such as indirect damage, including consequential damage, loss of profits, mutilated or lost data or materials, or damage due to business interruption, is hereby excluded.

16.4 Save in the event of intent or willful recklessness by Semmtech or Semmtech’s management – therefore, except for persons under their control – Semmtech’s liability for damage or loss arising from the Agreement or any wrongful act committed against the Client will be limited to the amount invoiced for the portion of the work performed, less the costs incurred by the Semmtech in the engagement of third parties, on the understanding that that amount will not exceed EUR 45,000 and will in no event be higher than the benefit that the insurance company may pay to Semmtech.

16.5 Any and all liability will expire twelve months from the date of completion of the work commissioned or services performed.

 

Article 17. Disclaimer

17.1 The Client expressly acknowledges and agrees that use of the Model or Software is at the Client’s sole risk, and the entire risk as to quality, performance, accuracy, compliance is for the Client.

17.1 The Software or Model are provided “as is” and “as available”, with all faults, errors and bugs and without warranty of any kind. Semmtech and Semmtech’s licensors hereby disclaim all warranties and conditions with respect to the Software and the Model, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment, and non-infringement of Third-Party rights.

17.1 Semmtech does not warrant that the functions contained in or services performed by the Software or Model will meet Client’s requirements, that the operation of the Software, Model and services will be uninterrupted or error-free, that any services will be corrected, or that defects in the Model, Software or services will be corrected, or that the Software or Model will be compatible or work with any Third-Party software, models, applications or Third-Party services. Installations of the Software or Model may affect the usability of Third-Party models, software, applications or Third-Party services.

17.1 No oral or written information or advice given by Semmtech shall create a warranty.

 

Article 18. Miscellaneous

18.1 The Client will not be permitted to transfer or assign to third parties any of the rights under the Agreement concluded with Semmtech, save in the event and as part of a transfer of the Client’s entire business.

18.2 The illegality, invalidity, or unenforceability of any clause or part of the Agreement will not affect the legality, validity, or enforceability of the remainder of the Agreement. If any such clause or part is found by any competent court or competent authority to be illegal, invalid, or unenforceable, the parties agree that they will substitute such provisions with another provision or, if need be, another form of cooperation, the effect whereof is as similar to the offending provisions as possible, without thereby rendering them illegal, invalid or unenforceable.

18.3 Except as expressly provided in the Agreement, no change, waiver, modification, or discharge of the Agreement shall be of any force or effect unless in writing and signed by the parties.

 

Article 19. Governing law and forum

The Agreement between the Client and Semmtech and the connected rights and obligations shall be governed by and construed in accordance with the laws of the Netherlands. All disputes arising in connection with the Agreement and related Agreements shall be submitted to the exclusive jurisdiction of the competent court of Amsterdam, including its injunctive relief court.

Version: January 2024