End User Licence Agreement

End User License Agreement (EULA) of Apliqo AG
Witikonerstrasse 15, CH-8032 Zurich, Switzerland

Table of Contents

1           Definitions


Whenever used in this EUA with an initial capital letter, the terms quoted and defined in this section 1, whether used in singular or the plural, shall have the meanings specified below.
“Aggregated Content”: shall have the meaning set forth in section 3.6 c).
“Agreement”: the offer, service agreement and/or purchase order between (1)(i) Apliqo if/as direct licensor / SaaS provider or (ii) Business Partner if/as sub-licensor, and (2) End User; including this EUA.
“Apliqo”: means Apliqo Ltd, Witikonerstrasse 15, CH-8032 Zurich.
“Authorized User” means any natural person acting on behalf of the End User or acting to perform the End User’s obligations under this EUA and who, as named user, has been granted access to the Software and/or the SaaS for such purpose.
“Business Partner”: means Apliqo’s redistributor and contracting party to the End User, granting End User (sub-) licensing right for Software and/or (pass-through) access and use rights for SaaS.
“Combined Content”: shall have the meaning set forth in section 3.6 c).
“Content”: shall have the meaning set forth in section 3.5.
“End User”: means the party procuring a (sub-) license for the Software and/or (pass-through) access and use rights for SaaS from Apliqo or from Business Partner.
“EUA”: means this document, comprising the terms for licensing the Software as well as for accessing and using SaaS.
“Feedback”: shall have the meaning set forth in section 6.1.
“SaaS”: means the software as a service (cloud service) owned and provided by Apliqo and/or its licensors, and provided under this EUA by Apliqo (i) to Business Partner (if Business Partner itself is End User under the Multi-Solution Agreement), (ii) directly to the End User (if no Business Partner is involved); or (iii) to Business Partner on behalf of Business Partner’s End User as pass-through service.
“Software”: means the software owned by Apliqo and/or its licensors, and licensed under this EUA by Apliqo (i) to Business Partner (if Business Partner itself is an End User under the Multi-Solution Agreement), or (ii) to Business Partner for redistribution to its End User as sub-license or as part of the Business Partner’s own cloud services.
“Warranty Period”: shall have the meaning set forth in section 8.1.


2           Scope


2.1          This EUA stipulates the terms either
a)    between Apliqo and End User for being granted
–     a direct license to the Software; or
–     a direct access and use right for the SaaS; or
b)    between Business Partner and End User for being granted:
–     a (sub-) license right for the Software installed on premises on End User’s servers;
–     an access and use right to the Software installed on Business Partner’s servers and granted by Business Partner remotely to the End User as its own cloud service offerings; or
–     a (pass-through) access and use right to Business Partner’s End User as SaaS on Apliqo’s servers on behalf of Business Partner, in which case Apliqo shall have third party beneficiary rights against the Business Partner’s End User as stipulated in this EUA.


3           Ownership and Rights Granted


3.1          The Software and SaaS, and any underlying platform and/or intellectual property pertaining thereto, are owned by Apliqo or its licensors, one of their subsidiaries, or an Apliqo supplier. They are copyrighted and provided as license and/or access and use right, but not sold.
3.2          All rights under this EUA granted to End User for the agreed term are non-exclusive, non-transferable, revocable, limited, fee-based, and for End User’s internal purposes only.
3.3          End User may not modify the Software or SaaS, and is not granted a right to further grant licensing and/or access and use rights, or to rent or lease or otherwise provide the Software and SaaS to third parties, in whole or in part.
3.4          Licensing of the Software as well as access to, and use of, the SaaS may be suspended or withdrawn, either on a temporary or permanent basis. If based on an infringement claim, or if Business Partner or Apliqo allegedly no longer have the rights for granting the rights stipulated in this EUA, then (i) Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) Business Partner if/as sub-licensor, or (iii) Apliqo as third party beneficiary of such right under this EUA as the case may be, may suspend further licensing of the Software and/or access to and use of the SaaS. Suspension may also occur if End User is in payment default.
3.5          Information, such as administrative, market, technical and/or financial data (e.g. master data, indicators, net asset value, con-/distributions, costs, gains/losses, interest, capital, ownership, region, sector, etc.), and any intellectual property pertaining thereto, (“Content”), which is ingested by End User (or its Authorized User, as the case may be) into the Software and/or SaaS, are owned by End User or its licensors.
3.6          End User grants (i) Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) Business Partner if/as sub-licensor, and (iii) Apliqo as third party beneficiary of such right under this EUA as the case may be,
a)  a non-exclusive, worldwide, royalty-free license, and sub-licensable right during the subscription term of the Agreement to host, use, copy, process, transmit, store, archive, disclose, display, distribute, and create derivate works of such Content for the fulfilment of the Agreement;
b)  a non-exclusive, transferable, perpetual, irrevocable, unlimited, worldwide, royalty-free right after the subscription term to retain archival copies of the Content to the extent necessary to comply with mandatory applicable law;
c)   a
(i)     non-exclusive, worldwide, royalty-free license, and sub-licensable right during; and
(ii)    non-exclusive, transferable, perpetual, irrevocable, unlimited, worldwide, royalty-free license, and sub-licensable right after the subscription term;
to host, use, copy, process, transmit, store, archive, disclose, display, distribute, and create derivate works of such Content, in whole or in parts, in pseudonymized and aggregated form (“Aggregated Content”), provided such Aggregated Content consists of at least three (3) datasets. End User hereby agrees that Apliqo may combine Aggregated Content with other own and third party data and information (“Combined Content”), and may fully exploit such Aggregated Content and/or Combined Content for its business purposes in the course of its business.


