This End-User License Agreement (“Agreement”) governs the terms and conditions upon which Licensee has obtained a license regarding Mendix Operations Manager through a Blue Storm Partner or Blue Storm directly, as the case may be. Blue Storm and Licensee shall herein referred to each as a “Party” and collectively as the “Parties”.

1 Definitions​

All capitalized terms used in this Agreement that are not otherwise defined herein, shall have the meaning shown below, for both singular and plural forms. Unless otherwise specified, any reference in this Agreement to a section or other subdivision is a reference to a section or subdivision of this Agreement.

1. “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
2. “App” or “Application” means Licensee’s Application Model as deployed on and interpreted by the Mendix Platform in order to make it a functioning application ready to process Licensee Data.
3. “Application Model” means the visual model of Licensee’s application, which visual model has been created by Licensee or by a third party per Licensee’s instructions and requirements, making use of the Mendix Platform.
4. “Claim” has the meaning given to it in section 8.1 (Blue Storm Indemnification).
5. “Confidential Information” has the meaning given to it in section 3.1 (Confidential Information).
6. “Documentation” means the documentation provided by Blue Storm to assist users in the use of Mendix Operations Manager describing the operational functionality of (elements of) Mendix Operations Manager, including user and system administrator guides and manuals, found in the Mendix Operations Manager product.
7. “DPA” has the meaning given to it in section 7.5 (Data Protection).
8. “End-of-Life-Date” has the meaning given to it in section 2.7 (End-of-Life-Date).
9. “Feedback” means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer, its Affiliates, and/or Users relating to the features or operation of Mendix Operations Manager and Documentation or services.
10. “Incident” has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
11. “Licensee Data” means any electronic information, including but not limited to, any data, information or material, such as posts, comments, documents, project information, application data, user information and account information which is submitted, created, saved, added, uploaded or made available in the Application. For the avoidance of doubt, the Application Model is not part of Licensee Data.
12. “Blue Storm” is a trade name of a private limited liability company under Dutch law with the name Whalen Enterprises B.V. and/or any affiliated or subsidiary company
13. “Mendix Operations Manager” means all software and services provided by Blue Storm whether such software and services are provided physically at Licensee’s location, through the internet or installed on Licensee’s hardware, including but not limited to, the Blue Storm website(s) and Documentation.
14. Private Mendix Operations Manager Programming Interface (“Private API”) is any API that is not explicitly published by Blue Storm as a public API.
15. “Mendix Platform” means all software and services provided by Mendix (www.mendix.com) whether such software and services are provided physically at Licensee’s location, through the internet or installed on Licensee’s hardware, including but not limited to, the Mendix website(s), (Web / Desktop) Modeler, Team Server, Platform Portal (Cloud Portal and Developer Portal), App Store, Support Portal, Partner Portal, Mendix Cloud, Mendix Runtime, Mendix Community, Mendix Forum, Sandbox, Platform-as-a-Service, and Documentation.
16. “Legal Notices” has the meaning given to it in section 9.7 (Notices).
17. “Losses” has the meaning given to it in section 8 (Indemnification).
18. “Order Document” means an ordering document provided by a Blue Storm Partner and signed by Licensee, which details, amongst other things, the subscription or other services to be provided by Blue Storm, the applicable usage limitations and the price payable by Licensee for Mendix Operations Manager and related services, and the term for which Mendix Operations Manager and any related services are provided.
19. “Representatives” has the meaning given to it in section 3.1 (Confidential Information).
20. “Security Breach” has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
21. “Subscription Term” means the term for the recurring/ongoing services, such as subscription items, as set forth in the relevant Order Form.
22. “Update” means a modification made by Blue Storm to Mendix Operations Manager and provided to Licensee under the terms and conditions of this Agreement. Updates shall not include any version, option or future products provided by Blue Storm not included in the subscription as set forth in the relevant Order Form.
23. “Upgrade” means a new, major software release of Mendix Operations Manager whose primary purpose is to add new functionality or enhance the performance of Mendix Operations Manager, which is identified by an increment in the first two (2) numbers of the software version. Notwithstanding the foregoing, an Upgrade will not include new software or modules (whether or not branded as Blue Storm software) that Blue Storm markets and prices separately.
24. “Users” means individuals who are authorized by Licensee to use Mendix Operations Manager and have been supplied passwords by Licensee (or by Blue Storm at Licensee’s request). Users consist of any employee of Licensee or its Affiliates and any independent contractor of Licensee or its Affiliates.

