SOFTWARE END USER LICENSE AGREEMENT – ONLINE PRODUCTS
PART I – SOFTWARE END USER LICENSE AGREEMENT
Applicability of the EULA
1.1 This Software End User License Agreement (the “EULA”), governs the End User’s (as defined below) use of the Software (as defined below) which is the property of XMReality AB (publ), registration number 556722-7284, a Swedish company, hereinafter referred to as “XMR“.
1.2 XMR provide the End User with
(i) certain software installed on computers of the End User as well as accessed and used via web browser, and apps for mobile terminals (e.g. iOS, Android) that enable video based remote guidance (“Software”);
(ii) servers for the establishment of encrypted connections (hand-shake) and for the forwarding of data packets (routing) in connection with the use of the Software (“Server Services”); and
(iii) related support services (“Support Services”). The Server Services and the Support Services are collectively referred to herein as “Services”.
2. Formation and content of the Paid Contract for the License
A Paid Contract (as defined below) pursuant to this EULA for Subscription Software licenses shall be formed, if
(i) the End User consummates the web-based order process on the XMR website (www.xmreality.com) and, at the end, clicks on the “Purchase” / “Order” / “Subscribe” or similarly named button after having accepted this EULA, or if
(ii) the End User and XMR sign a written order form which references this EULA, or if
(iii) the End User orders by phone and receives an order confirmation attaching the EULA by e-mail. Details regarding the Paid Contract (e.g. selected Software, scope of functions, price, term, Services, etc.), will be set forth in the options selected by the End User from the specifications provided by XMR during the ordering process, or respectively on the order form (hereinafter all consistently referred to as “Order”, and hereinafter this EULA and the Order together shall be referred to as the “Paid Contract”).
3. Trial Use
Prior to entering into a Paid Contract, XMR may, but is not obliged to, provide the End User with the opportunity of a trial use for the Software and the Server Services during a defined trial use period (the “Trial Use”). For any Trial Use, this EULA shall also apply.
4. Grant of license
4.1 Subject to the terms and conditions of the EULA to use the Software, XMR and its licensors (collectively referred to as “XMR”) hereby grant to the person using the Software (the “End User”) a non-exclusive, non-assignable and non-transferable license to use (the “License”), the Software in relation to which this License is granted, including any printed documentation or documentation files published by XMR and accompanying the Software (the “Documentation”). The License entails a right for the End User to use one (1) copy of the Software for one (1) individual user, on unlimited physical devices, unless otherwise set forth in the applicable subscription agreement for the Software, and for the period specified in the applicable subscription agreement for the Software. The individual user corresponds, unless otherwise defined, to one physical person. Sharing of user IDs with others is not allowed. The Software will be provided to the End User in object code only and accordingly no source code will be provided or be subject to the License.
4.2 This EULA shall also apply to any updates, upgrades and new versions of the Software, unless otherwise expressly agreed in writing between XMR and the End User. For avoidance of doubt, the License does however not govern or modify the terms and conditions of any third party proprietary software contained in or delivered together with the Software. The End User’s right to use all such third party proprietary software shall be governed by the relevant third party’s license terms and conditions, if any. Such third party license terms and conditions can be made available to the End User by XMR upon prior written request.
5. Provision, installation and configuration of the Software
5.1 XMR shall provide the Software to the End User for electronic download. The End User shall be solely responsible for the installation and configuration of the Software. XMR is not responsible for any installation or configuration.
5.2 After completing the Order for a Subscription, the End User shall receive an e-mail confirmation. Once the Subscription is active, the rights of use and functionalities in accordance with the Paid Contract shall be available to the End User.
6. Services provided by XMR
6.1 For the establishment of encrypted remote communication connections between different users of the Software, the Software must communicate with servers of XMR (so-called “hand-shake”). In addition, it may be necessary for the transmission of data in the context of a session (e.g. online meeting or remote maintenance) that encrypted data packets be forwarded by servers of XMR (so-called “routing”). Such hand-shake and routing are made available in connection with XMR’s Server Services.
6.2 XMR provides the End User with the Server Services subject to the conditions set out in this EULA. It is not part of the Server Services to safeguard an interruption- and latency-free end-to-end connection between different users of the Software. The End User acknowledges that the Server Services may be unavailable or include latency from time to time due to technical difficulties or due to causes beyond the reasonable control of XMR. Additionally, the End User acknowledges that the end-to-end connection between different users of the Software is dependent on the End User’s internet connection to the data center as well as the End User’s use of hardware and software (e.g. PC, operating system) in compliance with system requirements for the Software, all of which shall not be included in the services provided by XMR and shall be End User’s responsibility. The respective costs shall be borne by End User.
