VISIONAPPSTER STORE COMPONENT END USER LICENSE AGREEMENT
Last updated: March 3, 2020
The terms and conditions set forth in this VisionAppster Store Component End User License Agreement ("EULA") shall be applied to any and all deliveries of Licensor's software application ("Component") executed between you ("Licensee") and any third party that distributes its Components from the VisionAppster Store ("Licensor"). If Licensee accepts or agrees to this EULA 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 this EULA 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 Component is a proprietary product of Licensor and it is protected by copyright laws and international treaties. The limited license rights defined in this EULA are granted by Licensor. Component is created by using VisionAppster Builder and is provided by the Licensor via VisionAppster Store as a sales platform.
Both parties acknowledge that the EULA for the Component is solely between the Licensor and the Licensee and VisionAppster shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by the Licensor or any Licensee of any of the terms and conditions of any EULA. However, VisionAppster shall be considered as a third party beneficiary of the EULA, and that, upon the parties' acceptance of the terms and conditions of the EULA, VisionAppster will have the right (and will be deemed to have accepted the right) to enforce the EULA as a third party beneficiary thereof.
By installing and using the Component the Licensee indicates that the Licensee accepts, understands and agrees to be bound by the terms and conditions of this EULA. If Licensee does not agree to all the terms and conditions contained herein, it must return the Component and all possible copies thereof to the Licensor.
In these Terms except as otherwise expressly provided herein or unless the context otherwise requires, the following terms shall have the following respective meanings:
"Accompanying Material" shall mean all materials delivered together with the Component.
"Component(s)" shall mean software, applications/components, algorithms, tools, projects and corresponding content developed by using VisionAppster Builder and may be made available at the Store for other Users.
"Documentation" shall mean any and all user manuals, handbooks and other corresponding written materials relating to the Component and required for the correct use thereof, which are accompanied with the Component or otherwise provided by Licensor to the Licensee.
"Integrated Component" shall mean a Component in which the User has integrated another User's Component as a part of its own Component, and which is available to Licensees upon ordering process between Licensor and Licensee.
"Operating Environment" shall mean technical environment in which the Component has been properly tested and is in compliance with, as informed by Licensor.
"VisionAppster" shall mean a company offering VisionAppster Builder software and VisionAppster Store platform to its customers. VisionAppster is not a party of this EULA but has offered VisionAppster Store as a platform to license transaction and acts as the Licensor's agent and "merchant of record".
"VisionAppster Builder" shall mean a software product licensed by VisionAppster to the Licensor subject to separate license agreement, which software the Licensor has used for creating the Component.
"VisionAppster Store" shall mean a webstore feature of VisionAppster Cloud, a platform provided by VisionAppster for the use of users constituting of several features and services, subject to separate agreement between VisionAppster and its customers.
3 GRANT OF LICENSES AND LIMITATIONS THEREOF
Upon terms and limitations hereof Licensor grants to Licensee following licenses:
3.1 License to Components
3.1.1 Validity of Licenses
Generally the licenses for different Components are valid within the major version number of the purchase moment. If the Seller changes the major version number, the Licensee shall purchase new license for that version or continue to use the previously purchased version.
Monthly subscription licenses remain in force for the duration on initial subscription period, and thereafter renews automatically, unless terminated by User in the User's VisionAppster Cloud account forty-eight (48) hours before the renewal of the subscription period.
Per seat licenses are valid permanently for the seat that the license is purchased.
Cloud Balance purchased for Usage based licenses remains in force for three hundred sixty-five (365) days from the purchasing date. Components that are activated under Usage based license remain in force for at least two hundred forty (240) days after the activation.
3.1.2 Reproduction and Implementation
The Licensor hereby grants to the Licensee and Licensee hereby accepts, a worldwide, non-exclusive, non-transferable license, for the terms of this EULA, to make copies of the Component for the purposes to use as such, or as standalone component, or to be incorporated in other Component for purposes of creating Integrated Component as defined in this EULA. The Licensee is entitled to take agreed measures in order to implement the Component to the compatible Operating Environment.
The Licensor grants to the Licensee a restricted, non-exclusive and non-transferable license to use the Component in connection with Operating Environment and solely in compliance with the Documentation.