2 Access​

2.1. Access. Blue Storm shall (a) provide Licensee with (access to) Mendix Operations Manager and related services, specified on an Order Document, pursuant to this Agreement, and (b) use commercially reasonable efforts to make Mendix Operations Manager available 24 hours a day, 7 days a week, save for: (i) planned downtime (of which Blue Storm will give advance electronic notice as provided in the Documentation and/or applicable service level agreement); and (ii) any unavailability caused by circumstances beyond the reasonable control of Blue Storm as set forth in section 9.10 (Force Majeure). Support will be provided in accordance with the service level determined in the applicable Order Document and as set forth in the applicable service level agreement. Any conflict between the terms and conditions set forth in this Agreement, the applicable service level agreement and any Order Document shall be resolved in favor of this Agreement, unless explicitly agreed otherwise in writing. Licensee agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Blue Storm regarding future functionality or features.

2.2. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of the subscription fees set forth on the applicable Order Document, Blue Storm hereby grants to Licensee and its Affiliates, solely during the Subscription Term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)) license to access and use Mendix Operations Manager solely for Licensee’s internal business purposes. This license is restricted to use by Licensee and its Affiliates, and its Users and does not include the right to use Mendix Operations Manager on behalf of any third party. Furthermore, this license is subject to the limitations set forth on the applicable Order Document, including but not limited to: instances, users, storage, memory, time or other designated metric. Licensee and its Affiliates obtain a right to use and access Mendix Operations Manager only, and therefore have no right to receive a copy of the source code of Mendix Operations Manager. Licensee is responsible for procuring and maintaining the network connections that connect Licensee to Mendix Operations Manager. Licensee agrees: (i) that only authorized Users are permitted to use Mendix Operations Manager; (ii) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement; and (iii) to otherwise take all commercially reasonable steps to protect Mendix Operations Manager and the Documentation from unauthorized use and/or access.

2.3. Feedback. Notwithstanding anything to the contrary in this Agreement, Licensee hereby agrees that all intellectual property rights in the Feedback, and all other ownership in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to Mendix Operations Manager, are hereby assigned to Blue Storm and shall be the sole and exclusive property of Blue Storm. All Feedback shall be treated as Blue Storm’ Confidential Information.

2.4. License Restrictions. Notwithstanding anything set forth in this Agreement to the contrary, Licensee may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit Mendix Operations Manager in any other way than explicitly allowed under this Agreement; (ii) make Mendix Operations Manager available to anyone who is not a User; (iii) create any derivative works based upon Mendix Operations Manager or Documentation other than an Application Model; (iv) copy any feature, design or graphic, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of Mendix Operations Manager; (v) access or let anyone access Mendix Operations Manager in order to build a competitive solution or to assist someone else to build a competitive solution; (vi) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) send, upload, store or otherwise transmit, display or distribute any unlawful, infringing, tortious, obscene, threatening, abusive, harassing, defamatory, vulgar, libelous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable material, including but not limited to children or material that violates third party privacy rights or infringes any proprietary rights or intellectual property rights; (viii) interfere with or disrupt the integrity or performance of Mendix Operations Manager or the data contained therein; (ix) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or (x) use Mendix Operations Manager in a way that violates any criminal, public or civil law. (xi) call a Blue Storm “Private API” from other systems than Mendix Operations Manager

2.5. Affiliates. Subject to the terms of the Order Document, Licensee may make Mendix Operations Manager available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that Licensee shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.

2.6. Licensee Responsibility. Licensee is and remains responsible for: (i) all activities conducted under its User logins and for its Users’ compliance with this Agreement; (ii) maintaining up-to-date hard-/software that is compatible with Mendix Operations Manager, as set out in the Documentation; (iii) a high-speed/broadband internet connection of good quality and reliability to access Mendix Operations Manager and/or Applications; (iv) scheduling, implementing and/or installing changes for Updates and Upgrades of Mendix Operations Manager, as well as for upgrading of Licensee’s equipment in order to make efficient use of Mendix Operations Manager; and (v) providing all information, access and good faith cooperation reasonably necessary to enable Blue Storm to meet its obligations under this Agreement and/or an Order Document (if Licensee fails to do so, Blue Storm will be relieved from its obligations under such agreement to the extent that such obligations are dependent upon Licensee’s performance or cooperation).

