Securosys End-User License Agreement (EULA)

1 Introduction

This EULA applies to Securosys proprietary software products that are used in or used to access Securosys hardware products and services and that are hereby licensed to Licensee. Unless otherwise agreed in a written contract between Securosys and Licensee, Licensee explicitly accepts the following terms and conditions when the Licensed Material is installed or used for any purposes.

It is prohibited to install or use the Licensed Material in any manner if Licensee does not agree to the terms and conditions of this agreement.

1.1 Definitions

Licensee

Person, company or organization who is installing and / or using the Licensed Material.

Affiliate

Any entity, whether incorporated or not, which presently or in the future, directly or indirectly owns, is owned by, or is under common ownership with Licensee, by virtue of a controlling interest of 50% or more of the voting rights or the capital.

Licensed Material

Securosys proprietary software, firmware, and middleware and the corresponding documentation, associated media, documents on paper or electronically. For the purposes of this Agreement, the term "Licensed Material" also includes any updates or upgrades to the Licensed Material to which Licensee is entitled to, and which are made available to Licensee by Securosys. Securosys reserves the right to update and improve the Licensed Material without prior notice to Licensee.

Normal Use

"Normal Use" for the purpose of this Agreement shall mean the, in full or parts, downloading, saving, transferring, converting to suitable machine-readable program, executing and reproduction of programs in machine-readable form for the purposes of executing program instructions to process Licensee's data for term of the license granted, including temporarily producing the copies required for those activities in accordance with the respective user documentation.

Normal Use shall include Licensee's right to combine Licensed Material with other Material, including Material released under a “open source” license, if combined Material remains compliant with license grants of each Material combined, to produce combined solutions including Licensed Material for use within the License Grant.

Normal Use shall include the right to produce archival and backup copies. The use of such copies may not lead to an expansion of the scope of the right of use. Archival and backup copies shall also be identified as such.

Furthermore, Licensee shall be entitled to temporarily use the Licensed Material on a backup system in the event of the breakdown of the designated IT system.

“Normal Use” does not include any rights to alter, modify, reverse engineer, decompile, disassemble, the Licensed Material, or commercially exploit by rent, lease, sublicense the Licensed Material, unless such rights are explicitly granted.

Any use of the Licensed Material after expiration is prohibited, as is retaining functional copies thereof (except as legally required).

Defect

A defect in the Licensed Material shall mean that the Licensed Material, despite being used in compliance with Normal Use, deviates from the agreed and stated functionality and performance to an extent that abolishes or materially impairs its fitness for the stated use.

2 License Grant

Subject to the terms and conditions of this Agreement, and upon full payment of the applicable license fees and acceptance of these terms by Licensee when the Licensed Material is installed and / or used, Securosys grants to Licensee and Licensee’s Affiliates a personal, non-transferable, non-exclusive, limited license to use the Licensed Material in executable form only for the purpose of Normal Use.

Depending on the purchased license and the licensing model Licensee has the right to “Normal Use” the Licensed Material solely for use with Securosys hardware and service products for which Licensee has paid the license fee, if such is owed.

2.1 Expiration of Usage Rights

Upon expiration of the usage rights the Licensed Material must be immediately uninstalled and all copies deleted. Upon Securosys’ request, Licensee shall confirm to Securosys that the Licensed Material has been permanently deleted. Licensee may archive the Licensed Material if statutory provisions oblige Licensee to do so.

The rights to use the Licensed Material expires without further notice if:

The agreed license fee remains unpaid for more than 120 days after the due date of the invoice
The subscription has been terminated by either Securosys or Licensee

or
The evaluation period has expired

2.2 Ownership and Property Rights

Licensee shall be entitled only to the rights to use the Licensed Material that are expressly granted under this Agreement. All other rights, particularly proprietary rights, including, but not limited to, intellectual property rights, copyrights, industrial property rights to the Licensed Material, and all usage rights not expressly granted shall remain the property of Securosys or the owner of the property rights to the Licensed Material.

Any property rights, including, but not limited to, intellectual property rights, copyrights, industrial property rights arising of services provided as part of Maintenance and Support shall belong to Securosys; Licensee shall be entitled to use them in accordance with this Agreement.

2.3 Acceptance of the Licensed Material

Licensee shall conduct a prompt acceptance test of the delivered or available Licensed Material. Should the acceptance test reveal defects that do not render the functionality and/or proper use of the Licensed Material impossible or unreasonably difficult, Licensee shall issue the respective acceptance. Securosys agrees to reasonably remedy defects in due time, as commercially reasonable, but no later than within the warranty period set out in Section 4.1. If such remedy of defects is not issued by Securosys, and Material is not accepted, the Licensees sole remedy is to terminate the license contract at refund of the paid fees, without claiming additional compensation for any reason, including for lost interest or other damages, directly or indirectly or consequently.

