WebAccess/DMP EULA

END USER LICENSE AGREEMENT FOR ADVANTECH SOFTWARE

1. PREAMBLE

1.1 This End User License Agreement (hereinafter “EULA”) is a legally binding document specifying the legal relationship between the company Advantech Czech s.r.o., identification number 24148661, with its registered offices at Sokolská 71, Kerhartice, 562 04 Ústí nad Orlicí, registered with Regional Court of Hradec Králové, section C, record 31061 (hereinafter “Advantech”, “Us” or “We”) and you (either individual or entity) (hereinafter “You”).

1.2 BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY DOWNLOADING, INSTALLING, ACTIVATING, LOGGING IN OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS OF THIS EULA. PLEASE ENSURE THAT YOU HAVE CAREFULLY READ AND PROPERLY UNDERSTOOD THE ENTIRE EULA BEFORE AGREEING TO ITS TERMS AND CONDITIONS.

1.3 The “Parties” shall refer to the parties of this EULA, i.e. You and Us.

1.4 The “Software” shall mean Our WebAccess/DMP software which has the functionalities described in Our documentation available at https://docs.wadmp.com (opens new window). The Software does not include Non-covered Tools provided under Clause 4.

1.5 The “Authorization” shall mean the binding terms and conditions for Your use of the Software. The Authorization is described in Clause 2.

1.6 A “Consumer” is any natural person who is acting for purposes which are outside the scope of his or her trade, business, craft or profession.

2. AUTHORIZATION GRANT

2.1 Subject to the terms and conditions of this EULA and all applicable laws and regulation, We hereby grant You the access and limited, non-exclusive Authorization to use the Software in the Software as a Service regime, i.e. cloud version of the Software for its intended purpose and solely in accordance with the user manuals and written instructions provided by Us. The Software runs on infrastructure of a third party and You shall use its its functionalities online.

2.2. The Authorization is quantitatively limited. Unless we agree otherwise, You can only allow access to the same workplace of the Software (company) to 5 user accounts. Each user account can be used only one person; the actual number of persons may not exceed the quantitative limit.

2.3 You may use the Software only for Your internal needs. You may use the Software through Your employees and members of the company's bodies. You may not use it in a manner that could constitute a competition towards Us or in a manner that could harm Us in any way.

2.4 You may not disclose access data or allow access to the Software to third parties. You shall ensure that all Your employees and members of the company’s bodies are familiar with this EULA before they start using the Software. You are responsible for any breach of this EULA caused by a person to whom You have made the Software available or who uses the Software via your access data.

2.5 You may not:

a) use the Software to engage in any discriminatory, fraudulent or illegal activity, activity that violates the rights of others, disrespects their dignity, or harasses them, or any other activity inappropriate to the purpose of the Software;

b) breach the security measures of the Software, launch a cyber-attack, insert malware (computer viruses, ransomware, Trojan horses, etc.), malicious content or code to the Software or attempt to do so;

c) attempt to gain access to any part of the Software to which You have not been granted access;

d) overload the Software with automated use.

2.6 The Software is only available for online use. We will not provide You with any source, machine or object code for the Software. You may not obtain them or attempt to obtain them in any way, decompile, disassemble or reverse engineer the Software. You may not modify, distribute, prepare derivative works of, or grant sublicenses to use the Software.

2.7 You are not obliged to use the Software. We are entitled to monitor and control the number of users who log in to the Software.

2.8 We retain all additional rights to the Software outside of the scope of the Authorization. Unless allowed by applicable law, You may not use the Software in any other way than provided in this Clause 2.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 The Software contains copyright protected material, trade secrets and other proprietary information and material of Advantech and/or its licensor(s), if any, and is protected by copyright laws, international copyright treaties and trade secret laws, as well as other intellectual property laws and treaties.

3.2 You agree that You will not mortgage, pledge or encumber the Software in any way. Advantech and/or its licensors retain all title and ownership in and to the proprietary rights pertaining to the Software, including all intellectual property rights, and copies thereof. This EULA does explicitly not grant permission to use the company name, trade names, trademarks, service marks or product names of Advantech, except as required for reasonable and customary use in describing the origin of the Software.

3.3 Under the terms of this EULA, You are not granted a license to use the Software as a copyrighted work, You are only authorized to use the Software as a service. No trademark and/or patent license and nothing in this EULA shall be interpreted in a way it does so.

4. THIRD PARTY LICENSE TERMS

4.1 The Software may contain software, software components or technology developed by third parties (“Third-Party Components”). The scope of this Authorization shall not include any Third-Party Components, unless such Third-Party Components are deemed to be an inseparable part of the Software. This agreement does not limit, supersede or modify Your rights under the license associated with any separately licensed Third-Party Component.

4.2 Certain third-party software or technology (collectively the “Non-covered Tools”) may be bundled with or included on the same medium or as part of the Software You receive, but is not part of the Software. This agreement does not limit, supersede or modify Your rights under the license associated with any Non-covered Tool.

4.3 For Third-Party Components and Non-covered Tools, other licenses or additional terms might be applicable and governing Your use of such Third-Party Components and Non-covered Tools. Certain licenses and copyright notices applicable to third party software statically or dynamically linked to or contained in the Software or in other way included or distributed with the Software are listed in documentation and/or user interface and/or other materials provided with the Software and You are obliged to read and make Yourself fully acquainted with such licenses and copyright notices. The documentation is available at https://docs.wadmp.com (opens new window). By accepting this EULA, You are also accepting such additional terms and conditions, if any.

