baseVISION AG – End User License Agreement for Syntaro, 19th March 2018
This End User License Agreement (“EULA”) grants Customer the right to install, to load, to host and to use the Syntaro software (“Software”) in accordance with the terms of this EULA. This EULA is expressly valid both for software licenses subject to a charge (incl. subscription) and for freeware / demo / trial versions of software licenses, which are free of cost.
Parts of the software licenses under this EULA are subject to third party licenses. All rights reserved.
NOTICE TO ALL USERS: PLEASE READ CAREFULLY THROUGH THE FOLLOWING LEGALLY VALID CONTRACT. THIS EULA IS A LEGALLY VALID, BINDING AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND BASEVISION (‘BASEVISION’) REGARDING ANY USE WHATSOEVER OF ALL BASEVISION SOFTWARE (‘SOFTWARE’). BY INSTALLING THE SOFTWARE OR USING THE ONLINE SERVICE CUSTOMER DECLARES THAT CUSTOMER (WHETHER A NATURAL OR LEGAL PERSON) CONSENTS TO BE BOUND BY THIS EULA AND TO BEING A PARTY TO THE CONTRACT WITH BASEVISION. IF CUSTOMER IS NOT IN AGREEMENT WITH ALL THE PROVISIONS OF THIS EULA, CUSTOMER MUST NOT INSTALL OR USE THE SOFTWARE.
“Minor Release” means a new release of the Software which is merely reserved for fixing security vulnerabilities and addressing bugs and errors and, if at all, only to a limited extent contains functional changes (including new functional, architectural and/or interface elements) without altering the existing functionality, architecture and/or public interfaces in material respects. A Minor Release is dictated by the second and third sequence, i.e. x.2, x.3.1, x.3.2;
„Major Release“ means a new release of the Software which is not limited to a revision of bug fix release, but which does contain and introduce new functionality, user features, interfaces and developer APIs. A Major Release is dictated by the first sequence, i.e. 1.y, 2.y.y;
“Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following and/or similar licenses or distribution models: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Mozilla Public License; and (c) the Apache License;
“Perpetual Model” means the license model under which Customer receives from baseVISION a perpetual license to use the Software against the payment of a one-off license fee;
“Software” means the Syntaro software in binary artefact form made available and delivered by baseVISION or authorized partners (including any embedded Open Source Software and/or Third Party Software components);
“Subscription Model” means the license model under which Customer licenses the Software from baseVISION for a defined period of time only and against a recurring subscription fee;
“Subscription Period” means the period of time for which Customer has subscribed to the Software;
“Subscription” means Customer’s subscription to the Software;
“Third Party Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any proprietary software that is originally manufactured by a party other than baseVISION and/or its affiliates and that is licensed to baseVISION by such supplier to be included in and distributed with the Software.
1. License Grant.
For Software licensed under the Subscription Model, and provided that Customer has paid the appropriate Subscription fees and complies with the provisions of this EULA, baseVISION shall grant Customer the non-exclusive, non-transferable right of use of one copy of the specified version of the Software purchased by Customer and any accompanying media, printed material, documentation in online or electronic format and Internet-based services. Upon expiry of a Subscription Period, Customer shall no longer be permitted to use the expired Software.
For Software licensed under the Perpetual Model and provided that Customer has paid the applicable license fee (where applicable), baseVISION shall grant Customer the perpetual, non-exclusive, non-transferable right of use of one copy of the specified version of the Software purchased by Customer and any accompanying media, printed material, documentation in online or electronic format and Internet-based services.
Customer’s license with regard to the Software under the Subscription Model will continue for and automatically expire as per the end of the Subscription Period.
Regardless whether the Software is licensed under the Subscription or the Perpetual Model, this EULA will automatically be terminated and other legal remedies will be available to baseVISION in the event (i) Customer uses and/or copies the Software in an unauthorized manner and/or Customer fails to comply with the terms specified in this EULA; or (ii) Customer goes into liquidation, suffer or make any winding up petition, make an arrangement with Customer’s creditors, or suffer or file any similar action in any jurisdiction.
Any use of the Software, the accompanying documentation and any copy of the Software and/or such documentation after expiry or termination of the EULA is unlawful.
3. Software Assurance and Technical Support.
Under the Subscription Model, Customer is entitled to, during the Subscription Period, receive from baseVISION any Minor Releases of the Software which baseVISION is officially offering to its entire client base from time to time (“Software Assurance”). The provision of any such Minor Releases are included in the Subscription fee.
Major Releases of the Software licensed will normally be provided to Customer as part of Software Assurance and against no additional charge. However, baseVISION reserves the right to, at its sole discretion, elect to provide a particular Major Release and/or all new Packages of the Software at a charge additional to the applicable Subscription fee.