The acceptance shall be deemed issued if Licensee does not accept the Licensed Material within 30 (thirty) days of their delivery or availability in writing, or if Licensee commences productive use of the Licensed Material.

2.4 Delivery

The delivery of the license shall occur at Securosys’ option by making it available electronically for download or delivering it on a data medium. The Licensed Material shall be delivered in its most recent version released for sale by Securosys.

2.5 License Key

Depending on the Licensed Material a license key may be required to activate the Licensed Material. A license key may be issued for, but not limited to, i.) a licensing period, ii.) a number of users, servers, applications or Securosys hardware products or iii.) certain features. In case of Software License subscriptions or test and evaluation licenses, the license keys are automatically deactivated at the end of the licensing period. Licensees with obligations to archive the Licensed Material need to do so before the end of the licensing period.

2.6 Post-License Obligations and Enforcement

Securosys reserves monitoring rights like authorization for technical verification of license compliance, automatic reporting of license status to Securosys, and the remote deactivation capability in case of license violation. Consequences of non-compliance include

First Notice: 7-day grace period with daily penalty fees (CHF 500/day)
Second Notice: Immediate suspension of all Securosys services
Legal Action Damages claim and preliminary injunction

3 Warranty of Title

3.1 Content

Securosys represents that Securosys have developed the Licensed Material themselves and owns the applicable industrial property rights, particularly the copyrights.

3.2 Obligation to Defend

Should third parties exercise claims against Licensee for infringement of their alleged intellectual property rights concerning the use of the Licensed Material by Licensee in accordance with this Agreement, Licensee shall immediately inform Securosys in writing of such claims, shall authorize it to conduct the defense, including reaching a settlement, and shall reasonably support Securosys in its efforts. In such a case, Securosys shall assume the defense at its own expense and shall indemnify Licensee for any costs and damages finally awarded by a court of law. Licensee is not entitled to any other claims in the event of an infringement of intellectual property rights and any further warranty is excluded.

3.3 Preventive Measures

If it emerges that, in the view of Securosys, the Licensed Material does or could infringe the intellectual property rights of third parties, Securosys shall at its choice either i.) perform modifications at its own expense in order to eliminate the potential infringement of intellectual property rights, ii.) commence negotiations to acquire the respective rights from the authorized third party or iii.) be entitled to take back the Licensed Material. In such a case, Licensee shall solely have the right to a refund of the license fees that it has paid, subject to a deduction of an appropriate fee for their interim use.

3.4 Release

Securosys shall be released from the aforementioned obligations if an intellectual property right claim arises on the basis that Licensee has changed the Licensed Material, has used them in conjunction with other programs or under usage and operating conditions other than set out in this Agreement.

3.5 Open Source

The Licensed Material may include open-source software components pursuant to the provisions of the applicable open-source license terms. Licensee’s right to use such components, the respective obligations and other terms associated with the use are determined exclusively and conclusively according to the applicable open-source license.

The open-source software is provided "AS IS," without any warranty or liability or fitness for any purpose. Securosys explicitly excludes any warranty or liability arising in connection with open-source components according to section 5.3. Licensee agrees that all open-source software shall be and shall remain subject to the terms and conditions under which it is provided. Copyrights to the open-source software are held by the copyright holders indicated in the respective copyright notices.

Upon Licensees request, if not already provided in Licensed Material for technical reasons, Securosys provides the list of open-source software components which have been integrated in the Licensed Material.

4 Warranty of Quality

4.1 Warranty of Program Functionality

Securosys warrants the operability of the initial delivered Licensed Material under this Agreement.

If a Defect has been properly reported by Licensee and acknowledged by Securosys, Securosys shall use commercially reasonable efforts to provide a correction or workaround for such defect in the latest, unaltered version of the Licensed Material, provided that the defect has been properly documented and reported to Securosys within the warranty period of 6 (six) months of the date of acceptance set out in section 2.3. Securosys does not warrant that any defect will be fully corrected.

The right to a reduction of fees or substitute performance as well as any further warranties are expressly excluded.

4.2 Limitation of Warranty

Securosys cannot warrant that the Licensed Material can be used without interruptions and errors in all of Licensee's intended combinations with all data, IT systems, workflow processes or other programs. Securosys does not give a warranty for the suitability of the Licensed Material for a specific purpose or for its economic efficiency.

