Education Licenses Terms & Conditions

Terms and Conditions

This Education Agreement (“Agreement”) is made by and between the MEGA group entity as defined in Schedule 2 (“MEGA”) and the University as defined in the applicable form, which has acquired the software programs for educational purposes.



IMPORTANT NOTICE! UNLESS OTHERWISE NEGOTIATED IN A SPECIFIC AGREEMENT BETWEEN THE UNIVERSITY AND MEGA, UNIVERSITY USE OF THE SOFTWARE IS SUBJECT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. THEREFORE, PLEASE SCROLL THROUGH AND READ ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN UNIVERSITY AND MEGA FOR YOUR USE OF THE SOFTWARE.

1. UNIVERSITY WILL INDICATE ITS ACCEPTANCE OF THIS AGREEMENT BY CLICKING OR ALLOWING OR AUTHORIZING A THIRD PARTY TO CLICK “I AGREE” OR A SIMILAR AFFIRMATION AS APPLICABLE WHICH APPEARS DURING THE REGISTRATION OF THE UNIVERSITY, AND PRIOR THE UNIVERSITY HAS BEEN GIVEN ACCESS TO THE SOFTWARE. IF UNIVERSITY IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT UNIVERSITY HAS THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS AND CONDITIONS. IF UNIVERSITY DOES NOT HAVE SUCH AUTHORITY, UNIVERSITY MUST NOT ACCEPT THESE TERMS AND CONDITIONS OR OTHERWISE ACCESS OR USE THE SOFTWARE.

2. IF UNIVERSITY DOES NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT IN ITS ENTIRETY AND WITHOUT MODIFICATION OR ADDITION, THEN UNIVERSITY DOES NOT HAVE A LICENSE TO USE THE SOFTWARE AND SHOULD CONTACT MEGA.



1. DEFINITIONS.

“Documentation” means the help screens accessed within the Software and any printed or electronic user manuals provided to the University together with the Software. Documentation does not include training or course materials licensed or sold separately, or any custom specifications provided to the University.

“Effective Date” means the date on which the University on any third-party on behalf of the University clicks “I Agree” on the form or a similar affirmation as applicable, which appears during the registration of the University.

“Intellectual Property” means, with respect to a party, all forms of intellectual property rights and protections held by such party and may include without limitation all right, title and interest arising under English law, and laws of other countries in and to all (a) patents and all filed, pending or potential applications for patents, including any reissue, re-examination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (b) trade secret rights and equivalent rights; (c) copyrights, other literary property or authors’ rights, whether or not protected by copyright or as a mask work; and (d) proprietary indicia, trademarks, trade names, symbols, domain names, URL’s, logos and/or brand names.

“License Parameter” means definitions and limitations of the University’s license(s) or permitted scope of use for Software, as set forth on the Schedule. A License Parameter may consist of the number of users, users profiles, databases, or any other applicable use limitation and/or measurement specified in the Schedule. Notwithstanding anything to the contrary herein, the University shall have no right to use the Software in excess of the applicable License Parameters.

“Software” means each software program in object code form as specified in the Schedule for licensing by MEGA to the University in accordance with this Agreement, provided that for the purposes of this Agreement “Software” also includes its Documentation and any Updates.



2. SCOPE OF USE; RESTRICTIONS.

2.1 Grant of License. Subject to the terms and conditions of this Agreement, MEGA hereby grants to the University for the duration of the licence term, a free of charge, non-exclusive, non-transferable license to install, access and use the Software specified in the Schedule, solely for the University’s own internal non-profit operations in a research or educational context. The licence granted hereunder is further limited by the Licence Parameters set forth in the Schedule for the relevant Software. In the event that the University exceeds the applicable Licence Parameter MEGA reserves the right to terminate immediately the Contract without prejudice to damages and interests which the MEGA party may reclaim.

2.2 Restrictions. The University’s use of the Software is limited to the equipment and operating system configurations specified in the Documentation, the number of copies, users, profiles, and servers, databases, or such other restrictions as set forth in the Schedule. The University may not use the Software on behalf of or for the benefit of any other person or entity, and may not allow use by any other person or entity, other than the Subsidiaries listed in the Schedule.

