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GENERAL TERMS AND CONDITIONS
ORANGE BUTTON FREEMIUM LICENSE
The following terms and conditions shall apply to any End-User Licensee (as defined below) or User (as defined below) using Orange Button in accordance with the Orange Button Freemium License.
Article 1 – Definitions:
In these Terms & Conditions the following words and expressions shall have the following meanings unless the context requires otherwise:
“Agreement”: means the Freemium License agreement between Orange Button International and End-User Licensee as concluded by End-User Licensee by accepting the terms and conditions as set out herein.
“BIM”: means Building Information Modelling.
“BIM Database”: means any data and information derived from the development and usage of Orange Button.
“BIM Project”: means any project by which Orange Button and/or the BIM Database has been used.
“Confidential information”: means all information (verbally or in hardcopy and/or electronic form) with research, developments, business activities, products and/or services of Orange Button International.
“Customer”: means a customer of End-User Licensee residing at, or having its seat or registered office within the Territory, and/or having an IP address within the Territory, who wishes to receive Solutions from End-User Licensee.
“End-User Licensee”: means any company (or person) who has obtained an Orange Button Freemium License from Orange Button International.
“Intellectual Property Rights”: means all intellectual property rights with regard to - and as vested in Orange Button, including any of the following rights to: (i) any work protected by copyright (ii) any trademark for which an application may have been filed or not (including but not confined to any word, figurative or shape mark), (iii) any design or drawing which has been registered or not, or for which an application has been filed, (iv) any neighbouring rights, (v) any know-how or business secret, (vi) other intellectual property rights with regard to - and as vested in Orange Button and/or any right created through use, and any similar rights which exist in another jurisdiction together with any related extension, renewal or reinstatement of such rights, and (viii) any license to any of the foregoing.
“Orange Button”: means the “Orange Button software” from Orange Button International.
“Orange Button Group”: means Orange Button International, and any other company or person directly or indirectly related to one of these companies and/or its shareholders.
“Orange Button Freemium License”: means the license as granted by Orange Button International to End-User Licensee to use Orange Button for its customers within the Territory in accordance with the rights and limitations as set out for Orange Button Freemium Licenses on the website www.orangebutton.app
“Orange Button International”: means the limited liability company Orange Button International B.V. duly incorporated under the laws of The Netherlands, having its corporate seat in Berkel en Rodenrijs (gemeente Lansingerland), The Netherlands and having its principal place of business at (2652 XL) Berkel en Rodenrijs at the Leeuwenhoekstraat 48, The Netherlands, registered with the Chamber of Commerce under number 76621022.
“License Month”: means a period of one (1) month starting upon acceptance of Orange Button Freemium License by End-User Licensee for each User.
“Solutions”: means the function to automatically load BIM firestop products and - systems in a BIM Project.
“Term”: means the term of the as set out in clause 5 of Orange Button Freemium License.
“Territory”: means the world with the explicit exception of Switzerland and The Netherlands.
“User”: means any individual person as registered by End-User Licensee to use Orange Button in accordance with the Orange Button Freemium License.
Article 2 – Orange Button Freemium License
Article 2.1
By accepting these terms and conditions Orange Button International and End-User Licensee. Enter into an License Agreement by which Orange Button International grants to End-User Licensee an Orange Button Freemium License.
Article 2.2
End-User Licensee is in accordance with the Orange Button Freemium License licensed to create one (1) project online and to generate clashlists with a maximum of five (5) times for its customers within the Territory.
Artcle 2.3
Upon registration each User shall receive a unique username and password. User is responsible for the misuse of the username and/or password. User is obliged to keep this information confidential to prevent unauthorized use. In case of misuse End-User Licensee and/or User are obliged to immediately inform Orange Button International. The User is prohibited to transfer the password to any third party.
Upon registration each User shall receive a unique username and password. User is responsible for the misuse of the username and/or password. User is obliged to keep this information confidential to prevent unauthorized use. In case of misuse End-User Licensee and/or User are obliged to immediately inform Orange Button International. The User is prohibited to transfer the password to any third party.
Article 2.4
End-User Licensee is not entitled to transfer any rights and obligations as set out in the Orange Button License and/or these terms and conditions to any third party and End-User Licensee is not entitled to grant any sub-license with regard to the Orange Button to any third party.
Article 2.5
The Orange Button Freemium License as granted by Orange Button International to End-User Licensee shall at all times be subject to these terms and conditions and shall be limited to the sole extent required for the purpose for which this license is granted and shall remain in effect only and as long as the End-User Licensee fully complies with its obligations towards Orange Button International and these general terms and conditions.
The Orange Button Freemium License as granted by Orange Button International to End-User Licensee shall at all times be subject to these terms and conditions and shall be limited to the sole extent required for the purpose for which this license is granted and shall remain in effect only and as long as the End-User Licensee fully complies with its obligations towards Orange Button International and these general terms and conditions.