2.7. End-of-Life-Date. Blue Storm recognizes that Licensee may have legitimate business reasons for not upgrading to a new, major software release of the Mendix Platform as soon as an Upgrade becomes available. However, Blue Storm will only support the current major release and the two (2) prior major releases of the Mendix platform.

2.8. Non-Blue Storm Providers. Blue Storm or third parties may make available (e.g. through a marketplace or otherwise) third-party products or services, including, but not limited to: (i) web-based, mobile, offline or other software application functionality that is (a) provided by Licensee or a third party and interoperates with a service, including, for example, an application that is developed by or for Customer, or (b) is listed on a marketplace (such as app services, layouts, modules, themes, widgets, GitHub or connectors); and (ii) implementation and other consulting services. Any acquisition by Licensee of such products or services, and any exchange of data between Licensee and any non-Blue Storm provider, product or service is solely between Licensee and the applicable non-Blue Storm provider. Blue Storm does not warrant or support such non-Blue Storm functionality or other non-Blue Storm products or services, whether or not they are designated by Blue Storm as ‘certified’ or otherwise, unless expressly provided otherwise in an Order Document.

3 Confidentiality​

3.1. Confidential Information. Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software and unannounced product information (“Confidential Information”). Confidential Information shall also include the Application Model, Licensee Data and any other information disclosed by a Party to the other Party, in whatever form, including visually and orally, and designated in writing as proprietary or confidential, or which – to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates – is of a proprietary or confidential nature. During the term of this Agreement and following three (3) years after its termination, each Party will not disclose any such Confidential Information except as set forth herein. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The Parties expressly agree that the terms of this Agreement are Confidential Information and Licensee further agrees that it shall not use the services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without Blue Storm’ prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

3.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, where legally permitted to do so, it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

3.3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

4 Warranties; Disclaimer​

4.1. General. Each Party represents and warrants that: (i) it has the legal power to enter into and perform under this Agreement; and (ii) it will comply with all laws and regulations in the performance of this Agreement. Blue Storm has implemented and will maintain during the term of this Agreement security measures reasonably designed to protect the confidentiality, security and availability of the Customer Data.

4.2. Mendix Operations Manager Warranties. Blue Storm warrants that: (i) Mendix Operations Manager will function substantially as described in the Documentation; and (ii) Blue Storm owns or otherwise has secured the right to provide Mendix Operations Manager to Licensee and its Affiliates under this Agreement.

• 4.2.1. Notwithstanding any service level arrangements between the Parties, if Mendix Operations Manager does not function substantially in accordance with the Documentation, Blue Storm must, at its option and at its own expense, either (a) modify Mendix Operations Manager to conform to the Documentation, or (b) provide a workaround solution that will reasonably meet Licensee’s requirements. If neither of these options is commercially feasible, either Party may terminate the relevant Order Document under this Agreement, in which case Blue Storm shall refund to Licensee all fees pre-paid to Blue Storm under the relevant Order Document for the period in which Mendix Operations Manager will remain unused by Licensee.
• 4.2.2. However, Blue Storm makes no warranties: (i) to the extent that Mendix Operations Manager has been modified by Licensee, its Affiliates or any third party, unless such modification has been approved by Blue Storm in writing; (ii) for a version of Mendix Operations Manager that has passed its End-of-Life-Date; or (iii) for errors, omissions, problems, malfunctions, faults, etc. in Mendix Operations Manager caused by any third-party software or hardware, by accidental damage or by other matters beyond Blue Storm’ reasonable control.

4.3. No Other Warranty. BLUE STORM DOES NOT REPRESENT THAT MENDIX OPERATIONS MANAGER WILL BE ERROR-FREE, OR THAT IT WILL MEET LICENSEE’S REQUIREMENTS, OR THAT IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS OR ERRORS IN MENDIX OPERATIONS MANAGER, OR THAT THE OVERALL SYSTEM THAT MAKES MENDIX OPERATIONS MANAGER AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND LICENSEE’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE USE OF MENDIX OPERATIONS MANAGER WILL BE UNINTERREUPTED OR ERROR FREE. BLUE STORM MAKES NO WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY THIRD PARTIES. THE WARRANTIES STATED IN SECTION 4 (WARRANTIES) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY BLUE STORM, THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSEE ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER MENDIX OPERATIONS MANAGER ARE ACCURATE OR SUFFICIENT FOR LICENSEE’S PURPOSES, AS WELL AS THE SELECTION OF MENDIX OPERATIONS MANAGER AND DOCUMENTATION NECESSARY TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF MENDIX OPERATIONS MANAGER.

