End-User License Agreement WIP

End-User License Agreement WIP 2018-08-10T09:51:45+00:00

This End-User License Agreement (this “Agreement”) is a legal agreement between Mirrakoi SA (“Mirrakoi”), a corporation registered in Switzerland (under UID CHE-361.911.808, address: EPFL Innovation Park, Building C, 1015 Lausanne, Switzerland), and the “Licensee”, a legal entity or natural person licensing the Software pursuant to this Agreement.

RECITALS

Mirrakoi provides a software application known as Xirus WIP (Work-in-Progress Package) for Rhino 5 (64 bit) for Windows (the “Software”), which may include associated media, printed materials, and “online” or electronic documentation.

BY SELECTING THE “I ACCEPT” BUTTON OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS AND CONDITIONS OF AN ELECTRONIC COPY OF THIS AGREEMENT, LICENSEE AGREES TO BE COMPLETELY AND UNCONDITIONALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW, THEN LICENSEE MAY NOT ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE SOFTWARE.

TERMS AND CONDITIONS

  1. DEFINITIONS. The words “Mirrakoi”, “Agreement”, “Licensee”, “Software” and other capitalized terms used in this Agreement are defined terms. They shall have the following meanings whenever used in this Agreement.
    • “Device” means a single electronic device, with one or more central processing units (CPUs), or a software implementation of such a device (virtual machine) used by Licensee for running the Software.
    • Documentation” means any printed or online documentation related to the Software.
    • “Effective Date” means the first date Licensee accepts the terms and conditions of this Agreement whether by selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement.
    • “Install” or “Installation” means placing the Software on a computer’s hard disk, CD-ROM or other secondary storage device.
    • “License” means the rights granted to Licensee under this Agreement.
    • “License Certificate” means an electronic evidence of the License provided to Licensee.
    • “License Key” means a unique series of letters and digits communicated to the Licensee in the License Certificate, enabling the Software to run on the number of Devices indicated on the License Certificate. Only Mirrakoi and its representatives are permitted to produce License Keys for the Software.
    • “License Key Activation” means the process of assigning the License Key to the Licensee.
    • “Major Release” refers to any new version of the Software Mirrakoi releases (as its sole discretion) with a new version number to the left of the version decimal point.
    • “Minor Upgrade” refers to any new version of the Software which is not a “Major Release”.
    • “Parties” Mirrakoi and Licensee as a legal entity or natural person.
    • “Permitted Number of Devices” means the maximum number of Devices associated to the License. In the case of the present Agreement, the Permitted Number of Devices is 5.
    • Specifications” means Mirrakoi’s standard specifications for the Software set forth in its then-current Documentation and at https://mirrakoi.com/xirus-for-rhino/ .
    • Term” is defined in Section 11.1 below.
    • Upgrade” means a new release version of the Software, in object code format.
  1. LICENSE & DELIVERY.
    1. License. Mirrakoi hereby grants Licensee a non-assignable, non-exclusive, non-sublicensable, non-transferable, limited license to install and use the Software on a Permitted Number of Devices during the Term, provided Licensee complies with the restrictions set forth in Section 2.2 below.
    2. Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy or of the Software itself. Furthermore, Licensee receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Licensee shall not: (a) modify, create derivative works from, distribute, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code; (d) circumvent the copy protection technology that may be included in the Software; or (e) use the Software in any way that violates any applicable federal, state, local, or international law or regulation.
    3. Documentation. Licensee may reproduce the Documentation as reasonably necessary to support internal use of the Software.
    4. Delivery. Mirrakoi shall provide the Software to Licensee, through a reasonable system of electronic download.
  1. MAINTENANCE.
    1. Provision of Maintenance. Mirrakoi has no obligation to provide support, maintenance, upgrades, modifications or new releases for the Software or any related documentation under this Agreement.
    2. Upgrades. Mirrakoi has the right to deliver Minor Upgrades to Licensee promptly after release, and such Minor Upgrades will then become part of the Licensed Product.
  1. FEES & REIMBURSEMENT.
    1. Fees. Licensee is granted the right to install and use the Software for free during a limited period of time defined in Section 11.1 below.
  1. IP & FEEDBACK.
    1. IP Rights in the Software. All rights, title, interest, and copyrights in and to the Documentation, Software (including any enhancements or modifications), and any copies thereof, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information are protected by all applicable copyright laws and international treaties. Therefore, Licensee is required to treat Software like any other copyrighted material, except as otherwise provided for in this Agreement.
    2. Trademark. Licensee acknowledges that Mirrakoi® is a trademark which is owned exclusively by Mirrakoi and that the License does not grant Licensee any right in this trademark. Licensee acknowledges that Xirus® is a trademark which is owned exclusively by Mirrakoi and that the License does not grant Licensee any right in this trademark.
    3. Feedback. Licensee hereby grants Mirrakoi a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Licensee communicates to Mirrakoi during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Mirrakoi’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Licensee’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Mirrakoi’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)
  1. CONFIDENTIAL INFORMATION.