4.4 Source code offer under the terms of GNU GPL. Should the Non-covered Tools contain any part that is governed by the terms of GNU Affero GPL v3, GNU Lesser GPL v2.1, GNU Lesser GPL v3, GNU GPL v2, or GNU GPL v3 (hereinafter “GNU GPL”), We hereby make You an offer, valid for three years or as long as We, at Our sole discretion, offer customer support for the Software, to provide You either (1) a copy of the Corresponding Source within the meaning of GNU GPL for all the Non-covered Tools, on a durable physical medium customarily used for software interchange, for a price no more than Our reasonable cost of physically performing this conveying of source, or (2) access to copy of the Corresponding Source within the meaning of GNU GPL from a network server at no charge, depending on Our preference at the time of Your request.

5. UPDATES AND UPGRADES

5.1 Advantech may modify (including, without limitation, by limiting or discontinuing certain features of the Software), push updates to, or discontinue the Software at its discretion and without advance notice at any time.

5.2 Updates may fundamentally change the way the Software works. You are hereby accepting such future changes and waiving Your right to terminate this EULA for such reason.We will have no liability whatsoever on account of any change to the Software or any suspension or termination of your access to or use of the Software.

6. TERM AND TERMINATION OF THE AUTHORIZATION

6.1 This EULA and the Authorization shall be in effect and valid as long as Your use of the Software complies with the terms of this EULA, and as long as the Software remains operational.

6.2 Advantech may terminate this EULA (including the Authorization) if You materially breach Your obligations subject to the terms and conditions of this EULA or other applicable laws and regulation. Advantech may also terminate this EULA if You are in bankruptcy, bankruptcy declaration is issued in insolvency proceeding against You or if You enter into liquidation.

6.2 Your rights under this EULA will terminate automatically without notice from Advantech if You fail to comply with any term(s) of this EULA. Upon the termination of this EULA, You shall cease all use of the Software and destroy all copies You may hold, full or partial, of the Software.

7. TRANSFER OF THE AUTHORIZATION

7.1 You may not transfer the Authorization You have been granted.

8. DISCLAIMER

8.1 THE SOFTWARE IS DELIVERED “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED SOLELY BY YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADVANTECH DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE WITH RESPECT TO THE SOFTWARE. ADVANTECH DOES NOT WARRANT THAT THE  OPERATION OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ADVANTECH OR AN  ADVANTECH AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS EULA.

8.2 Unless explicitly agreed in writing between the Parties, the Software is provided without any additional services, and no support or maintenance of the Software is guaranteed, and if available, may be subject to additional charges and conditions.

8.3 We do not provide You with the equipment to use the Software. You are responsible for all fees charged by third parties to access and use the Software (e.g., charges by mobile carriers).

9. LIMITATION OF LIABILITY

9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ADVANTECH BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, ECONOMIC, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATED TO THE SOFTWARE, INCLUDING THE SALE, PURCHASE, DELIVERY, USE OR OTHER DISPOSITION OF THE SOFTWARE, EVEN IF ADVANTECH HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED. SUCH LIMITATION ON DAMAGES INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR IMPAIRMENT OF OTHER GOODS. ADVANTECH’S TOTAL LIABILITY WITH THE SALE, PURCHASE, DELIVERY AND USE OF THE SOFTWARE SHALL NOT EXCEED THE PRICE PAID FOR THE SOFTWARE. IN NO EVENT WILL ADVANTECH BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES. THIS LIMITATION OF  LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS EULA.

10. GENERAL PROVISIONS

10.1 The Authorization is effective from the moment of execution of this EULA as of Clause 1.2.

10.2 The Software is not intended for Consumers. If You are a Consumer, You may not enter into this EULA.

10.3 This EULA is the entire agreement between You and Us relating to the Software. This EULA supersedes all prior communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. Separate agreements may, however, be concluded with regard to the price for the use of the Software, quantitative and other limitation of the use of the Software.

10.4 Advantech is entitled to change this EULA following a change in the relevant legislation, a change in its business strategy or in order to improve the quality of the Software. We shall notify You of the amended EULA via the e-mail. We shall also make the full text of the amended EULA available at https://www.wadmp.com (opens new window). You are obliged to familiarize Yourself with the amended EULA. If You do not not expressly disagree with the amended EULA no later than on the last day before the proposed effective date and continue to use the Software, the new version of the EULA shall become legally binding on You, effective from the date specified in the relevant amendment to the EULA. In the event that You do not agree with the amended EULA, You shall have the right to terminate the contract with one month's notice.

10.5 If any provision of this EULA is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this EULA and the remaining provisions will remain in full force and effect.

10.6 The provisions of Clauses 8, 9, 10.5 - 10.9 shall survive any expiration or termination of this EULA.

10.7 This EULA and all rights and obligations arising on the basis of the EULA and in connection with it are governed by the laws of the Czech Republic with the exclusion of both the rules on the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.8 The Parties undertake to make every effort to eliminate any disputes arising on the basis of this EULA or in connection with this EULA, and to resolve them, first of all, through negotiations between contact persons or authorized representatives.

10.9 For the resolution of all disputes arising from this EULA and legal relationships involved shall be under sole jurisdiction of the courts of the Czech Republic.

Effective from 1st of March 2020