EULA, GraphN AB_Polygonflow
EULA, GraphN AB_Polygonflow
This end user license agreement constitutes a binding legal agreement (the
“Agreement”) between you (“You” or the “Customer”), and GraphN AB, a Swedish
limited liability company with corporate registration number 559250-6090, having its
registered address at Trosta 171, 195 93 Märsta, Sweden (“We”, “Us”, or the
“Company”).
This Agreement shall be deemed executed and binding upon the Parties upon Your
acceptance of this Agreement or installation or use (whichever is earlier) of the
Software, as defined below, (the “Effective Date”) which installation or use shall also
constitute Your approval of this Agreement.
The Company and the Customer are hereinafter individually also referred to as a “Party”
and jointly the “Parties”.
1
rights, registrations, renewals, extensions, combinations, divisions or re-issues
for any of the foregoing property and rights, and similar or analogous rights in
any part of the world.
“Publicly Available Software” means any software that requires as a condition
of use, modification and/or distribution of such software that such software or
other software incorporated into, derived from or distributed with such software
(a) be disclosed or distributed in source code form; (b) be licensed for the
purpose of making derivative works; or (c) be redistributable at no charge.
Publicly Available Software includes, without limitation, software licensed or
distributed under any of the following licenses or distribution models, or licenses
or distribution models similar to any of the following: (i) GNU’s General Public
License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g.,
PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the
Sun Community Source License (SCSL); (vi) the Sun Industry Source License
(SISL); and (vii) the Apache Software license.
“Software” means the commercially available version of the proprietary visual
programming software GraphN©, including the tools library available in
GraphN©.
“User” means any end-user of the Software, regardless of it being an
employee, consultant or other representative of the Customer, or a Customer
that is a Consumer.
2
3 GENERAL RESTRICTIONS APPLICABLE TO THE SOFTWARE
3.1 The Customer undertakes to ensure that it/him/her and any of its authorized
employees, consultants or other representatives who have access to or use the
Software, acknowledge and undertake to abide by any terms of use, terms of
service or other terms or instructions that apply to the Software or its use,
including the terms of this Agreement.
3.2 Unless otherwise agreed in writing between the Parties, the Customer
undertakes to:
a) ensure that only its duly authorized employees, consultants or other
representatives have access to the Software; and
b) comply with all applicable laws and regulations, and obtain and maintain
all necessary regulatory licenses, consents and permissions required for
the use of the Software.
4 OUR UNDERTAKINGS
We shall, unless otherwise agreed to in writing with the Customer:
a) make the Software available to the Customer for installation and use,
(however that We are not responsible for the installation of the Software,
unless otherwise agreed in writing); and
b) be responsible for any act or omission by any of our subcontractors,
agents or representatives.
5.1 This Section will apply to your payment of License fees unless payment
conditions are set out in third party terms and conditions made available by our
reseller(s) or payment service providers in connection with your purchase
(“Reseller Terms”), in which case such Reseller Terms shall prevail. The
Customer shall pay applicable License fees for use of the Software, as
specified in the Agreement, any defined price schedule provided by the
Company or, where applicable, in the Reseller Terms. In case no compensation
is established under the Agreement, separate price schedule or Reseller Terms,
the Customer shall pay Our prices as set forth, from time to time, in Our current
price list, as made available on Our website or in the Software.
5.2 Applicable License fees are payable monthly in advance, commencing as of the
date of the Agreement.
5.3 All Our fees and prices are set forth exclusive of VAT and other taxes, duties
and charges.
5.4 We may change the applicable License fees from time to time. Any such
changes shall be communicated to the Customer with reasonable prior notice.
Adjusted License fees will become effective at the earliest as of the second
calendar month after the adjusted License fee was communicated to the
Customer. To the extent permitted by applicable law, the Customer shall be
deemed to have accepted any adjusted License Fee by continuing to use the
Software after the adjusted License Fee has taken effect. Should the Customer
object to any adjusted License Fee, the Customer shall be entitled to terminate
3
the License hereunder, provided such termination notice is served before the
adjusted License Fee comes into effect.
6.1 We will provide general maintenance for the functionality of the Software
through upgrades and releases that may include rectification of features,
disabling faults or errors in the Software. A disabling fault or error is defined as
a fault or error causing the Software to behave in a way it was not designed to
do. We own the right to define what constitutes a disabling fault or error and to
classify the severity of the fault or error.