Article 3 – Term and Users
Article 3.1
End-User Licensee agrees and is aware that the term for the Orange Button Freemium License shall be a License Month.
End-User Licensee agrees and is aware that the term for the Orange Button Freemium License shall be a License Month.
Article 3.2
End-User Licensee is not entitled to increase the number of Users during a License Month.
End-User Licensee is not entitled to increase the number of Users during a License Month.
Article 4 - Limitations of use
Article 4.1
End-User Licensee is prohibited to offer Solutions or to use the Orange Button in any way for Customers in The Netherlands and/or Switzerland and End-User Licensee shall not use the Orange Button in The Netherlands and/or Switzerland.
End-User Licensee is prohibited to offer Solutions or to use the Orange Button in any way for Customers in The Netherlands and/or Switzerland and End-User Licensee shall not use the Orange Button in The Netherlands and/or Switzerland.
Article 4.2
In the event of any breach of an obligation under this Article 4 End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 20,000,00 (in words: twenty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International's right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an Customer of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 4 by End-User Licensee itself.
In the event of any breach of an obligation under this Article 4 End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 20,000,00 (in words: twenty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International's right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an Customer of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 4 by End-User Licensee itself.
Article 4.3
End-User Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should a Customer or User or End-User Licensee not fully comply with its obligations towards Orange Button International as set out in this clause 4.
End-User Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should a Customer or User or End-User Licensee not fully comply with its obligations towards Orange Button International as set out in this clause 4.
Article 5 - Termination
Article 5.1
Either Party shall be entitled to terminate (“ontbinden” in Dutch) the Orange Button Freemium License, without prejudice to its other rights and remedies forthwith on written notice in the event that the other Party:
Either Party shall be entitled to terminate (“ontbinden” in Dutch) the Orange Button Freemium License, without prejudice to its other rights and remedies forthwith on written notice in the event that the other Party:
- commits a material breach of the terms of Orange Button Freemium License not remedied within 30 (thirty) days and after receipt of a written notice thereof; or
- shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking o assets or
- shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order, or
- shall enter into any voluntary arrangement with its creditors, or
- shall be unable to pay its debts as they fall due, or similar arrangement in any jurisdiction.
Article 5.2
Termination (beëindigen in Dutch) of Orange Button Freemium License for any reason whatsoever shall not relieve End-User Licensee of its obligation to make prompt payment in full of any and all amounts owed to Orange Button International which are accrued and outstanding as of the date of termination (beëindiging in Dutch) and shall not relieve either Party from any other liability or obligation which has previously accrued as of such date.
Termination (beëindigen in Dutch) of Orange Button Freemium License for any reason whatsoever shall not relieve End-User Licensee of its obligation to make prompt payment in full of any and all amounts owed to Orange Button International which are accrued and outstanding as of the date of termination (beëindiging in Dutch) and shall not relieve either Party from any other liability or obligation which has previously accrued as of such date.
Article 5.3
Parties agree that the rights and obligations as set out in these terms and conditions that by their nature would be expected to survive expiration or termination of the Orange Button Freemium License, shall survive such expiration or termination (beëindiging in Dutch). Such rights and obligations include, but are not limited to Intellectual Property rights, Confidentiality, governing law and jurisdiction.
Parties agree that the rights and obligations as set out in these terms and conditions that by their nature would be expected to survive expiration or termination of the Orange Button Freemium License, shall survive such expiration or termination (beëindiging in Dutch). Such rights and obligations include, but are not limited to Intellectual Property rights, Confidentiality, governing law and jurisdiction.
Article 6 – Force Majeure
Article 6.1
Orange Button International shall not be liable for failure to perform or delay in performing any obligation towards End-User Licensee, if such failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion, industrial dispute, hacking and or all other forms of cybercrime.
Orange Button International shall not be liable for failure to perform or delay in performing any obligation towards End-User Licensee, if such failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion, industrial dispute, hacking and or all other forms of cybercrime.
Article 6.2
End-User Licensee agrees that Orange Button International shall use its best endeavours to protect Orange Button, the BIM Database and all related information and documentation with regard thereto against hacking and/or any other forms of cybercrime and End-User Licensee agrees that Orange Button International shall not be liable for any damages as a result thereof except in the case of intent or gross negligence on the part of Orange Button International.
End-User Licensee agrees that Orange Button International shall use its best endeavours to protect Orange Button, the BIM Database and all related information and documentation with regard thereto against hacking and/or any other forms of cybercrime and End-User Licensee agrees that Orange Button International shall not be liable for any damages as a result thereof except in the case of intent or gross negligence on the part of Orange Button International.
Article 7 – Limitation of liability and indemnity
Article 7.1
Orange Button International shall not be liable for any failure in the performance of its obligations under Orange Button Freemium License, with the exception of tort or gross negligence of Orange Button International.