3.1.3 Right to Sublicense and right to use as a service
Licensor grants to the Licensee a worldwide, non-exclusive, non-transferable right to sublicense, for the terms of this EULA, only to end users who have no right to distribute or sublicense or otherwise transfer or assign the Components sublicensed to end users. However, sublicensing is permitted, provided that (i) the Licensor's (and in case of Integrated Components, also the original Licensor's) Component is available at the Store; and (ii) the Licensor (and in case of Integrated Components, also the original Licensor) receives full payment from each license transaction.
Licensee shall be granted a worldwide, non-exclusive, non-transferable right to use the Component as a part of its service provisioning (SaaS service), provided however that such right to offer is valid only to end users who have no right to distribute or sublicense or otherwise transfer or assign the Components sublicensed to end users. However, sub-licensing is permitted, provided that (i) the Licensor's (and in case of Integrated Components, also the original Licensor's) Component is available at the Store; and (ii) the Licensor (and in case of Integrated Components, also the original Licensor) receives full payment from each license transaction.
3.2 Right to Resell Integrated Components
In addition to the above license, the Licensee is entitled to resell / license any Component uploaded by Licensee in the VisionAppster Store as part of its own Components (Integrated Components).
If the Licensee licenses Licensor's Component as a part of Integrated Components in his/her own name and for his/her own account, the Licensee acts as independent trader as regards both the Licensor of such Component and end users. However, sublicensing is permitted, provided that (i) the Licensor's (and in case of Integrated Components, also the original licensor's) Component is available at the Store; and (ii) the Licensor (and in case of Integrated Components, also the original licensor) receives full payment from each license transaction.
When licensing Integrated Components, the Licensee agrees:
(i) to integrate Licensor's Components (Licensee may modify Components, but shall not reverse engineer, decompile, or disassemble Components, expect and only to the extent that such activity is expressly permitted under mandatory statutory applicable law) to its own Component for purpose of creating the Integrated Component to be offered to end users on its own account without any risk or liability to Licensor;
(ii) to purchase and pay applicable licenses to Components from the Licensor and resell such licenses to end users;
(iii) that with respect of liability issues, Licensee as seller of Integrated Components carries all risks and liabilities with respect of the Component and Integrated Component towards its licensee(s) and VisionAppster shall not be liable for the use of any Component or Integrated Component in any manner whatsoever;
Licensee undertakes to pay for the Licensor as a sole compensation an agreed Component license fee per each Integrated Component which Licensee resells to its end customers.
The Licensee understands that if the Licensor wants to remove a Component from the VisionAppster Store, such Component will be removed from the VisionAppster Store's Component selection within a time period of sixty (60) days. Despite the removal, license to Component granted before removal will remain at the use of the Licensee for the purpose of being integrated as part of Integrated Component for one hundred eighty (180) days after the Component has been removed from the Store's Component selection.
The Licensee understands and agrees that by integrating a Component as part of its Components and by reselling it as Integrated Component, the Licensee shall be solely liable for the Licensor for any use thereof. The Licensee shall be solely liable to make sure that the Integrated Component does not infringe any third-party rights. VisionAppster shall have no liability of Integrated Components.
3.3 Right to use Cloud Engine in Usage based licensing
In the event the Licensor makes its Components or Integrated Components available under Usage based license at the Store for Users, following specific terms apply: VisionAppster is in no event liable for any obligations of Licensor towards its customers, Licensees or any other third parties. VisionAppster's role with respect to the Usage based license sold to Licensee at the VisionAppster Store is limited to provision of Cloud Engine infrastructure. The Licensor is liable for any use and provision of Components and/or services using Cloud Engine for other Users in the Store.
Licensee undertakes specifically not to perform any of the acts referred to in this subsection:
(i) reverse engineer, disassemble, or decompile the Component or any part thereof, except when, and to the extent, such restriction is expressly prohibited by applicable mandatory laws;
(ii) remove, alter, or deface any copyright indication or other notices of any proprietary rights or intellectual property rights from the Component;
(iii) otherwise distribute, sublicense or transfer the Component to any third party except as authorized herein with respect to Integrated Components. There are no implied licenses, unless specified otherwise in this EULA.