4           User Accounts

4.1          The End User
a)    shall be responsible for protecting user accounts established under this EUA, including by (i) providing access to, and use of, the Software and SaaS only to Authorized Users; (ii) requiring Authorized Users to keep account login information, including user names and passwords, strictly confidential, and not to provide such account login information to any third party; (iii) using industry standard security measures to protect the user accounts (including, without limitation, using multi-factor authentication to access, and use of, the Software and SaaS).
b)    shall be responsible for any interaction with the Software and SaaS occurring on its accounts.
c)    shall inform each Authorized User of his/her obligations under, and ensure that each Authorized User at all times abides by, the terms of this EUA.
d)    shall be and remain responsible and liable for any breach by an Authorized User.
e)    shall immediately de-activate an account or change the account’s login information in the event that the End User or any Authorized User becomes aware that the security of any account login information has been compromised, or upon Apliqo’s if/as direct licensor of the Software or provider of the SaaS, upon Business Partner’s if/as sub-licensor, or Apliqo’s as third party beneficiary of such right under this EUA as the case may be, reasonable request.
f)     shall terminate access to, and cease use of, the Software and SaaS upon expiration or termination of the Agreement.
4.2          The SaaS has an integrated monitoring tool, which enables Apliqo either as direct licensor of the Software or provider of the SaaS, or as third party beneficiary to this EUA as the case may be, to verify End User’s interactions. This monitoring tool creates a time stamp of the End User’s or the Authorized Users’ login/logout.
4.3          If the End User disables or requests Apliqo or Business Partner to disable the monitoring tool of the Software, then the End User shall, for at least thirty (30) months, maintain relevant records to support payments made and to prove the End User has otherwise complied with the terms of this EUA (e.g. amount of Authorized Users or End User usage data). Upon reasonable notice, the End User will make such records available (i) to Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) to Business Partner if/as sub-licensor, (iii) to Apliqo as third party beneficiary of such right under this EUA as the case may be, or to their third party auditor for verification and compliance purposes. Such verification will be conducted in a manner that reduces disruption to the End User’s business, may be conducted on the End User’s premises during normal business hours, and will not occur more than once per calendar year. In case of any discrepancy with the license / SaaS terms End User shall bear the costs of the audit.


5           Usage Data

5.1          (i) Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) Business Partner if/as sub-licensor, or (iii) Apliqo as third party beneficiary of such right under this EUA as the case may be, may collect, log, store, archive, or use in any other way, directly or indirectly (i.e. mix among each other), metrics, analytics, statistics, or other meta data related to the End User‘s interaction with the Software and SaaS:
a)    for fulfilment of the EUA;
b)    for security purposes; and
c)    for statistical use as well as to analyse, maintain, and improve the Software and SaaS.
5.2          Use of the Software and SaaS is subject to the limitations and limits identified in this EUA. If (i) Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) Business Partner if/as sub-licensor, or (iii) Apliqo as third party beneficiary of such right under this EUA as the case may be, detects or becomes aware that End User exceeds a limitation or limit, End User shall cooperate pro-actively with Apliqo and/or Business Partner to promptly resolve the excess usage, e.g. technically or contractually.
6           Feedback
6.1          The End User may provide to (i) Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) to Business Partner as sub-licensor, or (iii) to Apliqo as third party beneficiary of such right under this EUA as the case may be, and they may solicit from End User, input regarding the Software and SaaS, including, without limitation, comments, suggestions and/or recommendations regarding the possible creation, modification, correction, improvement or enhancement of the Software and SaaS, or it may collect input using tracking technologies, such as cookies and web beacons to the extent allowed under this Agreement (collectively “Feedback”). The End User hereby grants (i) to  Apliqo if/as direct licensor of the Software or provider of the SaaS, (ii) to Business Partner is sub-licensor, or (iii) to Apliqo as third party beneficiary of such right under this EUA as the case may be, a non-exclusive, transferable, perpetual, irrevocable, unlimited, worldwide, royalty-free right to host, use, copy, process, incorporate, publish, transmit, store, archive, disclose, and create derivate works of such Feedback for any purpose at its discretion; and to enable product features, administer use, personalize experience, and otherwise support or improve use of the Software and SaaS. Such license shall include the right to grant sub-licenses to any third party; the sub-licensee being granted the right to do any and all of the foregoing.


