Last updated: July 3, 2019
The terms and conditions set forth in these VisionAppster Software License Terms ("Terms") shall be applied to any and all deliveries of VisionAppster Builder ("Builder") and Engine ("Engine") software applications or update versions (together "Software") executed between you ("Licensee") and VisionAppster, a company organized under the laws of Finland and registered in trade register of Finland, business identity code 2517706-4, having its offices at Salvesenintie 6, 40420 Jyskä, Finland ("Licensor"). If Licensee accepts or agrees to these Terms on behalf of a company, organization or other legal entity (a "Legal Entity"), Licensee represents and warrants that he/she has the authority to bind that Legal Entity to these Terms and, in such event, "Licensee" will refer and apply to that company or other legal entity. Additionally, what has been set forth in the Licensor's website about the licensing entity, shall apply.
The Software is a proprietary product of Licensor and it is protected by copyright laws and international treaties. The limited license rights defined in these Terms are granted by Licensor. The license is granted for the Licensee mainly for the Licensee's purposes as defined in the documentation, meaning technical and other specifications relating to the operation or functionality of the Software as defined by the Licensor ("Documentation").
By installing and using the Software the Licensee indicates that the Licensee accepts, understands and agrees to be bound by the terms and conditions of these Terms. If Licensee does not agree to all the terms and conditions contained herein, it must return the Software and all possible copies thereof to the Licensor.
2 PURPOSE AND SCOPE
Licensee acquires a license and Licensor grants a license to the Software applications in accordance with the terms and conditions set forth in these Terms. The Software applications are standard software products of Licensor. Any provision of services or right to use additional services such as VisionAppster Cloud shall be subject to separate agreement.
3 GRANT OF LICENSE AND LIMITATIONS THEREOF
Upon terms and limitations hereof Licensor grants to Licensee during the validity of the license, as granted by the Licensor, a limited, non-exclusive, non-transferable right to
(i) install and use the Builder on an unlimited number of computers provided that these computers are either all (a) physically located at Licensee's single physical location ("Site"), or (b) Licensee's laptops which have been made available by Licensee to its employees at the same Site, provided all such laptops have appropriately licensed the Builder installed. Any Builder may only be used at particular Site or on computers assigned to Licensee's employees employed at the same Site and may only be moved to another Site subject to prior written approval from Licensor;
(ii) use the Builder solely for purpose of creating User Content, as defined in Clause 5;
(iii) use the Software to execute only the User Content, Components purchased from VisionAppster Store and/or user interface applications that are made with third-party software together with compatible devices. For the avoidance of doubt this clause allows the Licensee to use the Engine as a part of its products and services sold to third-party.;
(iv) use Documentation for its internal, non-commercial purposes.
Licensee shall not:
(i) Use Software otherwise or for other purposes than expressly granted in these Terms or transfer the Software to any other computer or platform without Licensor's consent, nor assign or transfer any of its rights and obligations to the Software or the Documentation arising from these Terms to any third party without the prior written consent of Licensor;
(ii) Distribute, rent, lease, loan, sublicense or resell the Builder or accompanying Documentation or any part thereof nor the license or any copy of it. For avoidance of doubt, any distribution of Builder or accompanying Documentation or any part thereof is subject to separate license agreement between the Licensee and Licensor. For the avoidance of doubt, t 1he prohibition in this clause does not apply to the use of the Engine.;
(iii) Copy, in whole or in part, any Software in machine readable form except where such copies are made solely for the purpose of back-up; or archiving, provided, however, that in no event shall Licensee cause or permit more than two (2) copies of the Software to be in existence at any time without the prior written consent of Licensor. Any Documentation provided by Licensor shall not be reproduced without express written consent of Licensor;
(iv) Reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Software, or the Software's structural framework;
(v) Modify, enhance or in any other manner change the Software or create derivative works based on the Software or the Documentation without the prior written consent of Licensor. Licensee acknowledges and agrees that any and all modifications, enhancements and/or any and all other changes to Software developed by the Licensee with or without advice and/or support of Licensor or by Licensor to Licensee shall be derivative works of Software and therefore shall be the sole and exclusive property of Licensor. Licensee acknowledges and agrees that the modified, enhanced or changed versions of the Software do not constitute software different or independent of the Software, and therefore, such modified, enhanced or changed versions of the Software are governed by the terms and conditions of these Terms; or
(vi) Remove, obliterate or otherwise alter Licensor's or third parties' proprietary rights notices.
4 INTELLECTUAL PROPERTY RIGHTS
Licensor or its suppliers retain all rights not expressly granted in these Terms, including without limitation the title and interest to and in the Software and modifications, amendments, enhancements or upgrades thereof and the Documentation and all intellectual and industrial property rights and other proprietary rights. Licensor neither grants nor otherwise transfers any rights of ownership or copyrights in the Software or the Documentation to the Licensee and the Licensee shall have only such license rights to use the Software and the Documentation as expressly specified herein.
5 USER CONTENT
As between the Licensee and Licensor, Licensee owns all right, title and interest (including, all intellectual property rights) in and to the vision applications, algorithms, tools and corresponding content Licensee creates using the Software ("User Content") (other than any components of the Software contained therein or used in connection therewith). Any exploitation, combination with third party technologies, other use or transfer of the User Content is at the sole risk and cost of the Licensee, and the Licensor assumes no liability of use of User Content, except as expressly agreed in these Terms. Additionally, Licensee shall be liable to ensure that the end user agrees and accepts the applicable end user license terms.