Except as expressly specified herein or in the Schedule, the University may not license, sublicense, sell, resell, rent, lease, loan, lend, transfer, assign, distribute or otherwise make available the Software by any means whatsoever. The University may not use the Software as a service bureau, as an application service provider, to perform consulting or training services for any third party or in any commercial time-share arrangement. The University may not use the Software in contravention to any applicable law or mandatory regulations.

The University shall not (i) modify, adapt, decompile, disassemble, reverse engineer the Software, or (ii) create or prepare derivative works based upon the Software or any part thereof, or (iii) remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Software.

MEGA may provide the University with certain information to interoperate the Software with other software applications; the University will request such information and related services to MEGA in the form of a notice under this Agreement. Within a commercially reasonable period of time depending on the complexity of the University’s request, MEGA will answer in writing to the University and, if deemed appropriate, with a proposal of professional services. Notwithstanding the foregoing, (i) the University may permit third parties who have been retained by the University to manage information technology services ("Outsourcers") to access and use the Software, provided that the Outsourcers’ access and use of MEGA’s Confidential Information is only for the benefit of the University and the Subsidiaries in full compliance with the provisions of this Agreement, and the University agrees to be responsible and liable for any breach hereof by an Outsourcer; and (ii) the University may grant access to the Software to governmental and regulatory authorities who, acting within their jurisdiction, require access thereto, provided that the access so granted shall be limited to that necessary under applicable law or regulation.



3. DELIVERY OF SOFTWARE.

MEGA or its authorized designee will deliver the Software to the University promptly following the Effective Date either by electronic delivery, or by physical delivery of media containing the Software at MEGA’s discretion. If the date of delivery is not written in the Schedule, Software will be delivered in a fifty-day period from the date of the signature of the Agreement. If made electronically, delivery shall be deemed to have occurred, and risk of loss transferred to the University, when the University is first provided with electronic access to the Software. MEGA shall choose the method of delivery unless specifically set forth in the Schedule. Delivery of physical media shall be made FCA MEGA’s place of business (Incoterm 2000, as published by the International Chamber of Commerce). The University will be solely responsible for installing the Software on its own computer systems, which shall comply with all relevant requirements set forth in the Documentation.



4. CONFIDENTIALITY.

4.1. Confidential Information. As used in this Agreement, “Confidential Information” means financial data, Software descriptions, potential Software development ideas, database descriptions, business workflow, and business information (including, without limitation, computer programs, software, databases, names and expertise of employees, suppliers, and consultants, University lists, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, University and software development plans, forecasts, strategies and information) which are confidential, nonpublic, competitively sensitive, private, and/or proprietary and which are disclosed by one party under this Agreement to the other party. Although certain of the Confidential Information will be labeled “Confidential” or “Proprietary” (or with some similar wording), or identified orally as such, this Agreement shall also apply to information that the party receiving such Confidential Information should otherwise reasonably construe as confidential or proprietary under the circumstances. By way of example and not limitation, the Software and Documentation shall constitute Confidential Information of MEGA.

4.2. Non-Disclosure. Each party agrees (a) not to use or disclose to any third party the Confidential Information disclosed to it by the other party (“Disclosing Party”) for any purpose other than as contemplated by this Agreement, and (b) to protect the Disclosing Party’s Confidential Information with at least the same degree of care it uses to protect its own Confidential Information, but at a minimum to use commercially reasonable efforts. The confidentiality obligations of this Agreement shall not apply to information received by a party (the “Receiving Party”) that (a) was lawfully received by the Receiving Party from a third party free of any obligation to keep it confidential; (b) is or becomes publicly available, by other than unauthorised disclosure; (c) is independently developed without any reference to the Confidential Information, as evidenced by contemporaneous written records of Receiving Party; or (d) is required to be disclosed by law, regulation or court order; provided that, with respect to any of the foregoing exceptions, the Receiving Party will give the Disclosing Party prompt notice prior to such disclosure. The parties expressly agree that the University shall not provide to MEGA hereunder any nonpublic personally identifiable information relating to individual persons.



5. WARRANTY.

5.1 Limited Warranty. The University acknowledges that (i) the Software is provided "as is" without express or implied warranty. In particular, MEGA does not warrant that the Software is error-free, will operate without interruption, is compatible with the User’s equipment and Products configuration, or will meet otherwise the University’s needs.

5.2 Third-Party Software. The University acknowledges that the Software may contain or be accompanied by certain third parties’ hardware and/or software products (“Third-Party Software”). This Third-Party Software may be subject to special licence notices and terms and/or conditions (“Third-Party Notices”). In this case, they will be listed in the Schedule with a reference to the location where the Third-Party Notices can be read.