7           Disclaimer and Restrictions

7.1          The End User acknowledges and agrees that all
a)    Content which the End User ingests, transmits, stores, integrates, imports, displays, distributes and/or uses in any other way via the Software and SaaS, or otherwise makes available through use of the Software and SaaS; and
b)    the results obtained from the Software and/or SaaS are dependent upon the Content entered and that the conclusions drawn from the use of the Software and SaaS, or any results and conclusions drawn therefrom;
are done at the End User’s own risk. The End User will be solely liable and responsible for any damage or losses occurring therefrom.
7.2          The End User represents and warrants that it will not (and will not allow any Authorized User or third party to):
a)    gain or attempt to gain unauthorized access to, and use of, the Software and SaaS, or any infrastructure or any element thereof necessary for the provision of the Software and SaaS, or circumvent or otherwise interfere with any authentication or security measures of the Software and SaaS;
b)    interfere with or disrupt the integrity or performance of the Software and SaaS;
c)    transmit Content containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Software and SaaS;
d)    decompile, disassemble, reverser assemble, scan, reverse engineer, attempt to discover any source code or underlying ideas or algorithms of, or otherwise translate any Software and SaaS and/or other technology for accessing and using the Software and SaaS;
e)    provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow Authorized Users or others to access or use the Software and SaaS for the benefit of any third party;
f)     list or otherwise display or copy any code of the Software and SaaS, except for data, technology, and materials provided or made available to it to the extent necessary for licensing the Software, and access to, and use of, the SaaS;
g)    copy the Software and SaaS (or any component thereof), or develop any improvement, modification, or derivative work thereof, except for data, technology, and materials provided or made available to it to the extent necessary for the licensing of the Software, and access to, and use of, the SaaS;
h)    include entirely or any portion of the Software and SaaS in any other service and/or equipment;
i)     perform benchmark tests on the Software and SaaS;
j)     access and use any third party components provided by Apliqo in the Software and SaaS separately from the Software and SaaS, unless this occurs independently of the use of the Software and the SaaS (e.g. because the component is provided directly to the End User by the third-party provider);
k)    use, evaluate, or view the Software and SaaS for the purpose of designing, modifying, or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Software and SaaS; and/or
l)     use the Software and SaaS for any unauthorized, improper or illegal purposes, including but not limited to (i) discrimination, (ii) harassment, (iii) compromising information security and data security or confidentiality, (iv) harmful or fraudulent activities, (v) violation of the EUA or applicable law.
7.3          End User shall address any rights or claims regarding the Software and SaaS directly to Apliqo only if Apliqo is the direct licensor of the Software or provider of the SaaS (cf. section 2.1a). In all other cases End User shall address any rights and claims to Business Partner.
7.4          To the extent permitted by law, Apliqo and its licensors shall not be liable to End User (and, for the avoidance of doubt, the Authorized User) for the Software and SaaS, or for any damage occurring under the Agreement, which is herewith excluded, and any claims related thereto; especially, but not limited to, representations and warranty of any kind whether express or implied (e.g. quality of administrative, market, technical and/or financial data from third party suppliers provided to, or used by, End User via Software and/or SaaS), indirect damage, loss of Content or other data/information, damages, service levels, reputation, and/or non-infringement. End User shall address/file all claims to/against Business Partner. Unless Apliqo is the sole direct licensor of the Software or provider of the SaaS, without any Business Partner involvement, in no event shall the End User have any claims against Apliqo and/or its licensors. The collective liabilities of Apliqo and its third party suppliers are subject to the limitation of liability agreed herein.
7.5          If a third party asserts a claim against Apliqo or its licensors based on (i) End User’s non-contractual use of the Software and SaaS, or (ii) End User’s marketing or distribution; (iii) End User’s breach or alleged breach of the terms of this EUA; (iv) allegations that use of the End User’s Content infringes any copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (v) End User’s failure to obtain consents and permissions from data subjects for the submission and processing of personal data in Software and SaaS; (vi) instructions by End User or its Authorized Users for processing data other than as specifically allowed in this EUA; or (vii) any acts or omissions of End User; then End User shall defend, indemnify and hold Apliqo and/or its licensors (as third party beneficiaries to this EUA) harmless from and against that claim and pay all amounts finally awarded by a court against Apliqo and/or its licensors (as third party beneficiaries), or included in any settlement approved by Apliqo.


