TERMS AND CONDITIONS FOR USE OF LICENSED APPLICATION (“EULA”)
1. Purpose and Object of the EULA
By accepting this EULA, the End-user hereby agrees to accept the terms and conditions for use of the iPAD application of Supplier’s interactive software tools for CAD industry (hereinafter referred to as ”Licensed Application”).
Based on this EULA Supplier shall supply End-user with the Licensed Application and offer certain service as will be specified later in this EULA.
The Parties acknowledge that this EULA is concluded between the Supplier and the End-user only, and not with Apple Inc (“Apple), and that the Parties, not Apple, are solely responsible for the application licensed under this EULA and the content thereof.
2. Delivery and Acceptance of Licensed Application
It is noted here that Licensed Application consists of downloadable user interface (hereinafter referred to as “User software”) and a certain background software operating in Supplier’s server (hereinafter referred to as “Background software”) and to be used by the End-user via internet together with the User software.
Prior using of the User software the End-user must accept this EULA. Actual delivery of the User software is organised so the End-user may on its own initiative download the User software into its computer.
To deliver the Background software to End-user, Supplier has set up a service on a host server. End-user will get access to the server by using the user ID and password delivered to it together with User software
The Licensed Application is deemed to be accepted by End-user in case End-user uses the system in any other way than for testing purposes.
3. Scope of End-user license
The non-exclusive and non-transferable license granted to the End-user under this EULA entitle End-user use Licensed Application personally and in its own business but not to resell or sublicense the software further. License to use Licensed Application is also limited to use only on any iPad touch that the End-user owns or controls as permitted by the Usage Rules set forth in the App Store Terms of Service.
4. Prices and payment
The Licensed Application is delivered free of charge.
5. Supplier’s Maintenance and Support Services
To maintain the Background software, Supplier shall make improvements to the system which improvements will be automatically updated for use by End-user free of charge. Supplier may at its web page inform End-user beforehand of such most important changes to the Background software which have a major visible impact on the operation of the system from the user’s point of view. Possible new features offered by Supplier concerning the Licensed Application shall, however, always be subject to a separate agreement with End-user.
In case updates in Background software at the same time require updates to be made also in User software the Supplier will organize such updates to be downloaded by the End-user.
It is explicitly acknowledged by the Supplier and the End-user that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
6. Warranty and Product claims
The Supplier admits no other warranty to the Licensed Application as explicitly agreed in this EULA or permitted by applicable law. The Supplier is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed.
In the event of any failure of the Licensed Application to conform to any applicable warranty, the End-user may notify Apple, and Apple will refund the purchase price for the Licensed Application to that End-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Suppliers sole responsibility.
The Supplier and the End-user acknowledge that the Supplier, not Apple, is responsible for addressing any claims of the End-user or any third party relating to the Licensed Application or the End-user’s possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Any End-user questions, complaints or claims with respect to the Licensed Application should be directed to Supplier’s address, e-mail or telephone mentioned in clause 1 of this EULA.
7. Liabilities related to Licensed Application
Taking into account that End-user is using Licensed Application via internet Supplier cannot guarantee that the application will operate uninterruptedly in all circumstances. End-user shall always be responsible for the functioning and data security of its own internet connections. Furthermore End-user is responsible that any information provided by End-user for the Licensed Application, does not infringe any intellectual property rights of a third party.
Neither Party shall be liable to the other Party for any indirect damage, such as lost revenues, lost property or other consequential financial losses caused to the other Party in any activities covered by this EULA. It is also explicitly agreed by the Parties that Supplier shall not have any responsibility in case End-user’s material stored in Supplies server are lost.
8. Intellectual Property Rights related to Licensed Application
Any and all immaterial rights, such as ownership of the copyright in all software and other rights in and to the Licensed Application belong solely to the Supplier. Apart from the user license determined in this EULA, no other rights to any software have been transferred to End-user.
The Supplier and the End-User acknowledge that, in the event of any third party claim that the Licensed Application or the End-user’s possession and use of that Licensed Application infringes that third party’s intellectual property rights, the Supplier or the End-user, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9. Force majeure
TSupplier shall not be responsible for any damage or inconvenience arising from a force majeure that is beyond the scope of influence of Supplier or was caused by a corresponding reason and that Supplier cannot reasonably be expected to have been able to take into consideration at the time of signing of this EULA and the consequences of which could not reasonably have been avoided or prevented.
A force majeure shall denote e.g. the following issues if they prevent the fulfilment of the obligations laid down hereunder or make their fulfilment unreasonably difficult: strike or other labour disputes, other unforeseeable events affecting labour, fire, war, mobilisation, mutiny, seizure, foreign exchange limitations, blackout and a disturbance or failure in internet or information network communications.
10. Validity of the EULA
The license based on this EULA is effective until terminated by either Party. End-user’s rights under this EULA will terminate automatically without notice if End-user fails to comply with any term(s) of this EULA. Upon termination of the EULA, End-user shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
11. Legal Compliance
The End-user represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
12. Third Party Beneficiary
The Supplier and the End-user acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the End-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.
13. Applicable laws
The laws of the State of California, excluding its conflicts of law rules, govern this EULA and End-user’s use of the Licensed Application. End-users use of the Licensed Application may also be subject to other local, state, national, or international law.
14. Acceptance of the EULA
The Parties acknowledge and agree that this EULA is legally and fully accepted by both Parties at the latest when the End-user has started to use the Licensed Application.