End User License Agreement

End User License Agreement (EULA)

of

 

Apliqo AG

Witikonerstrasse 15, CH-8032 Zurich, Switzerland

 

 

Table of Content

1        Definitions

2        Scope

3        Licenses and Grants

4        Payments

5        Audit

6        Warranty and Exclusions

7        Third Party Claims

8        Limitation of Liability

9        Term and Termination

10           General

 

 

 

 

1
Definitions
Whenever used in this EULA 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.
“Agreement”: the license agreement and/or purchase order and these EULA.
“Apliqo”: Apliqo Ltd, Witikonerstrasse 15, CH-8032 Zurich.
“EULA”: this document, the End User License Agreement.
“Licensee”: the Party licensing the Program under this EULA.
“Party”: individually Apliqo or Licensee (in plural jointly Apliqo and Licensee).
“Program” means the Apliqo products listed in the agreement and licensed to Licensee under this EULA. A Program consists of a) machine-readable instructions and data; b) components, files and modules; c) audio-visual content (such as images, text, recordings, or pictures), and/or d) related licensed materials (such as keys and documentation).
“Territory”: worldwide geography, excluding Abu Dhabi, Algeria, Bahrain, Belize, Costa Rica, Dominican Republic, Dubai, El Salvador, Guatemala, Haiti, Honduras, Kuwait, Nicaragua, Oman, Panama, Qatar, Saudi Arabia and Tunisia. Apliqo may change this list on written notice to Licensee.
“Warranty Period”: has the meaning specified in section 6.1.

2
Scope
This EULA stipulates the licensing terms between Apliqo and Licensee for licensing of the Program.

 

3
Licenses and Grants

3.1
The Programs are owned by Apliqo or its licensors, one of their subsidiaries, or a Apliqo supplier, and are copyrighted and licensed, not sold.

3.2
Apliqo will provide Licensee one copy of the Program. Subject to Licensee’s payment to Apliqo of the applicable license fees during the term of this Agreement, Apliqo grants Licensee a non-transferable, non-exclusive, temporary, revocable, worldwide and royalty-bearing right within the Territory to use the Program for Licensee-internal purposes.

3.3
Licensee may not modify the Program, and is not granted a right to further sub-license, rent or lease the Program, in whole or in part. Licensee is further not granted the right to use any part of the Program as stand-alone application, even if a division of the Program is technically possible.

3.4
Apliqo provides subscription and support (“Subscription and Support”) for the Programs to Licensee as specified in the customer agreement, purchase order and/or statement of work. Apliqo will provide 6 months’ notice prior to withdrawing Subscription and Support for a Program.

3.5
Licensee may not reverse assemble, reverse compile, or otherwise translate or reverse engineer the Programs except as expressly permitted by applicable law without the possibility of contractual waiver.

3.6
Apliqo may withdraw a Program, either on a temporary or permanent basis. If the withdrawal is based on an infringement claim, or if Apliqo no longer has the rights for the Program, Licensee will suspend further use of the Program.

 

4          Payments

4.1
License fees are either one-off or royalty-based, one-time or recurring. The license details are stipulated in the customer agreement, purchase order and/or statement of work.

4.2
Unless otherwise agreed, Licensee shall pay invoices within thirty (30) calendar days net from the invoice date.

4.3
Payment dates are expiration dates. Licensee is in payment default upon such expiration date and Apliqo may charge an interest rate of 5% as of such expiration date without further written payment notification.

 

5          Audit

5.1
The Program has an integrated monitoring tool which enables Apliqo to verify whether Licensee has complied and complies with the licensing terms of this Agreement.

5.2
If the Licensee requests Apliqo to disable the monitoring tool, then Licensee shall, for at least thirty (30) months, maintain relevant records to support payments made to Apliqo and to prove Licensee has otherwise complied with the terms of the Agreement. Upon reasonable notice, Licensee will make such records available to Apliqo for verification. Such verification will be conducted in a manner that minimizes disruption to Licensee’s business, may be conducted on Licensee’s premises during normal business hours, and will not occur more than once each year.

5.3
Apliqo may use an auditor to assist with such verification, provided Apliqo has a written confidentiality agreement in place with such auditor.

5.4
Apliqo will notify Licensee in writing if any such verification indicates that Licensee is not in compliance with the terms of the Agreement terms. Licensee agrees to pay to Apliqo the outstanding amount due plus interest from the date payment was originally due. The interest rate is 5%. If Licensee has underpaid Apliqo by more than 5%, Licensee will also reimburse Apliqo for all expenses associated with the audit.

