END USER LICENSE AGREEMENT (EULA)
This is a legal agreement ("Agreement") between Customer, Henceforth referred to as ‘You’ and AVIC Software and Services CO.,LTD. Henceforth referred to as ‘AVIC’ , a company duly incorporated under the provisions of the Companies Act, Taiwan which provides the terms of Your use of the Analytics and BTP content which You are accessing that accompanies this Agreement (“Software”). If You are accessing Software on behalf of Your employer or as a consultant or agent of a third party (either "Your Company"), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Agreement and everywhere in this agreement that refers to You or Your, shall also include Your Company. By using the Software, You are agreeing to all of the terms and conditions stated in this Agreement. If You do not agree to these terms, do not use the Software. You must accept and abide by these terms and conditions as presented to you – Any changes, additions or deletions by you to these terms and conditions will not be accepted by AVIC and will not be part of this agreement.
This license authorizes You to use Analytics and BTP content Software as per the defined agreement.
Each user has to be an employee of You or a contractor employed by Your. Analytics and BTP content can be used productively within the one company code for which it is licensed for.
1. INTRODUCTION Once properly configured, the Software will enable You to use Your Device to access Analytics and BTP content Software as permitted by this EULA. Your use of the Software is subject to the terms referenced herein.
2. Software License: Subject to the terms, conditions and limitations stated in this Agreement, AVIC grants You a non-exclusive, non-transferable, non-sublicensable, revocable, limited use license to run the Software on a server machine, desktop, laptop, tablet, smart phone, or other Software appropriate computer device that You own or control (any, a “Computer”). You are not permitted to use the Software for any purpose other than as expressly permitted under this Agreement. AVIC may audit Your use of the Software by providing You with commercially reasonable advance notice of no less than ten (10) days. Any information shared with AVIC for the purpose of Software license audit will be kept confidential. This information may be shared only for legal, government purpose on need to know basis.
3. DATA COLLECTION AND PRIVACY The Software may collect information about Your use of the Software, including information You provide directly or through automated means, such as geolocation (only if You choose to share it), Software usage, timestamp, Device and OS identification, login credentials, and other information. AVIC may use this information for purposes such as identity management, security, auditing and service delivery.
4. Use of Software Tools: You may copy, reproduce and distribute the application programming interfaces (each, an “API”), templates, and sample code (“Tools”) to create new functional objects (“Add-ons”) that connect to and operate with the Software. You agree that the Add-ons will not: (a) unreasonably impair, degrade or reduce the performance or security of the Software; (b) enable the bypassing or circumventing of AVIC’s license restrictions and/or provide users with access to the Software to which such users are not licensed; (c) render or provide, without prior written consent from AVIC, any information concerning AVIC Software license terms, AVIC Software, or any other information related to AVIC products. In exchange for the right to develop Add-ons under this Agreement, You covenant not to assert any patent, copyright, trade secret or other intellectual property rights in Add-ons created by You against any AVIC product, service, or future AVIC development. Any code developed specifically for YOU will be YOUR property. However, AVIC shall be entitled to use in the normal course of its business and in providing same or similar services or development of similar deliverables for its other clients or enhancing its product suite, the general knowledge and experience gained and retained in the unaided human memory of its personnel in the performance or support of the usage of AVIC products. For the purposes of clarity, AVIC shall be free to provide any services or design any deliverable(s) or enhance AVIC products that perform functions same or similar to the Deliverables being provided for the Customer by AVIC or any other service providers, for any other client or Customer of AVIC (including without limitation any affiliate, competitor or potential competitor of the Customer). Nothing contained in this Section shall relieve either party of its confidentiality obligations with respect to the proprietary and Confidential Information or material of the other party.”
5. Intellectual Property: AVIC retains all ownership and intellectual property rights in the Software. You may not: a) remove or modify any marks or proprietary notices of AVIC, b) provide or make the Software available to any third party, c) use the Software to provide third party training other than the contractors employed for plant maintenance work for AVIC products, d) assign this Agreement or give or transfer the Software or an interest in them to another individual or entity, e) decompile, disassemble or reverse engineer (except to the extent permitted by applicable law) the Software or Tools, f) create derivative works of or based on the Software g) use any AVIC name, trademark or logo, or (h) use the Software or Tools to modify existing Software or other AVIC product functionality or to access the Software or other AVIC products’ source code or metadata (except creating custom code or processes as may be required).