8           Warranty

8.1          Any representations and warranties agreed between Business Partner and End User in the Agreement are provided solely by Business Partner, not by Apliqo and/or its licensors and/or other subcontractors.  
8.2          The Software, when used in its specified operating environment, will conform to its agreed specification stipulated in the documentation accompanying the Software (such as a README file), (“Warranty Period”).
8.3          If the Software does not conform to the agreed specifications, the End User shall inform Apliqo as direct licensor of the Software or Business Partner in all other cases in writing (e.g. e-mail) about such defect. If the reported defect can be reproduced, then (each as applicable) Apliqo or Business Partner after consulting with Apliqo will use commercially reasonable efforts to correct the defect or to provide a work-around within due time. The Warranty Period does not recommence after correction or work-around of a defect.
8.4          The warranty applies only to the unmodified portion of the Software. Uninterrupted or error-free operation of the Software is not warranted, nor that all defects will be corrected in the Software. There is no representation or warranty that the Software will meet the End User’s requirements; the End User is solely responsible for the results obtained from the use of the Software.
8.5          If despite repeated remedy efforts a reported defect cannot be corrected (incl. work-around), and if the usability of the Software installed on premise at End Customer compared to the agreed specification is severely impaired or impossible, then the End User shall set two (2) reasonable periods of grace of at least thirty (30) days for correcting the defect, upon which unsuccessful expiry Business Partner if/as sub-licensor, Apliqo as third party beneficiary of such right under this EUA as the case may be, or the End User may terminate (withdraw respectively) from this EUA. The license fee for the Software shall be reimbursed pro rata temporis (i) by Apliqo as direct licensor of the Software, or (ii) by Business Partner upon (a) the End User returning the Software; or (b), if agreed by Apliqo as third party beneficiary of such right under this EUA as the case may be, upon confirmation in writing to Apliqo that the Software has been deleted irretrievably from the End User’s IT systems (incl. back-up).
8.6          The sole remedy the End User shall be entitled to request in the event of a defect of the Software is the correction (for avoidance of doubt also work-around) thereof. Any additional remedies the End User might be entitled to by applicable law are, to the extent permitted by contractual waiver, explicitly excluded. This does not affect the right of the End User to claim reimbursement pro rata temporis, damage, indemnification or to terminate the Agreement in the cases provided for under this Agreement.
8.7          These warranties are the End User’s exclusive rights and replace all other warranties or conditions, express or implied, including, but not limited to, any implied warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, and any warranty or condition of non-infringement of intellectual property rights.       
8.8          Unless Apliqo is the sole direct licensor of the Software, without any Business Partner involvement, the warranties in this section are provided solely by Business Partner. The disclaimers in this subsection, however, also apply to Apliqo.
8.9          In no event shall the End User have any claim of representation and warranty against Apliqo’s licensors and/or any other subcontractors. End User shall not contact Apliqo’s licensors directly (e.g. support or assistance). This paragraph does not nullify the Business Partner’s warranty obligations under this EUA or its own warranty terms.


9           Data Protection

9.1          Where Apliqo is the direct licensor of the Software and provider of the SaaS, Apliqo shall be the controller of End User’s and/or Authorized Users’ personal data. Apliqo’s privacy policy applies (cf. Appendix 4a).
9.2          In all other cases, End User acknowledges and agrees that Business Partner will provide personal data of End User and/or its Authorised Users and other individuals, as the case may be, to Apliqo for fulfilment of the Agreement as well as the agreement between Business Partner and Apliqo, and that in any case Business Partner remains controller of such personal data, and Apliqo is the processor thereof. Business Partner and Apliqo have concluded a data processing agreement (cf. Appendix 4b).