6 DATA LICENSE, TECHNICAL FEEDBACK
Licensee assigns and transfers to Licensor all rights to any technical feedback, comments and any corresponding information collected by Licensor or provided by Licensee in connection with the use of Software.
7 NO WARRANTY
Software and Documentation is delivered "as is" without warranty of any kind, either express or implied, including without limitation, the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose or non-infringement of third party rights, and Licensee uses Software and Documentation on its own risk and cost.
Licensor is not responsible of the usage or its consequences because of the "freemium"-nature of use. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF USER CONTENT, AND LICENSEE UNDERSTANDS THAT HE/SHE MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH LICENSEE'S USE OF THE SOFTWARE OR DOCUMENTATION.
8 INTELLECTUAL PROPERTY INDEMNIFICATION
If Licensor reasonably believes the Software, when unmodified and used in compliance with applicable Documentation, may infringe third party's intellectual property rights, Licensor may, upon its sole discretion and own cost: (i) procure the right for the Licensee to continue using the Software; (ii) modify the Software to make it non-infringing; or (iii) replace the Software with a non-infringing alternative. Licensor may also, upon its sole discretion, suspend or terminate Licensee's right to use the Software or a part thereof, in which event Licensor as a sole remedy to the Licensee partially refunds the payments paid by the Licensee for use of the Software corresponding the subscription period when as a consequence of termination by Licensor the Software has not been available to the Licensee.
Licensor shall not be liable and Licensee shall indemnify and hold Licensor and/or any of its affiliates or directors harmless from and against the claims, suits and/or actions which (i) results from any alteration, adaptation or modification of the Software by Licensee or any third party; (ii) results from Licensee's non-compliance with these Terms; (ii) results from use of Software by Licensee or third party for any other purpose or otherwise than what has been expressly set forth in these Terms; or (iv) are based upon use, operation or combination of the Software with any other technology.
Licensee will indemnify, defend and hold harmless Licensor at its own expense against any claims related to the User Content.
The foregoing states the sole and exclusive liability of Licensor and the sole and exclusive remedy of Licensee with respect to any claim of intellectual property rights infringement by the Software, Documentation or User Content and neither Licensee nor any other person or entity shall have any right or remedy with respect to any such claim.
9 LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event shall Licensor be liable for any special, direct, indirect or consequential damages whatsoever (including but not limited to, damages for loss of profits, revenues or data), arising out of or in any way related to the use of the Software. Licensee agrees to defend, indemnify, and hold Licensor harmless from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) Licensee's access to or use of any of the Software; (ii) User Content; or (iii) Licensee's violation of these Terms or any other agreement/license with Licensor. Licensor 's maximum aggregate liability will be 15 % of the annual amount of payments payable in accordance with these Terms or 50 Euros, whichever is higher.
In consideration of the Licensee's right to use the Software granted pursuant to these Terms, the Licensee is permitted to use the Software free of charge.
11 LICENSE PERIOD
The License Agreement enters into force and the License is valid as granted by the Licensor when downloading the Software. Licensee is obliged to accept these Terms by ticking the acceptance box when the Licensee starts the first time to use the Software. The Agreement shall remain in force unless terminated by one of the parties with thirty (30) days prior written notice for convenience. In the event of material breach of these Terms, or if Licensee becomes insolvent, the Licensee's use of right subject these Terms shall terminate with immediate effect upon written notice by the Licensor.
Upon expiration of license, Licensee must uninstall the Software, and destroy all copies of the Software and Documentation or return them to Licensor, as instructed by Licensor.
12 SOFTWARE APPLICATIONS
Licensee has a license to the below listed software applications.
Application Number of licenses (unless otherwise consented)
VisionAppster Builder 3.0 1
VisionAppster Engine 3.0 unlimited
The Software and all accompanying materials, and the results of the tests by Licensee, shall be deemed to be confidential information of Licensor. Licensee is not entitled to grant any access to Software by any third parties or persons not employed by Licensee without prior consent of Licensor.
15 APPLICABLE LAW
All claims arising out of or relating to these Terms will be governed by the laws of Finland, excluding its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
Any dispute, controversy or claim arising out of or relating to these Terms, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of Finland Chamber of Commerce. A dispute shall be resolved by three arbitrators. Notwithstanding the preceding sentences, claims for non-payment of monetary charges may be resolved in the district court of the respondent's place of domicile if the respondent does not contest its payment obligation.
Licensor shall not be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure. For purposes hereof, events of Force Majeure are events beyond the control of Licensor whose effects are not capable of being overcome without unreasonable expense and/or loss of time to Licensor. Events of Force Majeure shall include (without being limited to) war, acts of government, export regulations, acts of terrorism, natural disasters, fire and explosions.
If, at any time, any provision of these Terms is deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one which achieves to the extent possible the original purpose and commercial goal of the invalid provision.
Licensor may update or alter these Terms subject to its sole discretion. New version of the Terms shall be available in the Licensor's website. Licensor shall make the new Terms available for the Licensees in minimum 30 days prior to the effective date of such change. Thereafter, the change shall automatically be effective. If the Licensee does not agree to the new Terms, the Licensee is not allowed to use the Software.
A failure to exercise, or any delay in exercising, on the part of either party, any right or remedy hereunder shall neither operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.