The Licensor shall not
(i) have a right to deny the production or use of Integrated Component;
(ii) be entitled to prevent the promoting, marketing, or any other measures aiming to make Integrated Component available to end users;
(iii) restrict other user's rights to use the Component as part of Integrated Component by setting additional or exceptional conditions or taking suchlike technical measures;
(iv) regarding Components already sold in the VisionAppster Store, cancel Licensee's right to use the Component as granted herein, including Licensee's right to resell any Component as part of its Components as Integrated Components or offer as a service; or
(v) set such legal conditions or technical restraints, which would make it legally impossible to use the license as granted herein.
3.5 Open source software
Licensee acknowledges and agrees that some Components or Integrated Components licensed in VisionAppster Store may include Components that are governed by applicable open source software licenses. Licensee shall be liable to study applicable third-party software or open source software terms, and to ensure that the Component / Integrated Component fits for the intended purposes of the Licensee. In the event of any discrepancies between the applicable open source software license and the applicable EULA the applicable open source software license shall apply.
4 DELIVERY OF COMPONENT
The Licensee agrees at its own expense to prepare technical operating environment in conformity of requirements defined in Documentation or otherwise by Licensor. Unless otherwise agreed, Licensor shall provide the Licensee access to a web site where the Licensee is allowed to download a copy or the Component. All sales of the Components are final and non-refundable. The Licensee shall be exclusively responsible for the selection, installation, management and control of its use of the Component.
5 INTELLECTUAL PROPERTY RIGHTS
Licensor or its suppliers retain all rights not expressly granted in this EULA, including without limitation the title and interest to and in the Component 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 Component or the Documentation to the Licensee and the Licensee shall have only such license rights to use the Component and the Documentation as expressly specified herein.
6 LIMITED WARRANTY
Licensor warrants and represents that Component has been properly tested and substantially meets the specifications as stated in writing within a period of ninety (90) days from the delivery of Component to Licensee. In the event any Errors occur within the said period, Licensee shall notify Licensor thereof without undue delay. Licensor shall commence on correcting the Error in Component without any unnecessary delay and as a sole remedy to make available a corrected version of the Component to the Licensee.
Licensor shall have no obligation to correct any Errors if such errors are a result of a fault or negligence of Licensee and/or improper, incorrect, or unauthorized use of the Component, or use of Component in manner, which Component has not been designed, manufactured, or specified for in accordance with the requirements or specifications, or an external cause, i.e. Licensee materials, Licensee technology or other contribution of Licensee, or third party technology. The Parties acknowledge and agree that under no circumstances shall Licensor be liable to correct any errors in the software, if Licensee or any third parties have made any modifications to Component.
Except as expressly granted above, Component 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 Component and Documentation on its own risk and cost.
The express warranties granted above shall define Licensor's entire liability concerning Errors or deviations and all implied or other warranties are hereby excluded. Licensor's duties defined in this Clause are sole and exclusive remedy of Licensee in case of defects of Component or Documentation. 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 COMPONENT OR DOCUMENTATION.
7 INTELLECTUAL PROPERTY INDEMNIFICATION
If Licensor reasonably believes the Component, 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 Component; (ii) modify the Component to make it non-infringing; or (iii) replace the Component with a non-infringing alternative. Licensor may also, upon its sole discretion, suspend or terminate Licensee's right to use the Component 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 Component corresponding the subscription period when as a consequence of termination by Licensor the Component has not been available to the Licensee.
Licensor shall not be liable and Licensee shall indemnify and hold Licensor and its suppliers harmless from and against the claims, suits and/or actions which (i) results from any alteration, adaptation or modification of the Component by Licensee or any third party; (ii) results from Licensee's non-compliance with this EULA; (ii) results from use of Component by Licensee or third party for any other purpose or otherwise than what has been expressly set forth in this EULA; or (iv) are based upon use, operation or combination of the Component with any other technology.
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 Component or Documentation and neither Licensee nor any other person or entity shall have any right or remedy with respect to any such claim.
8 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 Component.
In consideration of the Licensee's right to use the Component granted pursuant to this EULA, the Licensee shall pay Licensor the License fee set forth in the electronic order form in the VisionAppster Store.
All amounts payable are the total prices of the Components and inclusive of any value added tax (VAT) or other corresponding taxes if applicable.
10 APPLICABLE LAW
All claims arising out of or relating to this EULA 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 this EULA, 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, loss or malfunctions of utilities, network, communications or computer (software and hardware) services, fire and explosions.
If, at any time, any provision of this EULA 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 this EULA subject to its sole discretion.
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.
July 3, 2019