5 Limitation of Liability​

5.1. Consequential Damage Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION) IN CONNECTION WITH THE USE OR PERFORMANCE OF MENDIX OPERATIONS MANAGER, OR THE USE OR PERFORMANCE OF ANY OTHER OBLIGATION UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.

5.2. Limitation of Liability. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE AGREEMENT, THE APPLICATION AND/OR RELEVANT ORDER DOCUMENT/FORM SHALL NOT – IN ANY EVENT, OR MULTIPLE, RELATED SUBSEQUENT EVENTS – EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY LICENSEE TO BLUE STORM UNDER THE APPLICABLE ORDER DOCUMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.

5.3. Exclusions. HOWEVER, NOTHING IN THIS SECTION 5 SHALL HAVE THE EFFECT OF LIMITING A PARTY’S LIABILITY FOR (a) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF THE OTHER PARTY, (b) ITS INDEMNITY OBLIGATIONS, (c) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (d) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR (e) INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

6 Term and Termination​

6.1. Term. This Agreement will commence on the date Licensee has duly executed and returned this Agreement to Blue Storm, and will continue in effect until otherwise terminated in accordance with section 6.2 (Termination) below. The Subscription Term shall be set forth on the Order Document. Unless otherwise expressly provided in the applicable Order Document, the Subscription Term shall automatically renew for additional terms of one (1) year each unless either Party notifies the other Party in writing at least sixty (60) days prior to the then current expiration date that it has elected not to renew. The per-unit pricing during any automatic renewal Subscription Term will be the same as that during the immediately prior Subscription Term, unless Blue Storm has given Licensee written notice of a pricing increase at least ninety (90) days prior to the end of the then current Subscription Term, in which case the pricing increase will be effective upon subscription renewal and thereafter. Any such pricing increase will not exceed 5% of the subscription pricing in the immediately prior subscription term, unless the pricing in the prior Subscription Term was designated in the relevant Order Document as promotional or one-time.

6.2. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Document immediately (a) in the event of a material breach of this Agreement or any such Order Document by the other Party that is not cured within thirty (30) days of written notice from the other Party; or (b) if the other Party ceases doing business or is the subject of a bankruptcy or insolvency proceeding, that is not dismissed within sixty (60) days of filing. Termination or expiration of an Order Document shall not be deemed a termination of this Agreement. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Documents then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form and SOW, including but not limited to sections 3 (Confidentiality), 4 (Warranties; Disclaimer), 5 (Limitation of Liability), 7 (Ownership; Licensee Data; Data Protection; Security), 8 (Indemnification), 9.5 (Disputes), 9.7 (Notices), 9.14 (Non-Solicitation of Employees) and 9.16 (Waiver and Severability).

6.3. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Document, Blue Storm shall no longer provide Mendix Operations Manager as applicable to Licensee and Licensee shall promptly cease and cause its Users to promptly cease using Mendix Operations Manager. Licensee shall pay Blue Storm for all fees that had accrued prior to the termination or expiration date. Blue Storm also reserves the right to suspend Licensee’s access to Mendix Operations Manager at any time, without having to terminate this Agreement or an Order Document, if Licensee is more than sixty (60) days late with respect to any undisputed payments due hereunder. Except as expressly provided herein, termination of this Agreement by either Party will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon termination or expiration of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession, provided, however, Licensee may retrieve all Licensee Data as set forth in section 7.9 (Data Portability).