The University acknowledges that the Software may also contain Open Source software. The Supplier warrants that the Software does not include any software that requires as a condition of its use, modification, or distribution, that the Software must be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributed free of enforceable intellectual property rights. The Supplier warrants that the Software does not include any code that is licensed or distributed under the GNU's General Public License or variations of the preceding licensing and distribution model. The list of such Open Source software is available on MEGA’s website at the following URL http://community.mega.com/t5/Legal/bg-p/legal or on request from the University to MEGA.

The Third-Party Software and Open Source Software are not warranted by MEGA. The Third-Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between the Third-Party Notices and the other portions of this EULA, the Third-Party Notices will take precedence (but solely with respect to the Third-Party Software to which the Third-Party Notices relate).

5.3 Remedy. If the above warranties are breached, MEGA will, at its option and at no cost to the University, (a) provide remedial services necessary to enable the Software to conform to the warranty, or (b) replace any defective Software. MEGA’s warranty obligations will only extend to material errors that can be demonstrated to exist in an unmodified version of the Software. The University will notify MEGA promptly in writing of any breach of warranty. The University will provide MEGA with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are the University’s sole remedies for breach of the above warranties.

5.4 Exclusions. The foregoing software warranty does not cover any alterations, modifications, parameterisations or changes to the Software. MEGA is not responsible for problems associated with or caused by incompatible operating systems or equipment, for problems in the interaction of the Software with software or systems not furnished or maintained by MEGA, or for installation not performed in compliance with all system requirements set forth in the Documentation. The University assumes full responsibility for the overall effectiveness and efficiency of the operating environment in which the licensed Software is to function. Unless specifically incorporated into a Schedule in writing, no oral or written information or advice given by MEGA or its resellers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.

5.5 DISCLAIMER. THE LIMITED WARRANTIES STATED IN SECTION “WARRANTY” HEREIN SET FORTH THE ONLY REPRESENTATIONS AND WARRANTIES CONCERNING THE SOFTWARE PROVIDED BY MEGA. MEGA, ITS AFFILIATES, OR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, RESULTS, AND THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF MEGA HAS BEEN INFORMED OF SUCH PURPOSE, OR ANY REPRESENTATIONS AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. MEGA SHALL NOT BE RESPONSIBLE FOR THE UNIVERSITY’S USE OF THE SOFTWARE. MEGA, ITS AFFILIATES OR SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO HARDWARE OR NETWORK DOWNTIME, INTERFERENCE, BANDWIDTH, INTERRUPTION, OUTAGE, OR QUALITY OR SPEED OF ACCESS OR TRANSMISSION OF DATA OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO AGENT OR RESELLER OF MEGA IS AUTHORISED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF MEGA AS SET FORTH HEREIN.



6. INTELLECTUAL PROPERTY.

6.1 Intellectual Property. The University shall obtain no rights in any MEGA Intellectual Property (including the Software and any algorithms, methodologies, models, data included in or provided with the Software) except those limited, non-exclusive rights expressly granted under this Agreement. MEGA will retain all ownership rights in and to all MEGA Intellectual Property. The University shall comply with the restrictions on use for the Software and shall take all reasonable steps to prevent unauthorised use, access, copying or disclosure of MEGA Intellectual Property. The University shall promptly notify MEGA of known unauthorized use of any MEGA Intellectual Property. The University shall not contest the validity of the MEGA Intellectual Property.

6.2 Trademarks. The University is not authorized to use any Software or corporate name, designation, logo, trade name, trademark, service name or service mark of MEGA, its affiliates, or suppliers in any marketing materials, offering circular, prospectus or otherwise, without the prior written consent of MEGA. The University agrees not to harm, either directly or indirectly, MEGA’s brand image. All right granted by the MEGA in this article is discretionary and can be withdrawn at any time without explanation.

6.3 Indemnification. 6.3.1 MEGA shall indemnify and hold harmless the University, and its permitted successors and assigns, from and against any damages, liabilities, costs and expenses (including reasonable attorneys’, professionals' fees and court costs) arising out of any third-party claims arising from a claim that the Software as provided to the University by MEGA and as used by the University in compliance with the terms of the Agreement infringes any patent issued as of the Effective Date of this Agreement in a jurisdiction where the University is licensed to use the Software, or any other non-patent Intellectual Property right of a third party; provided however, that (i) the University shall have promptly provided MEGA with written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (ii) MEGA shall have sole control and authority with respect to the defense, settlement, or compromise thereof, provided that the University’s reasonable consent to any such settlement or compromise shall be required unless it includes a full release for all the University Indemnified Parties.