Under the Perpetual Model, Customer will receive Software Assurance (as specified above) only upon entering into an additional, separate written agreement with baseVISION and paying an additional fee. If Customer does not subscribe to Software Assurance, Customer will not be eligible to receive from Customer Minor and/or Major Releases of the Software.
Customer acknowledges that Licensor has no technical support obligations with regard to the Software unless Customer has purchased an additional support services package from baseVISION under a separate support agreement and against an additional fee. In any case, baseVISION only provides technical support with regard to the Software for the then-current version of the Software and two Minor Releases back.
4. Property rights.
The Software is protected by international laws of copyright and conventions. baseVISION and its distributors hold all property rights and rights of use in the Software, including all patents, trade secrets and brand names or other property rights contained therein. Customer’s possession, installation or use of the Software shall not transfer to Customer any property rights whatsoever in the Software and Customer shall obtain only the rights, which are expressly specified in this EULA. All copies of the Software made in connection with this EULA must be provided with the same notices as to ownership, as are included in the Software.
Open source and third party software. Customer hereby acknowledges that the Software may contain Open Source Software and/or Third Party Software. Customer agrees to review any documentation that accompanies the Software or is identified in the documentation for the Software in order to determine which portions of the Software are Open Source Software and/or Third Party Software and are licensed under a specific Open Source Software license and/or proprietary license.
To the extent any such license requires that baseVISION provides Customer the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Customer in this EULA, then such rights in the applicable Open Source Software license and/or proprietary Third Party license shall take precedence over the rights and restrictions granted in this EULA, but solely with respect to such Open Source Software and/or the relevant Third Party Software. Customer acknowledges that any Open Source Software license and/or identified Third Party license is solely between Customer and the applicable licensor of the relevant Open Source Software or Third Party Software. Customer agrees to comply with the terms of all applicable Open Source Software and/or Third Party licenses. Copyrights to the Open Source Software or Third Party Software are held by the copyright holders indicated in the copyright notices in the corresponding source files.
5. Restrictions. Customer may not pass on, rent out, lease out or sell on the Software and Customer may not transfer to third parties any rights granted under this EULA. Customer is not entitled to reverse engineer, decompile, hack, translate or dis-assemble the Software (unless this limitation is expressly forbidden by applicable law). Customer may not modify the Software either in whole or in part, nor may Customer generate derivatives from it. Customer is entitled to copy the Software exclusively for the purposes specified in Section 1. Customer may not remove any proprietary notices from the Software. In addition, Customer must ensure that none of the actions specified in this Section 6 are carried out by third parties. baseVISION reserves all rights, including those not expressly specified herein.
6. Warranty and exclusion clause.
a. Restricted warranty. For a period of sixty (60) days from date of purchase, baseVISION warrants that all applicable data storage devices (e.g. CDs), on which the Software is supplied, shall be free from material and processing defects.
b. Claims by the customer. The joint and several liability of baseVISION or its distributors and your sole claim arising from this warranty consists at the sole discretion of baseVISION (1.) in the reimbursement of the purchase price paid for the licence (if applicable) or (2.) in the replacement of the defective data storage device with the Software. You must return the defective data storage device, together with a copy of the invoice at your own costs to baseVISION. This restricted warranty shall not apply, if the data storage device has been damaged through accident, misuse or incorrect use. The remainder of the warranty term shall apply to the replacement data storage device. This claim shall not apply up to the extent, to which baseVISION is subject to the restrictions of export control laws and regulations.
c. Caveat emptor. THE SOFTWARE IS SUPPLIED ON AN AS IS BASIS AND WITHOUT ANY GUARANTEE WHATSOEVER. TO THE FULLEST EXTENT OF THE APPLICABLE SWISS LAW BASEVISION EXCLUDES ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER, INCLUDING, HOWEVER NOT LIMITED TO, THE TACIT WARRANTY OF QUALITY USUAL IN THE TRADE, ELEGIBILITY FOR A STATED PURPOSE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. CUSTOMER HEREBY AGREES THAT CUSTOMER IS RESPONSIBLE FOR SELECTING SOFTWARE TO ACHIEVE THE INTENDED PURPOSES AND FOR THE INSTALLATION, USE AND EXECUTION RESULTS OF THE SOFTWARE. WITHOUT LIMITATION TO THE FOREGOING PROVISIONS BASEVISION GUARANTEES NEITHER THAT THE SOFTWARE IS FREE FROM ERRORS NOR THAT IT IS INTERRUPTION-FREE AND EXCLUDES ANY LIABILITY WHATSOEVER FOR PROBLEMS CONCERNING COMPATIBIILITY WITH OTHER SOFTWARE PACKAGES OR WITH OPERATING SYSTEMS, FOR OTHER FAULTS OR FOR THE NON-FULFILLMENT OF CUSTOMER REQUIREMENTS, AND IRRESPECTIVE OF WHETHER THIS HAS BEEN EXPRESSLY GRANTED OR NOT.
