End User License Agreement (EULA)

Transcription

1 End User License Agreement (EULA) SIEMENS End User License Agreement for commercial mobile applications IMPORTANT: The Software has been designed for use with ios devices. You may use the Software solely on an ios product. After installing the Software You will be prompted to indicate Your acceptance of these terms by clicking the agree button. By clicking the agree button and/or by using the Software You confirm that You have read and understood this Agreement and that You have accepted these terms and conditions. If You do not agree with this Agreement, You must stop using the Software and immediately uninstall it from all Your devices. You acknowledge that this Agreement is concluded between You and SIEMENS, and not with the provider of the online marketplace where the Software has been offered. You further acknowledge that SIEMENS is solely responsible for the licensed Software, the content thereof and for any claims relating to the licensed Software or this Agreement. 1. Definitions. (a) Agreement means this End User License Agreement for mobile applications. (b) Authorized Users means (i) You, if you are a natural person and (ii) Your employees, if you are a legal entity, but not employees of other legal entities (including employees of any legal entity that is Your subsidiary or part of a group of companies affiliated with You). (c) SIEMENS means Siemens Aktiengesellschaft, a German corporation with its head offices in Munich and Berlin and its affiliated companies that are directly or indirectly owned or controlled by the ultimate parent company Siemens Aktiengesellschaft. (d) Software means any software in particular mobile application software that is licensed by SIEMENS to You under this Agreement. (e) Territory means the country in which You have purchased the Software. (f) You and Your refers to the purchaser of Software pursuant to this Agreement and may refer to a natural person or to a legal entity including, but not limited to, a corporation, partnership or a limited liability company. 2. Ownership of Software/Third party software. (a) THE SOFTWARE IS A PROPRIETARY PRODUCT OF SIEMENS OR THIRD PARTIES FROM WHOM SIEMENS HAS OBTAINED LICENSING RIGHTS. THE SOFTWARE IS

2 PROTECTED BY COPYRIGHT LAWS AND OTHER INTELLECTUAL PROPERTY LAWS. TITLE TO THIS SOFTWARE, ANY COPY OF THIS SOFTWARE, AND ANY INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE WILL AT ALL TIMES REMAIN WITH SIEMENS AND SUCH THIRD PARTIES. Your rights are defined by this Agreement. SIEMENS retains the right to utilize its affiliated companies, authorized distributors, authorized resellers and other third parties in pursuing any of its rights and fulfilling any of its obligations under this Agreement. (b) In case the Software contains open source software or similar third-party software (hereinafter referred to as "OSS") the OSS is listed in the Software. You are entitled to use the OSS in accordance with the respective license conditions of the OSS. The license conditions of the respective OSS shall prevail over this Agreement with respect to the OSS. If the license conditions of the OSS require the distribution of the source code of such OSS SIEMENS shall provide such source code on request against payment of shipping and handling charges. (c) In addition to OSS, the Software may be or contain other licensed software, i.e. software which has not been developed by SIEMENS itself but which has been licensed to SIEMENS by a third party (hereinafter referred to as the "Licensor"), e.g. Microsoft Licensing Inc. In the event that you receive the terms and conditions stipulated by the relevant Licensor together with the Software, such terms and conditions shall apply with respect to the Licensor's liability vis-à-vis You. SIEMENS's own liability vis-à-vis You shall be governed in any case by this Agreement. 3. License Grant. SIEMENS grants to You a nonexclusive, nontransferable, nonsublicensable license to use the Software on the type of device and with the operating system for which the Software was designed to operate within the limits of this Agreement, in particular, but not to limited to, to the export restrictions contained herein. SIEMENS reserves all rights not expressly granted to You. If this Software is obtained as an upgrade or provided as an update to a previous version of licensed Software, this Software may be used only to replace the previous version, and no additional license is granted. 4. Your Responsibilities and Prohibited Actions. (a) Confidentiality. Pursuant to this Agreement, SIEMENS will share the Software and other confidential business information of SIEMENS or its third party suppliers with You. You will hold such information in confidence and take the precautions necessary to safeguard the confidentiality of such information. (b) Remarketing of Software. The following uses of the Software are expressly forbidden to cause or permit: (i) disclosure to, or access or use of the Software by anyone other than Authorized Users and (ii) the loan, publication, transfer of possession (whether by sale,