6
Warranty and Exclusions

6.1
During the warranty period of 12 months (“Warranty Period”) Apliqo warrants that the Program, when used in its specified operating environment, will conform to its agreed specification as found in the documentation accompanying the Program (such as a README file). If the Program does not conform to the agreed specifications, Licensee informs Apliqo in writing about such defect. If Apliqo can reproduce a reported defect, then Apliqo will at its own discretion 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.

6.2
In addition, Apliqo offers a helpdesk. It can be contacted weekday from 8am to 5pm (CET). After the Warranty Period this helpdesk service is offered under the support and warranty agreement.

6.3
The warranty applies only to the unmodified portion of the Program. Apliqo does not warrant uninterrupted or error-free operation of the Program or that Apliqo will correct all Program defects. Apliqo is not responsible for the results obtained from the use of the Program. Apliqo does not warrant to Licensee that the Programs will meet the requirements of Licensee.

6.4
If despite repeated efforts by Apliqo a reported defect cannot be corrected (incl. work-around), and if the usability of the Program compared to the agreed specification is severely impaired or impossible, then Licensee shall set two (2) periods of grace to correct the defect, upon which unsuccessful expiry both Parties may terminate (withdraw respectively) from this Agreement. The remuneration received by Apliqo from Licensee shall be reimbursed upon Licensee returning the Program; or, if agreed to by Apliqo, confirm in writing to Apliqo that the Program has been deleted irretrievably from Licensee’s IT systems (incl. back-up).

6.5
The sole remedy Licensee shall be entitled to request in the event of a defect is the correction (for avoidance of doubt also work-around) thereof. Any additional remedies Licensee might be entitled to by applicable law are, to the extent permitted by contractual waiver, explicitly excluded.

6.6
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES 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.
THE WARRANTIES IN THIS SECTION ARE PROVIDED SOLELY BY APLIQO. THE DISCLAIMERS IN THIS SUBSECTION 6.6, HOWEVER, ALSO APPLY TO APLIQO’S SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY APLIQO’S WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.

 

7          Third Party Claims

7.1
Notwithstanding sub-section 6.6, if a third party asserts a claim against Licensee that the Program provided by Apliqo to Licensee under this Agreement infringes the claiming Party’s patent or copyright, Apliqo will indemnify Licensee against that claim at Apliqo’s expense in accordance with sub-section 7.5below up to an amount of CHF 100’000.- (Swiss Francs one hundred thousand) per claim and CHF 500’000.- (Swiss Francs five hundred thousand) in aggregate over the entire agreement term.

7.2
If such a claim is made, or appears likely to be made, Licensee agrees to permit Apliqo, in Apliqo’s discretion, to either 1) modify it, 2) replace it with one that is at least functionally equivalent, or 3) obtain the necessary rights for Licensee to continue to exercise the license granted under this Agreement. If Apliqo determines that none of these alternatives is reasonably available, then on Apliqo’s written request, Licensee agrees to promptly return or destroy the Programs in Licensee’s possession. In such event, Apliqo will reimburse Licensee for any prepaid Program licenses.

7.3
Apliqo will have no obligation regarding any claim based on any of the following: 1) third party code, including Open Source Code; 2) anything provided by Licensee that is incorporated into a Program; 3) Program use other than in accordance with its applicable licenses and restrictions or use of a non-current version or release of a Program, to the extent a claim could have been avoided by using the current release or version; 4) Licensee’s modification of the Program or the combination, operation, or use of the Program with any other Program, product, hardware device, program, data, apparatus, method or process; or 5) distribution or use of the Program outside of the Territory.

7.4
If a third party asserts a claim against Apliqo based on Licensee’s use of the Programs or based on Licensee’s breach of the terms of this Agreement, Licensee will indemnify Apliqo against that claim at Licensee’s expense.

7.5
The indemnified Party shall 1) promptly provide the indemnifying Party with written notice of the claim; 2) allow the indemnifying Party to control, and to cooperate with the indemnified Party in, the defence of the claim and settlement negotiations; and 3) remain in compliance with this Agreement. The indemnified Party may participate in the proceedings at its option and expense.