6. DISCLAIMER OF WARRANTIES AND EXCLUSIVE REMEDIES:
to the extent not prohibited by law, AVIC hereby disclaims all express or implied representations, warranties, guarantees, and conditions of any kind, arising by law or otherwise, with regard to the Software, including but not limited to representations, warranties, guarantees, and conditions of merchantability, fitness for a particular purpose, title, non-infringement, and quality of service. AVIC makes no representations or warranties regarding the content, effectiveness, usefulness, reliability, availability, timeliness, quality, suitability, accuracy or completeness of the Software or the results you may obtain by using the Software or that the Software will be uninterrupted or error-free or that it is completely secure. without limiting the generality of the foregoing, AVIC does not represent or warrant that
(a) the operation or use of the Software will be timely, secure, uninterrupted or error-free; or (b) the quality of any products, services, information or other material you purchase or obtain through the Software will meet your requirements. you acknowledge that AVIC does not control the transfer of data over communications facilities, including the internet, and that the Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. AVIC is not responsible for any delays, delivery failures, or other damage resulting from such problems. except where expressly provided otherwise by AVIC, the Software is provided to you on an “as is” basis.
in the event of any failure of the Software to conform to any applicable warranty, you may notify AVIC and AVIC will refund the purchase price for the Software; and, to the maximum extent permitted by applicable law, AVIC shall have no warranty obligation whatsoever with respect to the Software and no obligation to address any of your claims or claims of any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
in no event shall AVIC be liable to you or any third party for any direct, indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, goodwill, business opportunity, revenue, data or data use, incurred by you or any third party, whether in an action in contract or tort or otherwise, arising from or related to the use of the Software or any data derived therefrom, even if AVIC had been advised of the possibility of such damages.
7. Indemnity: You will fully indemnify, hold harmless and defend AVIC against lawsuits based on any claim: (a) that any Add-on(s) created by You infringes any patent, copyright, trademark, trade secrets, or other proprietary rights of a third party, or (b) related to Your alleged violation of the terms of this Agreement.
If a third party makes a claim against You that Your use of the Software as provided in this Agreement infringes its intellectual property rights, AVIC, at its sole cost and expense, will defend You against the claim and indemnify You from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by AVIC, if You do the following:
• notify AVIC promptly in writing, not later than 30 days after You receive notice of the claim (or sooner if required by applicable law);
• give AVIC sole control of the defense and any settlement negotiations; and
• give AVIC the information, authority, and assistance it needs to defend against or settle the claim.
If AVIC believes or it is determined that the Software may have violated a third party’s intellectual property rights, AVIC may choose to either modify the Software to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, AVIC may end the license for, and require return of, the Software and refund any fees You may have paid for it. AVIC will not indemnify You if You alter the Software or use it outside the scope of use identified in the Software’s user documentation or if You use a version of the Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Software. AVIC will not indemnify You to the extent that an infringement claim is based upon any material not furnished by AVIC. AVIC will not indemnify You to the extent that an infringement claim is based upon the combination of the Software with any products or services not provided by AVIC
8. Export: The Software is subject to Indian export control regulations. You confirm that: a) You will not use the Software for, and will not allow the Software to be used for, any purposes prohibited by the Indian law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction; b) You are not located in any country to which India has prohibited export or that has been designated by the Indian Government as a "terrorist supporting" country; c) You are not a citizen, national or resident of, and are not under the control of a Country where export restrictions are set by the Govt. of India; d) You will not download or otherwise export or re-export the Software, directly or indirectly, to persons on the above-mentioned lists.
9. Support: AVIC does not offer support for the Software other than Analytics and BTP content – at its sole discretion - provision of updates, patches, bug fixes and new versions.
10. Term and Termination: You may terminate this Agreement by destroying all copies of the Software on Your Computer(s). AVIC shall be entitled to terminate Your license to use the Software if You fail to comply with any of the terms of this Agreement. In case of termination or expiration of this Agreement, You must destroy all copies of the Software immediately. Except as expressly set forth in the Server Product Agreement, the terms and conditions governing the Server Product Agreement are not affected by the termination of Your right to use the Software under this Agreement. The provisions of this Agreement that by their nature continue shall survive any expiration or termination of this Agreement.
11. Miscellaneous: This Agreement is the complete Agreement for the Software licensed (including reference to information/documentation contained in a URL). This Agreement supersedes all prior or contemporaneous agreements or representations with regards to the subject matter of this Agreement. If any term of this Agreement is found to be invalid or unenforceable, the surviving provisions shall remain effective. AVIC´s failure to enforce any right or provisions stipulated in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English.
12. Applicable Law and Jurisdiction: These Terms and Conditions and your use of this Software and its content will be governed by and construed in all respects in accordance with the laws of India subject to the jurisdictional courts of Bangalore.
13. Other Licenses You are responsible to be compliant with all necessary license requirements of other parties including OS, Database, ERP, SAP ECC, SAP S4HANA, SAP SAC, Document management system, Device management system etc for the usage of Analytics and BTP content.
14. RELATIONSHIP BETWEEN THE PARTIES The relationship between You and AVIC is that of licensee/licensor.