7 Ownership; Licensee Data; Data Protection; Security​

7.1. Ownership Mendix Operations Manager. Licensee acknowledges and agrees that as between Blue Storm and Licensee, all right, title and interest in and to Mendix Operations Manager and Documentation, and including all modifications and configurations, all Blue Storm data and Confidential Information, and all of Blue Storm’ proprietary technology, including without limitation, all software, products, processes, algorithms, user interfaces, knowhow, techniques, designs and other tangible or intangible technical material or information made available to Licensee by Blue Storm in providing Mendix Operations Manager and Documentation and all derivatives thereof are and shall remain Blue Storm’ or its licensors’. The Blue Storm name and logo, and the product names associated with Mendix Operations Manager are trademarks of Blue Storm or third parties, and no right or license is granted to use them. During the term of this Agreement, Blue Storm grants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)), royalty-free right to use, display, transmit, and distribute the Blue Storm data solely in connection with Licensee’s permitted use of Mendix Operations Manager and Documentation. Blue Storm shall have the right to collect, use and distribute aggregated information, analysis, statistics and other data generated by Mendix Operations Manager and Documentation (or derived from Licensee’s use of Mendix Operations Manager and Documentation) provided, however, that Blue Storm shall not disclose any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify the data as associated with Licensee or any of its Users.

7.2. Ownership of Licensee Data and Application Model. Licensee retains ownership of all right, title and interest in and to all Licensee Data and the Mendix Application Model. During the term of this Agreement, Licensee hereby grants to Blue Storm a limited, worldwide, non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)), royalty-free right to use, store, display, transmit, and distribute Licensee Data and the Application Model solely as necessary to provide its services to Licensee, and for no other purpose whatsoever.

7.3. Licensee Data. Licensee is solely responsible for the accuracy, integrity and quality of Licensee Data for use in Mendix Operations Manager and Mendix Application Model. Blue Storm shall not modify or add to the Licensee Data and Blue Storm shall not make any claim for any right of ownership in the Licensee Data and/or Mendix Application Model.

7.4. Back-up and Disaster Recovery. The Licensee Data is automatically backed-up daily. Back-ups are stored in secure, geographically dispersed locations and Blue Storm offers disaster recovery services. Upon termination of this Agreement or the expiration of the last term under an Order Document Blue Storm shall no longer have the obligation to preserve or back-up any Licensee Data.

7.5. Data Protection. Each Party to this Agreement warrants that it shall (seek to) comply at all times with its obligations under data protection laws and regulations applicable to the Parties in connection with the provision and consummation of the services hereunder. These obligations are described in the Mendix Operations Manager Data Processing Agreement (www.bluestorm.io/mxom-dpa/) that was valid on the date of the acceptance of this EULA, and which forms an integral part of this EULA.

7.6. Organization Level Security Measures. Blue Storm commits to embed security in company processes and standard operating procedures by adopting a representative subset of the ISO 27001 Information Security Framework.

7.7. Incident Management and Breach Notification. Blue Storm evaluates and responds to incidents that create suspicion of unauthorized access to or handling of Licensee Data (“Incident”). Blue Storm is informed of such Incidents and, depending on the nature of the activity, defines escalation paths and response teams to address those Incidents. Blue Storm will work with Licensee and, where necessary, with outside law enforcement to respond to the Incident. The goal of the Incident response will be to restore the confidentiality, integrity, and availability of the services, and to establish root causes and remediation steps. For purposes of this section 7.8, “Security Breach” means the misappropriation of Licensee Data located on Blue Storm systems that compromises the security, confidentiality or integrity of such information. Blue Storm will inform Licensee within 36 hours if Blue Storm determines that Licensee Data has been subject to a Security Breach (including by a Blue Storm employee) or any other circumstance in which Licensee is required to provide a notification under applicable law, unless otherwise required by law. Blue Storm will promptly investigate the Security Breach and take reasonable measures to identify its root cause(s) and prevent a recurrence. As information is collected or otherwise becomes available, unless prohibited by law, Blue Storm will provide Licensee with a description of the Security Breach, the type of data that was the subject of the breach, and other information Licensee may reasonably request concerning the affected persons. The Parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected persons and/or the relevant data protection authorities.

7.8. Data Portability. At all times during the subscription term and at the latest until thirty (30) days have passed following the earliest of (a) termination of this Agreement or (b) the expiration of the last term under an Order Document, Licensee may retrieve all Licensee Data in accordance with established and reasonable system access procedures. After such period, Blue Storm will have no further obligation to store and/or make available the Licensee Data and may delete the same, except as may be required by law.