4.3 Exclusion of Warranty

Securosys shall be released from its warranty obligations to the extent that a defect is caused by circumstances that are not attributable to it, such as:

Changes in the usage and operating conditions described in the respective manuals
Changes made to the Licensed Material by Licensee or third parties
Impacts by systems or programs not licensed by Securosys

Should a defect be attributable to Licensee, for example, if a user error occurred or if additional efforts are incurred due to Licensee having failed to fulfill its obligation of cooperating with and providing adequate documentation to Securosys, Securosys is entitled to invoice Licensee on a time and material basis for the actual costs incurred by services to remedy the defect.

5 Liability

5.1 Scope

The liability of Securosys for direct damages incurred by Licensee resulting from or in connection with the fulfillment of this Agreement, irrespective of its legal basis (such as default, non or incorrect performance, breach of duty, warranty, etc.), shall be limited to:

The one-off license fee in case of a perpetual software license, independent of whether a maintenance contract is in place or not;
The one-off annual subscription fee in case of a software license subscription.

This limitation shall not apply to any liability for culpably caused personal injuries/bodily harm and the consequences set out in Section 3. for intellectual property rights indemnification.

5.2 Force Majeure

Securosys shall not be held liable if it is prevented from performing the services set out in this Agreement in a timely and appropriate manner due to reasons beyond its control. The deadlines for performing such services shall be extended based on the duration of the impact of the circumstances that are beyond Securosys’ control.

5.3 Exclusion

Any further liability of Securosys is excluded, including, but not limited to, any liability of Securosys resulting from the use of the Licensed Material, for the results of such use, loss of data and indirect or consequential damages, such as loss of profits, loss or interruptions of business, non-realized savings, additional efforts and expenses by Licensee or third party claims, shall be excluded.

6 Control and Security of the Licensed Material

Licensee shall recognize the ownership, the copyrights and the industrial property rights of Securosys of such rights to the Licensed Material, abstain from committing any offence against the existence and extent of these rights for the duration of the license granted to it, take every action in accordance with the instructions of Securosys to protect the rights of Securosys of such rights to the Licensed Material, and provide Securosys with reasonable support, upon request of Securosys, at Securosys’ cost, to defend the industrial property rights. Licensee shall in particular apply or leave the proprietary notice of Securosys on all full or partial copies of the Licensed Material.

Licensee shall take the organizational and technical measures within its business which are required to protect the Licensed Material from unintentional disclosure or access, theft or misuse by unauthorized parties. In particular, Licensee shall delete all parts of the Licensed Material stored on computer systems or storage media prior to their transfer and/or destruction.

7 Test and Evaluation Licenses

The terms and conditions of this Agreement also apply for the use of the Licensed Material for test- and evaluation purposes considering the following modifications and conditions:

1. The Licensed Material is provided “as is”, and Licensee understands that it assumes all risks of its use, quality, and performance. Licensee agrees and acknowledges that the assignment of test- and evaluation licenses is subject to the prior consent of Securosys expressed in writing or by e-mail;
2. Any and all liabilities of Securosys are excluded, including, but not limited to, intellectual property rights, loss of data, direct, indirect or consequential damages, such as loss of profits, loss or interruptions of business, non-realized savings, additional efforts and expenses by Licensee or third-party claims. Licensee agrees and acknowledges that Securosys shall have no liabilities whatsoever to Licensee;
3. Any and all warranties of Securosys are excluded. Licensee agrees and acknowledges that Securosys shall have no responsibilities whatsoever to Licensee, including, but not limited to, correct any defects or problems in the Licensed Material, or to assure that the Licensed Material operates properly;
4. Evaluation licenses are granted free of charge and for a limited period of 60 (sixty) days. Upon request of Licensee, Securosys may extend the evaluation period for a longer period.

8 Miscellaneous

8.1 Reference

Securosys can indicate the name of Licensee as reference. The range of any further reference indications will be agreed between the parties by e-mail or in writing.

8.2 Export Control

Licensee is aware that the export of the Licensed Material may be subject to export control and Licensee shall comply with the respective provisions.

9 Final Provisions

9.1 Severability

If individual provisions or parts of this Agreement prove to be void or ineffective, the validity of the remaining parts of the Agreement shall not be affected. In such a case, the parties shall amend the Agreement in such way that the purpose of the void or ineffective part is achieved as best as possible.

9.2 Applicable Law

This Agreement shall be governed by Swiss law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

9.3 Place of Jurisdiction

If the contracting parties fail to resolve differences amicably despite respective efforts, the competent court at the domicile of Securosys shall have exclusive jurisdiction over any disputes arising from or in connection with this Agreement. Securosys however reserves its right to bring an action against Licensee at Licensee's domicile.