6.3 XMR’s only obligation for Support Services shall be to provide specific Support Services via e-mail as per the Service Level Agreement (SLA) available on the XMReality web page and applicable for the online products.
7. Provision, installation and configuration of the Software
7.1 The requirements for the End User’s software and hardware are specified in the manuals and the product specification. The End User shall familiarize itself with the system requirements prior to using the Software and use the Software in accordance with these system requirements.
7.2 XMR may change the Software in the context of updates and/or releases as well as the Server Services (including the system requirements) for good cause. Such good cause shall exist especially if the change is required due to (i) a necessary adaptation required by applicable law, (ii) changes to applicable technical framework conditions (new encryption standards), or (iii) the protection of the system security.
8. Ownership and intellectual property rights
8.1 The End User has no right, and does not gain any ownership rights, in the Software (or any intellectual property rights contained therein), but only the limited license rights according to the License as set out in this EULA. The rights of use granted shall not include any rights to the source code of the Software.
8.2 The Software, Documentation and all and any intellectual property rights associated therewith and in relation thereto, including but not limited to patents, design rights, copyrights, trademarks, trade-secrets and proprietary know-how, are and will remain at all times the sole and exclusive property of XMR, its licensors (if any) and the End User has no right, title or interest in or to the Software, Documentation or the intellectual property rights associated therewith, except as expressly granted in the License. The end-user shall not attempt to re-create any software functionality through backwards engineering, or utilize any other means to copy or re-create the functionality provided by the XMReality software.
8.3 This EULA does not grant the End User any rights in the trademarks or service marks of XMR, all of which remain the exclusive property of XMR and its affiliates. Any proprietary right notices on the Software, Documentation or their associated packaging, regarding patents, copyright, trademarks or other intellectual property rights may not be altered or removed by the End-User.
8.4 Upon XMR’s request, the End User agrees, at XMR ’s reasonable expense, to take such actions as XMR may reasonably request to protect or perfect XMR ’s ownership in the Software or the Documentation.
9. Copies of the Software and the Documentation
9.1 The Software and Documentation contain material that is proprietary to XMR and protected by copyright laws and international treaty provisions. Accordingly, the End User must not make copies of the same, except to the extent set forth in this EULA. The End User may however exercise all rights as follow under applicable statutory law.
9.2 The End User may only copy the Software and the Documentation for the End User’s own benefit, account and use (primarily for back-up and IT-security purposes). The End User shall at all times maintain any copyright notices provided on the Software, Documentation and associated packaging and any copies thereof. The End User shall ensure that any permitted copy of the Software is produced for the End User’s own benefit only, that it is clearly marked on the copy that such copy is subject to copyright and confidentiality, and that a written list is maintained of the number of copies and place of storage.
10. License restrictions and non-assignment
10.1 This EULA grants the End User the right to use the Software for internal purposes only.
10.2 The rights of use granted under the Paid Contract shall be limited in time to the term specified in the applicable Order.
10.3 Any use of the Software exceeding the contractually agreed scope of usage is expressly prohibited.
10.4 The End User must protect the Software and Documentation in a manner consistent with XMR’s rights expressed in this EULA. The End User may not sublicense, modify, distribute, or create derivative works based on the Software or any part thereof. The End User may not reverse engineer, decompile, disassemble, translate, or adapt the Software, nor shall the End User attempt to create the source code from the object code of the Software unless explicitly permitted by applicable mandatory law.
10.5 The End User acknowledges and agrees that the intellectual property associated with the Software and the Documentation, and any other nonpublic information of a technical or commercial nature concerning the Software and the Documentation disclosed to the End User in connection with this EULA constitute XMR’s confidential proprietary information and trade secrets, and the End User agrees to hold such information in strict confidence.
10.6 The End User shall have no right to transfer or assign the License or the End User’s rights or obligations under this EULA in whole or in part, and any attempted transfer or assignment shall be null and void.
11. Infringement of third party rights
11.1 XMR does not provide any warranties that the Software does not infringe any copyright or misappropriates any trade secret recognized as such under applicable law and shall not be liable for any costs and damages awarded against the End User in connection with any claim by a third party that the Software infringes any copyright or misappropriates any trade secret recognized as such under applicable law.
11.2 Furthermore, XMR shall have no liability to the End User for any claim that relates to the Software, including but not limited to, claim that:
11.2.1 arises out of any unauthorized use, reproduction or distribution of the Software;
11.2.2 arises out of any modification or alteration of the Software by anyone other than XMR;
11.2.3 arises out of the use of the Software in combination with any other software or equipment not provided by XMR or otherwise approved in writing by XMR (including such general instructions/recommendations from XMR as equipment/software compatible with the Software) to; or
11.2.4 would have been avoided by use of the then-current release of the Software (if such has been recommended to the End User by XMR) or if the End User had followed XMR’s reasonable earlier instructions regarding implementation of any other later version of the Software (provided that End User’s adherence to such instructions does not significantly adversely affect End User’s agreed use of the Software).