7.9. Legally Required Disclosures. Except as otherwise required by law, Blue Storm will promptly notify Licensee of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority that it receives and which relates to Licensee Data. At Licensee’s request, Blue Storm will provide Licensee with reasonable information in its possession that may be responsive to such demand and any assistance reasonably required for Licensee to respond to said demand in a timely manner. Licensee acknowledges that Blue Storm has no responsibility to interact directly with the entity making the demand.

8 Indemnification​

8.1. Blue Storm Indemnification. Subject to section 8.3 (Indemnification Procedure) below, Blue Storm will indemnify, defend and hold Licensee and its Affiliates harmless from and against any claim, demand, suit, action or proceeding (collectively, a “Claim”), and will pay any costs, liabilities, losses, and expenses (including but not limited to, reasonable attorneys’ fees) awarded against Licensee either in judgment or settlement agreed to by Blue Storm in writing (collectively, “Losses”), arising out of or in connection with an allegation by a third party against Licensee or any of its Affiliates that the use of Mendix Operations Manager and Documentation as permitted hereunder infringes any intellectual property right or constitutes a misappropriation of a trade secret of a third party. Excluded from Blue Storm’ above indemnification obligations are claims to the extent arising from: (i) use of Mendix Operations Manager and Documentation in violation of this Agreement or applicable law; (ii) continued use by Licensee of Mendix Operations Manager and Documentation after Blue Storm has notified Licensee in writing to cease the use of Mendix Operations Manager and Documentation; (iii) any claim relating to any third-party products or services or Licensee Data; (iv) modifications to Mendix Operations Manager and Documentation made other than by Blue Storm (where the claim would not have arisen but for such modification); (v) the combination, operation, or use of Mendix Operations Manager with software or equipment which was not provided by Blue Storm, to the extent that Licensee’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (vi) compliance by Blue Storm with Licensee’s custom requirements or specifications if and to the extent such compliance with Licensee’s custom requirements or specifications resulted in the infringement. If Licensee’s use of Mendix Operations Manager becomes enjoined, Blue Storm shall at its sole option, either: (i) procure, at no cost to Licensee, the right to continue using Mendix Operations Manager; (ii) modify Mendix Operations Manager to render it non-infringing; or (iii) if, in Blue Storm’ reasonable opinion, neither (i) nor (ii) above are commercially feasible, immediately terminate this Agreement (and Licensee’s rights to use Mendix Operations Manager), and refund to Licensee fees paid for Mendix Operations Manager on a pro rata basis for the remainder of the then-current Subscription Term. The rights and remedies granted to Licensee under this section 8.1 state Blue Storm’ entire liability, and Licensee’s exclusive remedy, with respect to any claim or infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

8.2. Licensee Indemnification. Subject to section 8.3 (Indemnification Procedure) below, Licensee will indemnify, defend and hold Blue Storm and its Affiliates harmless from and against any Claim and shall pay all Losses incurred which arise out of any allegation by a third party against Blue Storm or any of its Affiliates that arises out of or results from (a) a claim alleging that the Licensee Data, or any use thereof, infringes the intellectual property rights or proprietary rights or others, or negatively impacts (protection of) the privacy of individuals, or otherwise has caused harm to a third party, or (b) Licensee’s breach of section 2 (Access) above or violation of any applicable law or regulations.

8.3. Indemnification Procedure. The indemnified Party shall: (i) promptly notify the indemnifying Party in writing of any claim, suit, action, or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any Claim and all negotiations for settlement, provided that the indemnifying Party shall not settle any Claim that imposes a financial obligation or admission of liability or guilt on the indemnified Party without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim, at the indemnifying Party’s cost, however the indemnified Party shall bear all costs of engaging its own counsel.

9 General Provisions​

9.1. Export Compliance. Mendix Operations Manager and other technology and services Blue Storm may make available to Licensee, and all derivatives thereof, may be subject to export laws and regulations of the United States, United Kingdom, European Union and other jurisdictions. Each Party represents that it is not named on any denied-party list. Furthermore, Licensee shall not permit Users to access or use Mendix Operations Manager and other technology and services Blue Storm may make available to Licensee, and all derivatives thereof, in an embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any applicable export law or regulation.

9.2. Anti-Corruption. Licensee agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or anything of value from any of Blue Storm’ employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Licensee learns of any violation of the above restriction, Licensee will use reasonable efforts to promptly notify Blue Storm’ legal and business conduct department at info@bluestorm.io.