Article 7.3
The total liability of Orange Button International for each separate event is for all End-User Licensees together limited to the amount of € 100.000,-- with the exception of gross negligence or tort.
Article 7.4
Any claim of End-User Licensee in the sense as set out above, must be filed within one (1) month after discovery of damages, in default of which End-User Licensee forfeits its rights to claim damages from Orange Button International.
Any claim of End-User Licensee in the sense as set out above, must be filed within one (1) month after discovery of damages, in default of which End-User Licensee forfeits its rights to claim damages from Orange Button International.
Article 7.5
Orange Button International shall not liable towards End-User Licensee, its Users or its Customers for any consequential damage for example but not excluding, loss of profit, lost savings, loss of goodwill, loss due to business interruption, damages as a result of claims of customers or any third party and/or loss of data.
Orange Button International shall not liable towards End-User Licensee, its Users or its Customers for any consequential damage for example but not excluding, loss of profit, lost savings, loss of goodwill, loss due to business interruption, damages as a result of claims of customers or any third party and/or loss of data.
Article 7.6
End-User Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should End-User Licensee not fully comply with its obligations towards Orange Button International as set out in Orange Button Freemium License.
End-User Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should End-User Licensee not fully comply with its obligations towards Orange Button International as set out in Orange Button Freemium License.
Article 8 - Intellectual Property and BIM Database
Article 8.1
End-User Licensee and User acknowledge that all Intellectual Property Rights related to – and/or arising from the use of – Orange Button are exclusively owned by Orange Button International. It is expressly not the intention of End-User Licensee or Orange Button International to transfer any Intellectual Property Rights related to – or arising from Orange Button Freemium License to End-User Licensee.
End-User Licensee and User acknowledge that all Intellectual Property Rights related to – and/or arising from the use of – Orange Button are exclusively owned by Orange Button International. It is expressly not the intention of End-User Licensee or Orange Button International to transfer any Intellectual Property Rights related to – or arising from Orange Button Freemium License to End-User Licensee.
Article 8.2
Parties are aware and agree that all Intellectual Property Rights and data resulting from – and/or arising from the further development of Orange Button and/or the BIM Database are exclusively owned by Orange Button In. End-User Licensee is aware and agrees that by using the Orange Button data of End-User Licensee is generated and stored by Orange Button international. Orange Button International is during and after the Term entitled to use this data and/or any information from the BIM Database.
Parties are aware and agree that all Intellectual Property Rights and data resulting from – and/or arising from the further development of Orange Button and/or the BIM Database are exclusively owned by Orange Button In. End-User Licensee is aware and agrees that by using the Orange Button data of End-User Licensee is generated and stored by Orange Button international. Orange Button International is during and after the Term entitled to use this data and/or any information from the BIM Database.
Article 8.3
End-User Licensee shall not use Orange Button and/or any Intellectual Property Rights related to – and/or arising from the use of – the Orange Button and/or the BIM Database (or parts thereof) after the expiry or termination (beëindiging in Dutch) of Orange Button Freemium License (for whatever reason).
End-User Licensee shall not use Orange Button and/or any Intellectual Property Rights related to – and/or arising from the use of – the Orange Button and/or the BIM Database (or parts thereof) after the expiry or termination (beëindiging in Dutch) of Orange Button Freemium License (for whatever reason).
Article 8.4
End-User Licensee shall always use the trademark Orange Button in connection with any communication about Orange Button and End-User Licensee shall not remove any reference to Orange Button from any form or document.
Article 8.5
In the event of any breach of an obligation under this clause 8 End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 10,000,00 (in words: ten thousand euros), plus € 1,000,00 (in words: one thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International's right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an underlying shareholder of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 8 by End-User Licensee itself.
In the event of any breach of an obligation under this clause 8 End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 10,000,00 (in words: ten thousand euros), plus € 1,000,00 (in words: one thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International's right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an underlying shareholder of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 8 by End-User Licensee itself.
Article 9 – Relations and employees Orange Button Group
Article 9.1
End-User Licensee, is prohibited to directly or indirectly, for themselves and / or for others, independent or otherwise during the Term of Orange Button Freemium License and for a period of five (5) years after termination (beëindiging in Dutch) of Orange Button Freemium License (of whatever cause), or any other company or person directly or indirectly related to
End-User Licensee, is prohibited to directly or indirectly, for themselves and / or for others, independent or otherwise during the Term of Orange Button Freemium License and for a period of five (5) years after termination (beëindiging in Dutch) of Orange Button Freemium License (of whatever cause), or any other company or person directly or indirectly related to
a. to approach any employee of the Orange Button Group, in order to persuade them to terminate any (employment) agreement with Orange Button Group;
b. to employ direct or indirect, assign direct or indirect, any person, employee (or future employee), of the Orange Button Group, or any freelancer on assignment working for any company or person being part of the Orange Button Group, in order for this person to perform any kind of activity or render any service for End-User Licensee, or any other company or person directly or indirectly related to End-User Licensee.
b. to employ direct or indirect, assign direct or indirect, any person, employee (or future employee), of the Orange Button Group, or any freelancer on assignment working for any company or person being part of the Orange Button Group, in order for this person to perform any kind of activity or render any service for End-User Licensee, or any other company or person directly or indirectly related to End-User Licensee.