    1. Confidential Information Defined. “Confidential Information” refers to the following Mirrakoi discloses to Licensee: (a) any document Mirrakoi marks “Confidential”; (b) any information Mirrakoi orally designates as “Confidential” at the time of disclosure, provided Mirrakoi confirms such designation in writing within 30 business days; (c) the non-public features and functions of the Software; and (d) any other nonpublic, sensitive information Licensee should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Licensee’s possession at the time of disclosure; (ii) is independently developed by Licensee without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Licensee’s improper action or inaction; or (iv) is approved for release in writing by Mirrakoi. Licensee is on notice that the Confidential Information may include Mirrakoi’s valuable trade secrets.
    2. Nondisclosure. Licensee shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Licensee: (a) shall not disclose Confidential Information to any employee or contractor of Licensee unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Licensee with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without Mirrakoi’s prior written consent. Without limiting the generality of the foregoing, Licensee shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Licensee shall promptly notify Mirrakoi of any misuse or misappropriation of Confidential Information that comes to Licensee’s attention. Notwithstanding the foregoing, Licensee may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Licensee shall give Mirrakoi prompt notice of any such legal or governmental demand and reasonably cooperate with Mirrakoi in any effort to seek a protective order.
    3. Injunction. Licensee agrees that breach of this Article 6 would cause Mirrakoi irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Mirrakoi will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
    4. Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Mirrakoi or certify, in writing, the destruction thereof.
    5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Mirrakoi will retain all right, title, and interest in and to all Confidential Information.
  1. SOFTWARE AUDIT.
    1. Audit. During the Term of this Agreement, Mirrakoi may audit Licensee’s use of Licensed Software on 30 days’ advance written notice. Licensee shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Licensed Software. Such audit shall not unreasonably interfere with Licensee’s business activities. Mirrakoi may not conduct an audit more than once per year.
    2. Unauthorized Use. If Mirrakoi discovers unauthorized use, reproduction, distribution, or other exploitation of Licensed Software, Licensee shall reimburse Mirrakoi for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Mirrakoi may have.
  1. SOURCE CODE ESCROW.
    1. Escrow Agreement. Mirrakoi has no duty or obligation to make such source code available to any escrow agent or other third party.
  1. WARRANTY DISCLAIMERS.
    1. LICENSEE ACCEPTS THE SERVICE “AS IS”, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
    2. Mirrakoi does not warrant that the Software will perform without error or that it will run without immaterial interruption. Mirrakoi provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Mirrakoi; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.
    3. MIRRAKOI PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD PARTY COMPONENTS, AND MIRRAKOI WILL NOT BE RELIABLE FOR ANY FAILURE OF ANY THIRD PARTY COMPONENT TO FUNCTION AS EXPECTED OR INTENDED.
  1. LIMITATIONS OF LIABILITY.
    1. Limitation on Type & Amount of Liability. IN NO EVENT WILL MIRRAKOI BE LIABLE TO LICENSEE (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY) ARISING OUT OF OR RELATED TO THIS AGREEMENT.
    2. Application of & Basis for Limitations. THE LIABILITIES LIMITED BY THIS ARTICLE 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND (a) REGARDLESS OF THE THEORY OF LIABILITY; (b) REGARDLESS OF LIABILITY FOR NEGLIGENCE; (c) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (d) EVEN IF MIRRAKOI IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (e) EVEN IF LICENSEE’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Mirrakoi’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Mirrakoi’s liability limits and other rights set forth in this Article 10 apply likewise to Mirrakoi’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
  1. TERM & TERMINATION.
    1. Term. This Agreement will remain in effect till 15 June 2018, from the Effective Date (the “Term”).
    2. Effects of Termination. Upon termination of this Agreement, Licensee shall cease all use of the Software. The following provisions will survive termination or expiration of this Agreement: (a) Articles and Sections 2.2 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), 7 (Software Audit), 9 (Warranty Disclaimers), and 10 (Limitations of Liability); and (b) any other provision of this Agreement that must survive to fulfill its essential purpose.
  1. MISCELLANEOUS.
    1. Force Majeure. No delay, failure, or default will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    2. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    3. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
    4. Technology Export. Licensee shall not: (a) permit any third party to access or use the Software in violation of any Swiss law or regulation; or (b) export the Software or otherwise remove it from Switzerland except in compliance with all applicable Swiss laws and regulations. Without limiting the generality of the foregoing, Licensee shall not permit any third party to access or use the Software in, or export it to, a country subject to a Swiss embargo.
    5. Governing Law & Jurisdiction. This Agreement will be governed solely by the substantive laws of Switzerland, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; or (b) other international laws. The parties consent to the personal and exclusive jurisdiction of the ordinary courts of Lausanne, Switzerland, an appeal to the Swiss Federal Tribunal being reserved.
    6. Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to this Agreement, and any dispute proceeding related to or arising hereunder, shall be in the English language. If there is a discrepancy between any translation of this Agreement and this Agreement, this Agreement shall prevail.

For any questions related to this Agreement, please contact Mirrakoi at:

Mirrakoi SA, EPFL Innovation Park, Building C, 1015 Lausanne, Switzerland

e-mail: support@mirrakoi.com

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