General terms and conditions for licenses
Article 1. Terms
These General License Terms are applicable to the preparation, content and performance of all agreements between the Client and Semmtech.
Article 2. Definitions
Confidential Information: information that is 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 which is not pre-conditional for or either supportive of the correct functionality of Software or applications configured with Third Party Material.
Hosting: providing of Software or data via the Internet or intranet under the responsibility of Semmtech
License: the right to use the Software or Model as described in these terms.
Client: party being the license holder and that has agreed to these License Terms.
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. Models are used by software architects and application managers for managing coherency and consistency of Content by configuring software according to 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.
Term(s): Semmtech General Terms and Conditions for Licenses.
Third Party Material(s): content, data, information, applications or other materials which is not property of the Client and/or the Software or Model Provider.
Update: a renewal in Software or a Model which 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 which legitimately has access to and uses the Model, Software and/or data.
Article 3. License
- The Software or Model, whether provided on disk, in read only memory, on any other media or in any other form, are 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 a separate or supplement license terms in which case the terms of that license will govern or supplement the License.
- Semmtech grants a non-exclusive, non-transferable, and non-perpetual license to use a Model or Software without the right to grant sublicense(s). The Client may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Software any part thereof. The Model may only be copied and modified within the context of an agreement with Semmtech. In case a Model is expanded or amended by the License Holder, no license for this sole part or amendment of a Model is required.
- The Client is responsible for careful handling of 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 is conflicting with the interests of Semmtech. In case a Model is implemented in Third Party Materials, no other parties than Semmtech or the Client (as administrator) can be authorised to access and manage the Model. Other parties may solely access user interfaces concerning the management of Content.
- 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.
Article 4. Administration and Maintenance
- Semmtech has the right to improve Software in its own discretion and to enrich or renew Model or Software through new releases of the Model or Software. Semmtech will notify the Client if a change affects the Client.
- The Terms are applicable to all versions of a Model or Software which the Client makes use of, whether or not the Client has knowingly or not gained access to a renewed replacement of a predecessor from Semmtech or from another party, unless specified otherwise in the Terms.
- If the Client identifies a bug or error in Software or a 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 reproduction of a bug or error.
- After notification, Semmtech will execute standard procedures and shall do its best efforts to restore bugs or to make improvements in new versions of a Model or Software. Results will be communicated with the Client depending on the level of urgency and term as defined by Semmtech. Semmtech has the right to offer temporary solutions, work-arounds, or to implement problem preventing functionalities in the Model or Software.
Article 5. Confidentiality
- Any and all information including, but not limited to, all intellectual property rights with respect to the Services is deemed Confidential Information. Client acknowledge that Semmtech owns all right, title and interest in and to the Confidential Information, unless expressly stipulated otherwise in this Agreement.
- Any and all information including, but not limited to, all intellectual property rights with respect to the Client’s Content or materials is deemed Confidential Information.
- 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 and/or Software or Model used.
Article 6. Hosting
- In case Semmtech offers data storage and Software via Hosting then Semmtech will put in 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.
- Semmtech has the right to contract third parties for Hosting.
- 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 and making backups and security.
- In case Semmtech is responsible for Hosting then Semmtech will make sure there is made a minimum of 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 not be transferred to the Client, unless otherwise agreed.
- If Semmtech is not responsible for Hosting then installation and maintenance of required hardware and software is the Client’s responsibility.
- In the case the Client and Semmtech agree on the providing of 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.
- Hosting services can only be provided with a License on Software or data. Termination or extension of a License will automatically lead to the termination or extension of the Hosting.
- In case Hosting is terminated and all invoices of Semmtech have been paid, Semmtech will hand over the data belonging to the Client.
- In case Hosting is terminated and not transferred, the data of the Client will be stored for one month, unless 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 7. Use of Third Party Material and Open Source Programs
- Content created by the Client are 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.
- 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 correctness or completeness of 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.
- Software possibly presents or contains Third Party Material or make the before mentioned available or may contain links to Third Party Material. 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 or links to third parties. Semmtech accepts no responsibility at all for such material.
- 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.
- 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 that is embedded in Software or Third Party Material that uses a Model.
- Third Party Material in Software is made available for the Client’s convenience. The Client agrees upon not using Third Party Material in any way conflicting with the interests of the third party or its legal rights and that Semmtech cannot be held responsible for incorrect use from the part of the Client.
Article 8. Consent to collection and use of data.
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 9. Processing Personal Data
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 poviders of data (hosting) services, and doesn’t require separate data processing agreements between subcontractors for hosting (remote hardware) services and Semmtech other than reference to the general terms and conditions of such providers.
Article 10. Term and termination
- The License on Software or a Model is for an indefinite period of time and effective until terminated taking into account a notice period of three (3) months, unless agreed otherwise. The Client’s rights under the terms will terminate automatically without notice from Semmtech if the Client fails to comply with any term(s) of the Terms. Upon the termination of this License, 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.
- The Client or Semmtech can terminate the License when the other Party becomes subject of bankruptcy or any other judicial procedure due to insolvency, legal restraint, liquidation or by a decision of decomposition or when either Party has come to the opinion that their image or (good) name can be damaged by the other Party and/or its clients.
Article 11. Disclaimer
- 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.
- 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.
- 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.
- No oral or written information or advice given by Semmtech shall create a warranty.
Article 12. Limitation of liability
- Semmtech will be liable only for direct damage attributable to him. Direct damage will include only:
- 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;
- any reasonable costs necessarily incurred to have Semmtech’s defective performance conform to the agreement; and
- 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 this agreement. 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.
- 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 an 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.
Article 13. Third Party Notices Software
- Parts of the Software may utilize or include copyrighted Third Party Material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Software, and 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 Materials. If you do not agree to the terms and conditions of any applicable license agreement or notices (whether or not indicated or referenced below) then you may not use the Software.
- 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. Governing law and forum
The terms and all resulting or connected agreements, and all 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 Terms and relating agreements shall be submitted to the exclusive jurisdiction of the competent court of Amsterdam, including its injunctive relief court.
Version November 2022