11.3 If the Software becomes, or in XMR’s opinion is likely to become, subject of an infringement or misappropriation claim, XMR may (but is not obliged), at its own expense and option, elect to either: 11.3.1 withdraw the right (by means of a modification of the Software, acquisition of third party license or otherwise) for the End User to continue using the Software in accordance with the provisions of this EULA;
11.3.2 make such alterations, modifications, or adjustments to the Software so that the infringing Software or Documentation becomes non-infringing without incurring a material diminution in performance or function.
11.3.3 replace the Software with a non-infringing substantially similar substitute; or
11.3.4 reclaim the Software and terminate the EULA.
11.4 THIS SECTION STATES XMR’S ENTIRE LIABILITY FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OR MISAPPROPRIATION OF THIRD PARTY TRADE SECRETS IN RELATION TO THE SOFTWARE AND/OR THE DOCUMENTATION.
12. Usage analyses, right to audit and self-declaration
XMR may analyze the End User’s use of the Software and Services for security reasons as well as for product improvement, license auditing and/or marketing purposes. To that end, XMR may, at its sole discretion, also implement technical measures regarding the functionality of the Software and the Server Services to assess whether the End User’s usage pattern is in line with the indicated usage purpose and thus with the chosen license type and to detect whether the contractually agreed scope of use is being exceeded by the End User. Also, XMR may require the End User, at any time, to provide a self-declaration regarding its actual scope of use and/or usage pattern.
13. No warranties
13.1 THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED TO THE END USER “AS IS” AND SHALL MATERIALLY CONFORM TO XMR’S SPECIFICATIONS AND INSTRUCTIONS IN RELATION TO THE SAME, INCLUDING THE DOCUMENTATION. XMR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR CAN BE USED UNINTERRUPTED. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT ARE HEREBY DISCLAIMED.
14. Limitation of Liability
14.1 IN NO EVENT SHALL XMR BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND CAUSED BY THE SOFTWARE OR OTHERWISE UNDER THIS EULA, WHETHER DIRECT OR INDIRECT, INCLUDING ANY LOSS OF PRODUCTION, LOSS OF DATA, LOSS OF BUSINESS OR PROFIT, LOSS OF GOODWILL, THE END USER’S OBLIGATION TO COMPENSATE A THIRD PARTY OR ANY OTHER DAMAGES.
14.2 IN NO CASE SHALL XMR’S LIABILITY EXCEED THE FEES END USER PAID FOR THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM DURING THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
14.3 THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS EULA SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Termination and amendment
15.1 The EULA shall apply until terminated pursuant to this Section 15 or expires or is terminated in accordance with the terms of the EULA or any applicable agreement for the Software.
15.2 This EULA may be terminated immediately
15.2.1 forthwith by XMR if the End User commits a breach of the EULA;
15.2.3 forthwith by XMR if the End User or the company having procured the License is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or if a receiver or administrator is appointed over its assets; or
15.2.4 forthwith by XMR if XMR in its reasonable opinion in accordance with subsection 11.3.4 has determined that neither of its other options in Section 11.3 (with subsections) is available.
15.3 If the EULA is terminated, the End User shall immediately upon the termination cease to use the Software and, in XMR’s reasonable discretion, return or delete the Documentation.
15.4 In the event the End User has committed a material breach of the EULA, the End User shall compensate XMR for its damages, costs, or loss, regardless if XMR chooses to terminate the EULA or not.
15.5 All provisions relating to confidentiality, intellectual property rights, nondisclosure and limitation of liability shall survive any termination of this EULA.
15.6 This EULA may be amended at any time by XMR provided that XMR has given the End User 10 days written notice of the amendment. If the End User has not objected to such amendment within that period or continues to use the Software after having received the notice, the End User shall be deemed to have accepted the amendment.
16. Export Control License
16.1 To XMR’s knowledge, the Software is not subject to any export control license. However, should the Software be subject to any export control licenses or any other Swedish or foreign governmental restrictions, the End User undertakes to conform to and apply the – from time to time – valid terms of such export control licenses or restrictions.
17. Entire agreement and waiver
17.1 This EULA governs the agreed use by the End User of the Software to the exclusion of all other written or verbal representations, statements, understandings, negotiations, proposals or agreements other than those confirmed by XMR in writing and expressly incorporated or referred to in the EULA. Any inconsistent or conflicting terms and conditions contained in any Order Confirmation or similar instrument of End User shall be of no force or effect, unless XMR has explicitly approved such terms and conditions in writing. This requirement of explicit approval applies in any case, regardless of whether XMR provides Software or Services to the End User in knowledge of the End User’s general terms and conditions without explicitly objecting to them.