6.3.2 In the event that any Software becomes, or in MEGA’s opinion is likely to become, the subject of a claimed intellectual property infringement or other claim, MEGA may, at its option, (i) procure for the University the right to continue using the Software; or (ii) replace or modify such Software to be non-infringing, without incurring a material diminution in performance or function; or (iii) if neither of the foregoing is, in MEGA’s judgment, reasonably available, MEGA may terminate the applicable license upon notice to the University, in which case the University shall cease use of and return all copies of the Software and related materials.

6.3.3 In no event will MEGA have any obligations under this Agreement or any liability for any claim or action to the extent the claim or action is caused by, or results from: (i) the combination or use of Software with non-MEGA software, services or data, if such claim or action would have been avoided by the non-combined or exclusive use of the Software, (ii) modification of the Software by anyone other than MEGA if such claim or action would have been avoided by use of the unmodified Software, (iii) the University continuing the allegedly infringing activity after notification or after receiving modifications that would have avoided the alleged infringement, or (iv) use of the Software in an application or environment not approved by MEGA.



7. LIMITATION OF LIABILITY.

Under no circumstances will MEGA, its affiliates, or its suppliers be liable to the University for any special, indirect, incidental, consequential, exemplary or punitive damages of any kind, including, but not limited to, compensation, reimbursement or damages on account of the loss of present or prospective profits, expenditures, investments or commitments, whether made in the establishment, development or maintenance of business reputation or goodwill, for loss of data, cost of substitute software, cost of capital, and the claims of any third party, or for any other reason whatsoever. The liability of MEGA, its affiliates, or its suppliers, if any, and the University’s sole and exclusive remedy for damages for any claim of any kind whatsoever under this agreement or with respect to the software provided by MEGA, and regardless of the legal theory or the delivery or non-delivery of any software, shall not exceed 10 000 EUR. The limitations of liability set forth in this section shall not apply to any claims or amounts payable by a party under section “Indemnification” of this Agreement.



8. INSPECTION.

Upon MEGA's written request, and no more than every twelve (12) months, the University shall provide MEGA with a signed certification (a) verifying that the Software is being used pursuant to the provisions of this Agreement and (b) listing all copies and the respective locations of the Software. In addition to the foregoing, at MEGA's written request, and no more than annually, the University will permit MEGA to review and verify the University's deployment and use of the Software for compliance with the terms and conditions of this Agreement, at MEGA's expense. Any such review shall be scheduled at least ten (10) days in advance, shall be conducted during normal business hours at the University's facilities, and shall not unreasonably interfere with the University's business activities. The University agrees to maintain all log files and provide MEGA access to such files during the review. The University also acknowledges that the Software may include password protection, anticopying subroutines or other security measures designed to monitor the usage of the Software for licence management purposes.



9. TERM; TERMINATION.

9.1 Master Agreement. This Agreement shall be in full force and effect as of the Effective Date and shall govern the provision of all Software by MEGA to the University for a period specified in the Schedule 1. Tacit renewal shall not be valid. If the period is not specified, the term of the Agreement shall commence on the Effective Date and shall continue until the following July 31st.

9.3 Termination. This Agreement may be terminated by either party upon written notice if the other party (a) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given written notice thereof. MEGA may terminate this Agreement immediately, on written notice, if the University commits a material breach constituting a violation of MEGA Intellectual Property rights.

9.4 Effects of Termination. Upon termination for any reason, the University shall (i) cease all use of the Software for which the licence is terminated, (ii) promptly destroy or return to MEGA (at the University's expense) any Software and all material containing the affected Software, and any and all related Documentation, including all MEGA Intellectual Property; (iii) expunge all affected Software in its computer systems; and (iv) upon request certify in writing to MEGA the University's compliance with this Section

10. MISCELLANEOUS.

10.1 University Reference. The University agrees that MEGA may (a) use The University’s name in MEGA’s University list and, (b) upon approval by the University, issue a press release generally describing the parties’ relationship under this Agreement.