9.3. Entire Agreement and Order of Precedence. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understanding, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. The Parties agree that any term or condition stated in Licensee’s purchase order or in any other Licensee order documentation (excluding Order Documents) is void, even if the order is accepted by Blue Storm. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order Document, (3) the applicable service level agreement, and (4) the Documentation.

9.4. Assignment. Either Party may assign this Agreement, and all Order Documents, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Blue Storm may use independent contractors or subcontractors to assist in the delivery of services, provided, however, that Blue Storm shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

9.5. Disputes. The Parties shall attempt in good faith to resolve any claim or dispute concerning the Agreement prior to the commencement of litigation.

9.6. Contracting Blue Storm entity, Governing Law and Jurisdiction. The Blue Storm entity Licensee is contracting with under this Agreement, to whom Licensee should direct notices under this Agreement, the governing law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, without giving effect to any choice of conflict of law provision or rule, and which courts shall have jurisdiction over any such dispute or lawsuit, shall be determined based on where Licensee is domiciled:

If Licensee is domiciled in:	Licensee is contracting with:	Notices should be addressed to:	The governing law is:	The courts having exclusive
A country in the European Union	Whalen Enterprises B.V.	Schaepmanstraat 86A, 3762 SW Soest, The Netherlands	Dutch laws	Utrecht, The Netherlands

9.7. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Licensee will be addressed to the relevant billing contact designated by Licensee. All other notices to Licensee will be addressed to the relevant contact person / administrator designated by Licensee at the address stated at the beginning of this Agreement.

9.8. Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

9.9. Relationship of the Parties. Blue Storm and Licensee are independent contractors, and nothing in this Agreement shall be construed as making them partners, joint venturers, principals, agents or employees of the other, for any purposes whatsoever. No officer, director, employee, agent, affiliate or contractor retained by Blue Storm to perform work on Licensee’s behalf under this Agreement shall be deemed to be an employee, agent or contractor of Licensee. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

9.10. Force Majeure. Except for the obligation to make payments, neither Party shall be in default if failure to perform any obligation hereunder is caused solely by supervening conditions beyond the non-performing Party’s reasonable control, including but not limited to civil commotion, strikes, fire, flood and governmental acts or orders of restriction, internet service provider failure or delay, or denial of service attacks. When a Party’s delay or nonperformance continues for a period of thirty (30) days or more, the other Party may terminate this Agreement, the applicable Order Document without penalty. Any prepaid amounts shall be refunded on a prorated basis.

9.11. Insurance. Blue Storm shall maintain in full force and effect during the term of any Order Document comprehensive insurance with a reputable insurance company to cover its potential liabilities under this Agreement, such as commercial general liability insurance and professional liability insurance (errors and omissions). As evidence of insurance coverage, Blue Storm shall deliver if requested certificates of insurance issued by that insurance company showing such policies in force during the term of this Agreement.

9.12. Modifications to Mendix Operations Manager. Blue Storm may make modifications to Mendix Operations Manager or particular components of Mendix Operations Manager from time to time provided that such modifications do not materially degrade any functionality or features of Mendix Operations Manager.

9.13. Publicity. Licensee hereby grants Blue Storm a non-exclusive license solely during the term of this Agreement to list Licensee’s name and display Licensee’s logo in the customer section of Blue Storm’ website and to use Licensee’s name and logo in Blue Storm’ customer lists but at all times only to the extent that other customers of Blue Storm are also listed on such list. Any other use by Blue Storm of Licensee’s name, logo or trademark requires the prior written consent of Licensee.

9.14. Non-Solicitation of Employees. During the term of this Agreement and for the twelve (12) months thereafter, neither Licensee nor Blue Storm, shall knowingly solicit or hire for employment or as a consultant, any employee or former employee of the other Party who has been actively involved in the subject matter of this Agreement. The foregoing restriction shall not apply to any general recruiting efforts of either Party which are not aimed specifically at the employees of the other Party.

9.15. No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

9.16. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

9.17. Counterparts. Signatures to this Agreement transmitted by facsimile, by electronic mail in ‘portable document format’ (‘.pdf’), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.

10 Questions or Additional Information​

If You have questions regarding these Terms of Use or wish to obtain additional information, please contact us via www.bluestorm.io/about/