17.2 A party’s waiver of any of its rights under this EULA must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
17.3 If any provision of the Paid Contract is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of the Paid Contract shall remain in full force and effect. A waiver of any breach or default under the Paid Contract shall not constitute a waiver of any other subsequent breach or default.
19. Force Majeure
19.1 XMR is not responsible and liable for any outcome affecting the service resulting from a Force Majeure event.
20. Lawful Use, Economic Sanctions and Code of Conduct
20.1 The End User shall only use the Software and the Server Services only in accordance with the provisions of the Contract and in accordance with laws and regulations applicable to such use, in particular all applicable data protection and export control provisions and shall not infringe any third-party rights in connection with such use.
20.2 The End User represents that it is not (i) a Restricted Party (as defined below); (ii) currently engaging in any transaction, activity or conduct that could result in a violation of applicable Sanctions (as defined below) and warrants that it will not make available the Controlled Technology directly or indirectly, to, or for the benefit of, any Restricted Party. This section shall only apply to Customer to the extent that the provisions herein would not result in (i) any violation of conflict with or liability under EU Regulation (EC) 2271/1996 or a similar antiboycott statute. “Restricted Party” means any person (i) designated on any Sanctions List, (ii) that is, or is part of, a governmental authority of a Sanctioned Territory, (iii) owned or controlled by, or acting on behalf of, any of the foregoing, (iv) located, organized, or resident in, or operating from, a Sanctioned Territory, or (v) otherwise targeted under any Sanctions. “Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under Sanctions. “Sanctions” means economic or financial sanctions or trade embargoes or other comprehensive prohibitions against transaction activity pursuant to anti-terrorism laws or export control laws imposed, administered or enforced from time to time by the US, EU, UN or Sweden.
21.1 The validity and term of this EULA is governed by the subscription term as defined in the Order Confirmation sent by XMR to the Customer.
22. Disputes and applicable law
22.1 This EULA shall be governed by and construed in accordance with the laws of Sweden, without regard to its conflict of law principles providing for the application of the laws of any other jurisdiction.
22.2 The parties agree that the courts of Sweden shall have exclusive jurisdiction to hear and settle any dispute, controversy or claim (Paid Contractual or non-Paid Contractual) arising out of or in connection with this Paid Contract, or the breach, termination or invalidity thereof.
PART II – SUPPLEMENTARY PAYMENT PROVISIONS REGARDING SUBSCRIPTION
During the term of the Paid Contract, the End User shall pay to XMR the recurring user fee specified in the Order for the rights of use to the Software and the provision of the Services.
2. Due Date
Unless otherwise specified in the Order, all fees shall be due upon invoicing.
Unless otherwise specified in the Order, XMR shall invoice the user fee at the beginning of the Contract and subsequently at the beginning of each Renewal Term. The invoicing shall be made (i) online via an email to the email address provided by the End User or (ii) if an XMR account has been created, through an upload into the End User’s XMR account and/or the notification of the End User via email. The End User shall only be entitled to the delivery of an invoice by mail.
4. Payment Methods
The invoiced amounts may be paid by credit card.
5. Price Changes
XMR shall be entitled to reasonably increase the user fee effective as of the end of the Initial Term or any Renewal Term. XMR must announce the increase at least 28 calendar days beforehand. The End User may object to the increase within 14 calendar days of the announcement, in which case the Paid Contract shall be terminated at the end of the respective Initial Term or Renewal Term. If the End User does not object, this shall be deemed as his consent to the increase. XMR shall inform the End User in its notification about this effect of non-objection.
6. Late payment
(i) Reminder fee. In the case of a second payment reminder, XMR shall be entitled to charge a reminder fee.
(ii) Suspension in case of default. If the End User defaults on the payment of the user fee, XMR shall be entitled to suspend the Server Services temporarily (“Suspension”). However, XMR shall warn the End User of the Suspension reasonably in advance, e.g. via email or notifications in the Software. The Suspension shall not take place or respectively be stopped once the End User has made his payment in full. During the Suspension period, no connections can be established from and to the installations of the End User’s Software. The End User’s obligation to pay the user fee shall continue to be in effect during the Suspension period.
(iii) Termination in case of default. XMR may terminate the Paid Contract if the End User defaults on the payment of the user fee and fails to cure the breach within fifteen (15) days of receiving notice from XMR. Termination is in addition to (and not in lieu of) any other rights and remedies available to XMR hereunder or at law.