10.2 Compliance with Laws. Each party represents and warrants that it will comply with all applicable laws and regulations affecting its performance under this Agreement. The University shall adhere to all applicable laws, regulations and rules relating to the export of technical data and shall not export, re-export, or participate in any other transaction in connection with the Software, and any other Software received from MEGA or any technical data obtained therefrom in violation of such applicable laws, regulations and rules unless properly authorized.

10.3 Amendments/Severability. No amendment or modification of this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

10.4 Force Majeure. Performance under this Agreement may be postponed or extended automatically to the extent that either party is prevented from performing its obligations under this Agreement as a result of a cause beyond its reasonable control, such as an accident, act of a civil or military authority, act of God, earthquake, embargo, fire, flood, intervening change in law or governmental regulation, riot, strike, shortage of transportation or communication facilities, pandemic, disruption of telecommunication networks, terrorism or war. 10.5 Governing Law. This Agreement hereunder are governed by the laws of the MEGA entity you are contracting with as set out in the column “Jurisdiction” in Schedule 3, as applied to contracts to be performed wholly within such jurisdiction, and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the French courts located in the country and state of the applicable MEGA entity as set out in the column “Governing Law” of Appendix 3 of this EULA, in any action arising out of or relating to this Agreement, and agree that any action arising out of or relating to this Agreement shall be maintained in the same jurisdiction. In the event of a dispute arising out of or in connection with this Agreement, the party prevailing in such dispute shall be entitled to recover its reasonable expenses, costs and attorneys’ fees, in addition to all other appropriate relief. The English language shall control the interpretation of this Agreement and all other writings and resolution of disputes between the parties.

10.6 Third-Parties. The parties agree that this Agreement is intended by them to be solely for the benefit of the parties hereto and that no third parties are entitled to rely on any deliverables, reports, analyses or other material provided by MEGA, or shall obtain any direct or indirect benefits from this Agreement, have any claim or be entitled to any remedy under this Agreement, or otherwise in any way be regarded as third-party beneficiaries under this Agreement.

10.7 Notices. All notices, requests, or other communications or documents to be given under this Agreement shall be in writing and shall be deemed effective: (i) when delivered by hand; or (ii) one day after posting with a recognized express delivery service specifying priority overnight delivery with written verification of receipt (in the case of intra-national deliveries); or (iii) three days after posting with a recognized international express delivery service specifying priority international delivery with written verification of receipt (in the case of international deliveries). Notices to the parties shall be sent to each such party’s respective registered address as set forth on the first page of this Agreement. Each party may designate a different address or contact person by notice given in the manner provided in this section.

10.8 Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement of MEGA and the University relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements and communications with respect to the subject matter hereof.

10.9 Survival. The terms contained in Sections “CONFIDENTIALITY”, “WARRANTY”, “INTELLECTUAL PROPERTY”, “LIMITATION OF LIABILITY”, “MISCELLANEOUS” of this Agreement shall survive the expiration or termination of this Agreement.

10.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, including a facsimile or a scanned image and/or PDF version, and all of which together shall be considered one and the same Agreement.



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives.





SCHEDULE 1 – List of products



MEGA grants to the University the following products for the period from the Effective Date until the 31st of July 2021:

- HOPEX Application Design Solution

- HOPEX ArchiMate

- HOPEX Business Architecture

- HOPEX Business Process Analysis

   - HOPEX Customer Journey

   - HOPEX for SAP Solution Manager 7.2

- HOPEX DoDAF V2

- HOPEX General Data Protection Regulation

- HOPEX Information Architecture

   - Information Arc. Logical & Physical Profile

   - Information Architecture Logical Profile

- HOPEX IT Architecture V2

- HOPEX IT Portfolio Management

- HOPEX Ideation Management

- HOPEX NAF

- HOPEX Portfolio & Planning

- HOPEX Power Studio

- HOPEX Risk Mapper

- HOPEX Power Supervisor

- HOPEX Project Portfolio Management

- HOPEX Contributor

- HOPEX MainUser

- HOPEX Viewer

- Repository Storage (SQL Server)

- Web Front-End Control





SCHEDULE 2 – List of MEGA entities depending on the country of location of University



Depending on the location of the country of the End-User of the Software, the MEGA entity that End-User will be contracting with will be:

EXHIBIT 3 – Governing Law and Jurisdiction