10       Term and Termination

10.1      This EUA applies as long as and to the extent End User is granted (i) license rights for the Software, or (ii) access and use rights for the SaaS pursuant to the subscription term, stipulated in the Agreement. No rights are granted without this EUA.
10.2      In addition to the rights (i) of Apliqo if/as direct licensor of the Software or provider of the SaaS, or (ii) of Business Partner if/as sub-licensor under its Agreement, Apliqo as third party beneficiary under this EUA as the case may be is herewith granted the right to withdraw the license rights for the Software as well as access and use rights for the SaaS, if End User (or for the avoidance of doubt its Authorised Users) materially breaches the terms of this EUA.
10.3      Upon termination or expiration of the Agreement, End User must delete all copies of the Software and/or SaaS, if any, in its possession and confirm such deletion upon request by (i) Apliqo if/as direct licensor of the Software and provider of the SaaS, (ii) Business Partner if/as sub-licensor, or (iii) Apliqo as third party beneficiary of such right under this EUA as the case may be.
10.4      The End User acknowledges and agrees that Apliqo (or its licensors) is (are) not responsible for backing-up or archiving of any Content, and that upon either suspension and/or termination of this EUA access to its Content ingested into the Software or SaaS  as well as any results obtained or drawn therefrom will no longer be accessible. Upon request and subject to reasonable service fees, Apliqo as direct licensor of the Software or provider of the SaaS will support the End User directly with retrieving the Content and results from Apliqo’s servers.
10.5      If any Content could be subject to governmental regulation or may require security measures beyond any agreed, End User shall not input, provide or allow access to Content. As required by law, Apliqo or its licensors may agree to enter into additional agreements with the End User, subject to them agreeing to appropriate additional security and other measures as well as limitations and exclusions of liability. The End User shall promptly provide to Apliqo any additional agreements required from End User.
10.6      Any terms of this EUA, which by their nature extend beyond the termination or expiration of the Agreement, remain in effect until fulfilled.

11       Regulations


11.1      End User will comply with all applicable laws and regulations, including export and import laws and regulations, e.g. those of Switzerland and of the United States, that prohibit or limit export for certain Software and SaaS, or to certain end users.
11.2      End User shall not use any Software and SaaS outside the territory for which it is granted a valid license or access, and End User agrees not to use anyone else to do so. If End User exports or imports the Software and SaaS, content under this EUA, or related technical data, it – and not Apliqo (or its licensors, as the case may be) – will act as the exporter or importer (except as required by data protection laws for any personal data), and will comply with all clearance requirements, obtain any required export and import licenses, and make all proper filings.
11.3      Apliqo as direct licensor of the Software and provider of the SaaS, but also as third party beneficiary under this EUA as the case may be, (i) may prohibit End User from using the Software and SaaS in order to ensure that Apliqo (and its licensors) comply with applicable export and import laws; and (ii) may terminate this EUA immediately in case of a breach of this section or when Apliqo reasonably believes such a breach has occurred or is likely to occur. In such cases, subscription fees shall be reimbursed pro rata temporis.


12       General

12.1      Any general terms and conditions of End User are explicitly excluded, even if referenced or linked in End User’s purchase order (or similar confirmation).
12.2      Except as expressly provided in this EUA, End User is not granted any licensing or access and use rights beyond the Software and SaaS, or any patent, copyright, trademark, trade secret, know-how, or other intellectual property right related to the Software and SaaS and/or any intellectual property pertaining thereto. End User shall not remove or alter any symbols or legends indicating any intellectual property right of the SaaS.
12.3      For software and software components included in / provided with the Software and SaaS, Apliqo’s licensors expressly disclaim any and all liability for consequential damage and other indirect damages as well as implied warranties, including, as permitted by law, the implied warranties of non-infringement, satisfactory quality, merchantability and fitness for a particular purpose.
12.4      End User may not, in whole or in part, assign or transfer this EUA or End User’s rights under it or delegate or subcontract End User’s rights or obligations without Apliqo’s prior written approval.
12.5      The Software and SaaS are confidential.
12.6      Apliqo if/as direct licensor of the Software or provider of the SaaS, or as third party beneficiary under this EUA as the case may be, may reference End User as its (sub-) licensee of the Software and/or end customer of the SaaS for its own marketing and public relations purposes.
12.7      If any provision of this EUA is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired as long as the intent can be preserved. In such cases, it shall be replaced with another valid, legal and enforceable regulation. The same principle applies to open terms or omissions.
12.8      This EUA is governed by Swiss law, without regard to the conflict of laws provisions. The United Nations’ Convention on International Sales of Goods of 11 April 1980 (SR 0.221.211.1) does not apply.
12.9       Disputes arising under, or in connection with, this EUA shall be exclusively subject to the jurisdiction of the competent court of the city of Zurich, Switzerland.

Book a demo today
to learn how Apliqo can drive
FP&A in your business.

Organise your demo today

Learn how Apliqo can help you and your business