3 exchange, gift, operation of law or otherwise) of the Software, in whole or in part, to or for any third party. (c) Transfer of Software. You may not transfer or assign all or any portion of the Software, or any rights granted in this Agreement, to any other person without the prior written consent of SIEMENS. (d) Reverse Engineering or Modifying the Software. You will not reverse engineer, decompile, translate, disassemble, or otherwise attempt to discover the source code of the Software. The prohibition against modifying or reverse engineering the Software does not apply to the extent that You are allowed to do so by applicable law including, but not limited to, the European Union Directive on the Interoperability of Software or its implementing legislation in the member countries. (e) Export. SIEMENS shall not be obligated to fulfill this contract if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. You are required to provide all information and documentation required for exporting, transporting and/or importing the goods. The export of the Software may require one or more permits, for example to their nature or purpose (see also any notes on other order and delivery documents). (f) Legal Compliance. You may not use or otherwise export or re-export the Software except as authorised by U.S. law and other applicable laws, in particular but not limited to the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (i) into any country embargoed by U.S. or other applicable export restriction laws or (ii) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List or any other person lists of other applicable export restriction laws. By using the Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software in such countries or for any purposes prohibited by U.S.s law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. (g) You agree that SIEMENS and the provider of the online marketplace where the Software has been offered may enforce this Agreement as it relates to their products and services directly against You. 5. Choice of Law and Jurisdictions. Agreement shall be governed by and construed in accordance with the substantive laws of the Federal Republic of Germany, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Sole venue for all disputes arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be Munich. However, SIEMENS may also bring an action at Your place of business.

4 6. Warranty. (a) The Software is provided to You on an "As-is" and As available basis, without SIEMENS maintenance services. Siemens shall correct errors at its own discretion by supplying an update in which the error has been remedied. (b) Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply accordingly with respect to Customer s rights of rescission and reduction. This shall not apply where longer periods are prescribed mandatory by law. (c) Claims shall be filed without delay and in written form. (d) If repair or replacement is unsuccessful, You are entitled to rescind the contract claim a reduction of the remuneration; any claims for damages or any claims for indemnification for useless expenditure (together hereinafter referred to as Claims for Damages ) You may have according to clause 6 (g) shall be unaffected. (e) Claims arising from errors shall not be recognized in the event of minor deviations from the relevant documentation, or minor adverse effects on the usability. (f) Error diagnosis and correction shall be implemented at SIEMENS' premises or at the place where the Software installed, as SIEMENS sees fit. You shall submit the documents and information available to it and required for error correction to SIEMENS. If SIEMENS corrects the error at the place where the Software is installed, You shall arrange that the required hardware and software as well as the required operating statuses and qualified operating personnel are available to facilitate swift performance of the works. (g) You shall have no claim for damages based on defects. This shall not apply to the extent that a defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health and/or intentionally or grossly negligent breach of contract on the part of Siemens. The above provisions do not imply a change in the burden of proof to Your detriment. Any other or additional claims of You based on a defect and exceeding the claims provided for in this Section 6 shall be excluded. 7. Industrial Property Rights and Copyright; Defects of Title Unless otherwise agreed, Siemens shall provide the Software free from third parties industrial property rights and copyrights (hereinafter referred to as "IPR") with respect to the country of the place of delivery only. If a third party obtains an court judgment against You that cannot be appealed based on an infringement of an IPR that existed at the time of publication of the Software, and that was caused by Siemens by the Software (provided that the Software has been used in conformity with this Agreement), Siemens shall be liable to You within the time period stipulated in Clause 6.b as follows:

5 (a) SIEMENS shall at its own discretion either acquire, at its own expense, the right to use the IPR with respect to the Software concerned or modify the Software such that it no longer infringes the IPR or replace the Software. If this would be impossible for Siemens under reasonable conditions, You may rescind the contract or claim a reduction in remuneration pursuant to the applicable statutory provisions. (b) The above obligations of Siemens shall apply only if the You (i) immediately notify Siemens of any such claim asserted by the third party in written form, (ii) do not concede the existence of an infringement, (iii) do not accept or settle any claim, and (iv) leave all protective measures and negotiations to Siemens discretion. If You stop using the Software in order to reduce the damage or for other good reason, You shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued. (c) Claims of the You shall be excluded if You are responsible for the infringement of an IPR. Claims of You are also excluded if the infringement of the IPR is caused by a type of use not foreseeable by Siemens or by the Software being modified by the You or being used together with products not provided by Siemens. (d) Where other defects in title occur Section 6 shall apply accordingly. (e) Siemens liability to pay damages is governed by Section 8. Any other claims of You against Siemens or its agents or any such claims exceeding the claims provided for in this Section 7, based on a defect in title, are excluded. 8. Liability. (a) Unless otherwise stipulated in this Agreement, You shall have no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort. (b) The above shall not apply in the case of liability (i) under the German Product Liability Act ( Produkthaftungsgesetz ), (ii) due to intent, (iii) due to gross negligence on the part of owners, legal representatives or executives, (iv) due to bad faith, (v)due to culpable loss of life, bodily injury or damage to health and (vi)due to culpable breach of a condition which goes to the root of the contract ( wesentliche Vertragspflichten ). However, claims for damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by one of the above. (c) The above provision does not imply a change in the burden of proof to Your detriment. 9. Severability.

6 If any provision of this Agreement is found to be void or unenforceable, it will not affect the validity of any other provision of this Agreement and those provisions will remain valid and enforceable according to their terms. 10. Other Rights Reserved. All rights not specifically granted in this Agreement are reserved by SIEMENS. 11. Contact Information. Should You have any questions concerning this Agreement, You may contact. Siemens AG Dr. Sören Rieger Gleiwitzer Str Nuremberg SIEMENS End User License Agreement for commercial mobile applications (ios) V 1.0