6.2 General maintenance is included in the License fee.
6.3 You shall cooperate with Us to enable the maintenance services to be delivered
by Us in the manner agreed and You shall upon request and without delay
provide Us or our partners with any data and documentation that We from time
to time may require in order to provide maintenance, as well as to comply with
Our instructions as provided from time to time and to examine and approve
such Documentation that may be provided by Us.
6.4 Any upgrades or new releases of the Software will be provided to the Customer
at Our discretion, but will however be included in the License fee from time to
time. For the sake of clarity, the Customer may not object to any such upgrades
or releases and undertakes to at all times have the latest available upgrade or
release of the Software installed.
7.1 The Company and its licensors shall retain all right, title and interest in and to
the Software and the Documentation (including all Intellectual Property Rights
therein), as well as in and to all modifications and improvements to any of the
foregoing, regardless of whether the Customer has provided feedback
regarding such modifications or improvements. Furthermore, the Company or
its Affiliates retain all rights to their proprietary education or training content,
and pre-existing materials related to any professional services, processes and
methodology. The Company or its Affiliates reserve all rights not expressly
granted under this Agreement.
7.2 The Customer shall notify the Company as soon as it becomes aware of any
illegal or unauthorized use of the Software or any of the Company’s or its
licensors’ Intellectual Property Rights therein or relating thereto. The Customer
shall assist the Company (at the Company’s expense) in taking any reasonable
steps to defend the Company’s rights therein.
7.3 Any Content specifically pertaining to the Customer or its Users shall remain
the exclusive property of the Customer. The Customer is, as between the
Parties, solely responsible for the Content. The Customer assumes all risks
associated with use of the Content.
8 DATA PROTECTION
8.1 All personal data collected by Us are handled in accordance with our privacy
policy. You acknowledge and agree that You will provide any employees,
consultants or other individuals whose personal data You disclose to Us with
4
the information on our collection and processing of personal data set out in our
privacy policy.
9 WARRANTIES
9.1 You agree that the Software and any information and any services provided by
Us under this Agreement are provided on an “as is” and “as available” basis,
and any warranty not expressly set out in this Agreement is explicitly excluded.
9.2 We represent and warrant that (i) We possess all rights necessary to grant You
the rights set forth herein; and that (ii) the Software will perform substantially in
accordance with the Documentation. We do however not guarantee or warrant
that the Software will perform error-free or be uninterrupted or that We will
correct all errors.
9.3 You shall notify Us of any defect in the Software the latest within 30 days from
when You discovered or ought to have discovered the defect. In connection
with such notification, You shall at your own expense send any necessary
material to Us, or to any third party designated by Us, for the defect to be
examined.
9.4 For any breach of the above warranties, Your exclusive remedy and Our entire
liability shall be limited to one or more of the following, at Our sole choosing and
discretion: (i) correction of the fault or error in cause to enable Your continued
use of the Software, or (ii) terminating this Agreement and the License together
with a crediting of a proportionate amount of any License fee paid,
corresponding to the fault or error.
10 LIMITATION OF LIABILITY
10.1 In no event shall the Company be liable under this Agreement for any indirect,
incidental, consequential, special, punitive, or exemplary damages or for any
loss of revenue, profits or data.
10.2 The Company’s aggregate liability for damages hereunder shall without
prejudice to any other limitations hereunder be limited to a maximum amount
corresponding to the License fee (excluding VAT) paid by the Customer during
the six (6) months immediately preceding the occurrence of the circumstances
giving rise to the claim.
10.3 The above limitations do not apply in case of the Company’s wilful or grossly
negligent breach of the Agreement.
10.4 A Party suffering loss or damages shall take any reasonable measures to limit
such loss or damage.
10.5 In order not to lose its right to pursue a claim, the Customer must present its
claim in writing (including the grounds for and any particulars of the claim) to
the Company within three (3) months of the occurrence of the circumstances
giving rise to the claim.
11 CONFIDENTIALITY
11.1 Each Party agrees that any Confidential Information (as hereinafter defined) of
the other Party (the “Disclosing Party”) will be used by the Party receiving
such information (the “Recipient”) solely for the purpose of the fulfilment of the
5
Agreement and the Recipient hereby undertakes to keep any Confidential
Information in strict confidence and not to disclose such Confidential
Information to any third party unless having obtained prior written approval from
the Disclosing Party.
11.2 The term “Confidential Information” shall mean any and all information and data
of a confidential, non-public, or proprietary nature relating to the Disclosing
Party, or its technology or business, including but not limited to Intellectual
Property Rights, trade secrets, research, technical, development, marketing,
sales, business, and process information. The term Confidential Information
shall include all analyses, compilations and other documents that contain or
otherwise reflect or are generated from Confidential Information.