d. Limitation of liability. BASEVISION AND ITS DISTRIBUTORS HEREBY EXCLUDE ANY LIABILITY WHATSOEVER TOWARDS CUSTOMER OR TOWARDS THIRD PARTIES (WHETHER NATURAL OR LEGAL PERSONS) FOR INDIRECT OR SPECIAL DAMAGES, FOR COMPENSATION FOR DAMAGES AND FOR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER, INCLUDING, HOWEVER NOT LIMITED TO, DAMAGES CAUSED BY THE LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER LOSSES. THIS SHALL APPLY IRRESPECTIVE OF WHETHER THE DAMAGE HAS BEEN CAUSED BY A TORT, A BREACH OF CONTRACT OR IN ANY OTHER WAY. BASEVISION’S TOTAL LIABILITY FOR ALL DAMAGES SHALL BE LIMITED TO BASEVISIONS LIST PRICE FOR A LICENCE FOR THE SOFTWARE, NAMELY ALSO, WHERE BASEVISION HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT EXTEND TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT THE APPLICABLE LAW PROHIBITS SUCH LIMITATIONS. The foregoing provisions shall apply to the maximum extent permitted by the applicable law.
7. High-risk Activities. The Software is not fault tolerant and has not been developed or designed for use in hazardous environments, in which failure-free operation is required, as for instance in nuclear technical installations, aircraft navigation or communication systems, in flight safety, in weapons systems, direct life-support machines or other applications, in which a software failure would lead to death, personal injury or serious damage to property or to the environment (collectively ‘High-risk Activities’). baseVISION hereby excludes any express or implied warranty for the eligibility of the Software for High-risk Activities.
8. Export Regulations
Regardless of any disclosure made by Customer to baseVISION of an ultimate destination of the Software licensed from baseVISION and, notwithstanding anything contained in this EULA to the contrary, Customer agrees that Customer shall comply with U.S. and all applicable local laws, regulations, and export requirements in connection with Customer’s performance under this EULA. Customer expressly agrees not to export or re-export the Software or any portion thereof to any country, person, entity and/or end user subject to U.S. or other applicable export restrictions. Customer specifically agrees not to export, re-export, or transfer the Software to any country to which the U.S. and/or, as per applicable local law or regulation, Customer’s country of domicile has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. and/or other export transactions by any federal agency of the U.S. or other government. Customer warrants and represents that neither the U.S. Bureau of Export Administration nor any other agency in Customer’s country of domicile has suspended, revoked or denied Customer export privileges.
9. Miscellaneous. This EULA, as well as its respective interpretation and enforceability are subject to substantive Swiss law, to the exclusion of (i) international conventions, including the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG), and to the exclusion of (ii) conflict of laws principles.
In the event of dispute, the ordinary courts at the domicile of baseVISION will have sole and exclusive jurisdiction. However, baseVISION will be entitled to assert claims against Customer before any other competent court.
This EULA defines all the rights of the User of the Software and forms the mutual agreement between the parties. This EULA has priority over all other agreements with respect to the Software and the documentation. This EULA may be amended only by a written addition by baseVISION. The provisions of this EULA may be abrogated only by a written, signed statement of waiver by baseVISION. In the event that any provision of this EULA is declared to be void, the remaining provisions shall be deemed to remain effective. The provision declared void shall be retained to the greatest possible extent, to which it is consistent in law with the intended purpose and in conformity with the character of this EULA. The parties declare that they are in agreement that this contract shall be published solely in English. None of the provisions in this Section 9 can be construed to the effect that Customer is obliged to disclose confidential or private information to third parties.
10. Customer declarations and covenants. Customer declares and affirms that Customer is entitled to conclude this contract and that Customer shall comply with its provisions. Furthermore, Customer declares and affirms that Customer shall comply with all obligations arising from this EULA and with all applicable laws, provisions and directives concerning the Software. Customer agrees that Customer accepts full and unlimited liability for any use whatsoever, which is contrary to this EULA and irrespective of whether this is prescribed by law or directly or indirectly caused by Customer. Customer declares that Customer agrees to discharge baseVISION and to hold baseVISION harmless from all claims for liability, which result from Customer’s breach of this EULA or Customer’s failure to observe the applicable laws, provisions and directives or which arise in conjunction with the said breach or failure.
11. CONTACTING baseVISION. If you have any queries concerning the provisions of this Agreement or wish to contact baseVISION for any other reason, write to baseVISION AG, Industriestrasse 14, CH-4658 Däniken, or contact us via our website www.basevision.ch.