Article 9.2
In the event of any breach of an obligation under this clause 9, End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 50,000,00 (in words: fifty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International’ s right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by a User, an underlying shareholder of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 9 by End-User Licensee itself.
In the event of any breach of an obligation under this clause 9, End-User Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 50,000,00 (in words: fifty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International’ s right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by a User, an underlying shareholder of any legal entity or person affiliated with End-User Licensee is considered a violation of this article 9 by End-User Licensee itself.
Article 10 – Confidentiality
Article 10.1
End-User Licensee shall during the Term of Orange Button Freemium License and after termination (beëindiging in Dutch) or expiry thereof:
End-User Licensee shall during the Term of Orange Button Freemium License and after termination (beëindiging in Dutch) or expiry thereof:
- keep confidential, and shall not disclose to any third party for any reason, any Confidential Information of Orange Button International without the prior written consent of Orange Button International at its sole discretion; and
- protect the confidentiality of Orange Button International’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information, but in no event using less than a reasonable standard of care.
Article 10.2
Each Party warrants that:
Each Party warrants that:
- the Party and its employees will use the Confidential Information of the disclosing Party solely in accordance with the terms hereof and will not appropriate it for its own use;
- the Party will maintain the confidentiality and security of the Confidential Information during the term, any extension thereof, and/or after termination of Orange Button Freemium License;
- the Party will restrict access to the Confidential Information to those of its personnel (including such personnel employed by its affiliates);
- the Party and its employees and/or authorized subcontractors will not disclose any Confidential Information of the disclosing Party in any manner whatsoever; and
- assistance in obtaining an order protecting the information from public disclosure.
Article 10.3
If a Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other Party, it will promptly notify the other Party of such receipt and tender to the other Party the defense of such subpoena or process. If requested by the other Party, the receiving Party will reasonably cooperate (at the expense of the other Party) in opposing such subpoena or process. To the extent the subpoena or process is ultimately not quashed or limited, the receiving Party will then be entitled to comply with such request (as may have been limited as part of the contestation process) to the extent permitted by law.
If a Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other Party, it will promptly notify the other Party of such receipt and tender to the other Party the defense of such subpoena or process. If requested by the other Party, the receiving Party will reasonably cooperate (at the expense of the other Party) in opposing such subpoena or process. To the extent the subpoena or process is ultimately not quashed or limited, the receiving Party will then be entitled to comply with such request (as may have been limited as part of the contestation process) to the extent permitted by law.
Article 11 - Whole Agreement
Article 11.1
Orange Button Freemium License and these terms and conditions constitute the whole agreement between Orange Button International and End-User Licensee and there are no promises, terms, conditions, obligations, representations or warranties, oral or written, expressed or implied, other than those contained herein. Orange Button Freemium License supersedes any previous agreements between the Parties.
Orange Button Freemium License and these terms and conditions constitute the whole agreement between Orange Button International and End-User Licensee and there are no promises, terms, conditions, obligations, representations or warranties, oral or written, expressed or implied, other than those contained herein. Orange Button Freemium License supersedes any previous agreements between the Parties.
Article 11.2
No amendment to or modification of Orange Button Freemium License is effective unless it is in writing, identified as an amendment to Orange Button Freemium License and signed by an authorized Representative of each Party
No amendment to or modification of Orange Button Freemium License is effective unless it is in writing, identified as an amendment to Orange Button Freemium License and signed by an authorized Representative of each Party
Article 12 - Governing law and jurisdiction
Article 12.1
Any conflict or dispute between Orange Button International and End-User Licensee relating to the Orange Button Freemium License shall be governed solely by the laws of The Netherlands, excluding its conflict of laws principles.
Any conflict or dispute between Orange Button International and End-User Licensee relating to the Orange Button Freemium License shall be governed solely by the laws of The Netherlands, excluding its conflict of laws principles.
Article 12.2
For any conflict or dispute between Orange Button International and End-User Licensee relating to the Orange Button Freemium License solely the District Court of Rotterdam, The Netherlands, will be competent, without prejudice to the right to appeal with the competent Dutch courts.
For any conflict or dispute between Orange Button International and End-User Licensee relating to the Orange Button Freemium License solely the District Court of Rotterdam, The Netherlands, will be competent, without prejudice to the right to appeal with the competent Dutch courts.