 

8
Limitation of Liability

8.1
Circumstances may arise where, because of a default by Apliqo in the performance of its obligations under this Agreement or other liability, Licensee may recover damages from Apliqo. Regardless of the basis on which Licensee is entitled to claim damages from Apliqo, and except as expressly required by law without the possibility of contractual waiver, Apliqo’s liability for all claims in the aggregate arising from or related to a Program or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the amount of CHF 100,000 per claim and calendar year, but in maximum the actual payments received by Apliqo  from Licensee for the Program for all claims in aggregate under this Agreement.

8.2
This limit also applies to any of Apliqo’s auxiliary persons. It is the maximum for which Apliqo and its Program developers and suppliers are collectively liable.

8.3
To the extent permitted by applicable law, under no circumstances are Apliqo, its Program developers or suppliers liable for any indirect or consequential damages.

8.4
This limitation of liability shall not apply to damages for bodily injury (including death).

 

9
Term and Termination

9.1
This Agreement and Licensee’s license rights granted under it remain in effect for one (1) year as of the effective date of the customer agreement, purchase order and/or statement of work.

9.2
This Agreement is renewed automatically for another year if it is not terminated by either Party with a three (3) month written notice to the other Party prior its yearly anniversary.

9.3
Additionally, Apliqo may terminate this Agreement immediately on written notice if Licensee materially breaches any Terms of this Agreement, in which case the license granted hereunder is revoked.

9.4
Unless otherwise specified, upon termination or expiration of the Agreement, Licensee must return or destroy all copies of the Programs in Licensee’s possession to Apliqo. Licensee shall confirm unsolicited in writing compliance with this requirement.

9.5
Any terms of this Agreement, which by their nature extend beyond the Agreement termination or expiration, remain in effect until fulfilled.

 

10
General

10.1
Any general terms and conditions of Licensee are explicitly excluded.

10.2
Apliqo shall not be prevented or restricted from working with, or providing services for, other customers, including without limitation, the design, development, manufacture, provision, acquisition and/or marketing of competitive services or products.

10.3
Except as expressly provided in this Agreement, neither Party grants the other Party, whether directly or by implication or otherwise, any patent, copyright, trademark, trade secret, know-how, or other intellectual property right. No Party shall remove or alter any symbols or legends indicating any intellectual property right.

10.4
Each Party will comply with applicable export and import laws and regulations, including those of Switzerland and of the United States that prohibit or limit export for certain uses or to certain end users.

10.5
Written communications, including notices to the receiving Party’s designated representative, are to be sent to the address (physical, e-mail or facsimile) specified in the license agreement or purchase order. The Parties consent to the use of electronic means to send and receive operative and day to day communications in connection with the business relationship arising out of this Agreement. Legal notices under this Agreement shall be in in writing, hand signed and submitted by registered mail

10.6
Any third party suppliers of associated software and software components included in the Program expressly disclaim any and all liability for consequential damages and implied warranties, including, as permitted by law, the implied warranties of non-infringement, satisfactory quality, merchantability and fitness for a particular purpose.

10.7
Apliqo shall not be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to a force majeure event, such as without limitation, acts of God, fire, flood, natural catastrophe, power surges, acts of any government or of any civil or military authority, national emergencies, riots, vandalism, terrorism, war, insurrection, strikes, or any occurrence beyond the reasonable control of such Party.

10.8
Licensee may not assign or transfer the Agreement or Licensee’s rights under it or delegate or subcontract Licensee’s obligations without Apliqo’s prior written approval.

10.9
Unless the Parties mutually agree to exchange confidential information under a separate confidentiality agreement, all information exchanged is non-confidential. However, both Parties agree not to disclose the terms of this Agreement to a third party without the other Party’s prior written consent, except a) to accountants, lawyers or other professional advisors under a confidentiality agreement; or b) as required by law, provided the disclosing Party gets all available confidential treatment to protect such terms.

10.10
Apliqo may reference Licensee as its customer for its own marketing and public relations purposes. Licensee herewith grants Apliqo a non-exclusive, royalty-free, and worldwide right to use Licensee’s trademark for such purposes. This license shall survive the term of this Agreement and is granted until revoked in writing by Licensee. Licensee consents to Apliqo transferring the contact information outside of Switzerland and of the European Economic Area.

10.11
If any provision of this Agreement 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 of the Parties can be preserved. In such cases, both Parties undertake to replace the invalid, illegal or unenforceable provision with another valid, legal and enforceable regulation. The same principle applies to open terms or omissions.

10.12
This Agreement 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.

10.13
Disputes arising under, or in connection with, this Agreement shall be exclusively subject to the jurisdiction of the competent court of the city of Zurich.
 
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