11.3 Confidential Information shall however not include information that:
c) is or becomes, through no breach of the Recipient’s obligations as stated
in this Agreement, public knowledge;
d) information which was in the possession of the Recipient at the time of
disclosure;
e) is independently developed by the Recipient without reference to or use
of the materials comprising Confidential Information (as evidenced by
written records) after the Effective Date;
f) information acquired from a third party who has the lawful right to make
such disclosure; or
g) is required to be disclosed by applicable stock exchange regulations, law
or in relation to the order or request of a governmental body in
accordance with applicable law, provided that the Disclosing Party is
informed - to the extent possible and allowed - in advance of such
disclosure.
11.4 This Section 11 shall be valid during the term of this Agreement and for a period
of five (5) years thereafter.
12 AUDIT RIGHTS
During the Term (as defined below) and for 12 months thereafter, the Company
may audit (or have a third party audit on its behalf) the Customer’s use of the
Software at 10 days’ prior written notice. The Customer shall cooperate with the
auditor, including by providing access to any books, computers, records or
other information that relate or may relate to the Customer’s use of the
Software. Such audit shall not unreasonably interfere with the Customer’s
business activities. If the Company discovers unauthorized use of the Software,
the Customer shall reimburse the Company for any reasonable costs and
expenses incurred by the Company to perform the audit in addition to such
other rights and remedies as the Company may have hereunder.
6
13.2 We may terminate this Agreement with immediate effect upon written notice,
should You (i) attempt to, directly or indirectly, assign or transfer any of the
rights granted to, or obligations imposed on, You under this Agreement to any
third party without Our prior written authorization, (ii) use the Software in any
way or manner other than as explicitly authorized herein, or (iii) is otherwise in
breach of any of Your obligations to protect the Intellectual Property Rights
contained in the Software.
13.3 If the Customer is in delay or in breach of any applicable payment terms, We
are entitled to immediately terminate this Agreement, any License and any
Users’ access to and right of use to the Software.
13.4 Upon termination of this Agreement, Your right to access or use the Software
immediately terminates and You shall hereupon permanently return to Us (or, to
the extent such return is not technically possible, destroy) all copies of the
Documentation and any other material provided by Us and relating to the
Software, however excluding any and all Content.
13.5 If You are Consumer, You understand and agree that by downloading any
Software, You are accepting this Agreement, and You agree and concede to
waiving Your statutory withdrawal rights (Sw. ångerrätt).
13.6 Sections 10 (Limitation of liability), 11 (Confidentiality), and 16 (Governing law
and disputes) and any obligations which expressly or by implication are
intended to come into or continue in force on or after the termination of this
Agreement, will survive such termination.
14 FORCE MAJEURE
Performance by the Company of its obligations under this Agreement shall be excused
for a period that is reasonable under the circumstances if failure or delay
thereof is caused by any unforeseeable events or circumstances beyond the
Company’s control and which could not have been reasonably foreseen or
reasonably circumvented after occurrence, such as changes in laws and
regulations or in the interpretation thereof, acts of authorities, war, acts of war,
terrorism, labour disputes, blockades, pandemics, major accidents or currency
restrictions.
15 MISCELLANEOUS
15.1 The Company may notify You by email, postal mail or postings within the
Software.
15.2 The Company may engage subcontractors to perform any undertakings,
services or actions under the Agreement. The Company shall be liable as for
itself for any acts or omissions of any subcontractor engaged by it and shall be
fully responsible for management of such subcontractors.
15.3 This Agreement constitutes the entire understanding and agreement by and
between the Parties with respect to the subject matter hereof and supersedes
any advertisements or public communications or previous understandings or
agreements between the Parties, whether written or oral, regarding the same.
15.4 The provisions of the Agreement are severable. Should any provision of the
Agreement be determined to be invalid or unenforceable under any controlling
7
body of the law, such invalidity or unenforceability shall not in any way affect the
validity or enforceability of the remaining provisions of the Agreement, provided
that the essential purpose of the Agreement is not frustrated.
15.5 The failure of either Party to assert a right under the Agreement or to insist
upon compliance with any term or condition of the Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other Party.
15.6 Neither the Agreement nor any of the rights and obligations arising hereunder
may be assigned or transferred by the Customer to any third party (including,
without limitation, by operation of law). The Company may assign rights or
obligations hereunder, in part or in whole, to any third party by providing written
notice hereof to the Customer.