KI-WI DIGITAL END USER LICENSE AGREEMENT
BY CLICKING ON THE “I AGREE” BUTTON OR DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT ITS USE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT WHICH SHALL ALSO INCLUDE TERMS AND CONDITIONS OF KI-WI DIGITAL S.R.O. (“T&C”) AND ALSO SERVICE TERMS OF KI-WI DIGITAL S.R.O. (“Agreement”). Any such use will constitute an acceptance hereof and shall result in a binding and legally enforceable agreement between you (“Licensee”) and Ki-Wi Digital (“Ki-Wi Digital”). If you are accepting these terms on behalf of any corporation, partnership or other entity, you represent and warrant that you are authorized to legally bind such entity to the Agreement. Capitalized terms not defined in this EULA shall have the meaning as defined by the T&C.
- License Grant. Subject to the terms and condition of the Agreement, Ki-Wi Digital hereby grants the Licensee a non-exclusive, non-transferrable, non-sublicensable license for personal / internal use, permitting Licensee to download, install and use the release of the Ki-Wi Digital software, in object code form, provided or made available to Licensee, as well as upgrades, patches, and updates and related services thereto that Ki-Wi Digital elects to make available at no additional charge to all of its customers (“Software”) solely for Licensee’s internal business operations (“License”).
- Scope of License. The License level is determined based on the specification of functionalities available to the Licensee based on the current price list and the provided documentation.
- Use by Authorized Users. Licensee may allow an employee or independent contractor of the Licensee who has been authorized by Licensee to use the Software in accordance with the Agreement (“Authorized User”) to use the Software solely on Licensee’s behalf for Licensee’s internal operations. Licensee shall be responsible for Authorized Users to comply with the terms of the Agreement. Licensee is liable for any breach of the same by such Authorized Users.
- Term. The Software is a fully managed, licensed solution licensed for a period of 1 year (regardless of the agreed payment schedule) following its delivery, i.e., upon an activation of the license on the Software server, unless otherwise agreed. The term of the license (Contract Period) shall automatically extend for another period of 1 year, even repeatedly, unless you inform Ki-Wi Digital otherwise at least 1 month before the current license term expiration date.
- License Restrictions. Except as expressly permitted by Ki-Wi Digital, Licensee shall not, nor will it permit or authorize anyone to:
- distribute, convey, lend, lease, share, sell, transfer, market, sublicense, rent or otherwise make available any component of the Software;
- copy, disassemble, decompile, or reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Software, or modify, adapt, translate or create derivative works based upon the Software except as expressly authorized by the mandatory provisions of applicable law;
- use, offer or otherwise exploit the Software as an income-generating or commercial product or service to or for any third-party, including particularly outsourcing, hosting, application service provider, or software as a service (SaaS) functionality;
- use the Software for purposes of developing a product that is competitive with any Ki-Wi Digital product or service;
- remove any copyright, trademark, or other proprietary notice from the Software; or alter or circumvent any Software restrictions or limitations on Software access or use.
- Rights to Software. The Software provided hereunder is licensed, not sold. Ki-Wi Digital, and their respective suppliers or licensors reserve and retain all rights to the Software.
- Feedback. If the Licensee provides Ki-Wi Digital with suggestions regarding any Ki-Wi Digital products or services, the Licensee agrees that Ki-Wi Digital may use any ideas and suggestions for any purpose, including, without limitation, developing, improving and marketing products and services, without any liability or payment of any kind to the Licensee.
II.Warranties and disclaimers
- Warranty. Ki-Wi Digital warrants that the Software delivered under the Agreement will, for a period of 30 days its delivery, operate substantially in conformity with its specification. The Licensee is deemed to have accepted the Software on its delivery. The Licensee must assert any claim for breach of this warranty within the warranty period (see above). The Licensee's exclusive remedy and Ki-Wi Digital’s sole liability regarding any breach of this warranty will be, at Ki-Wi Digital's option and expense, to repair or replace the non-conforming Software. Unless expressly agreed with Ki-Wi Digital, Ki-Wi Digital does not provide any support, maintenance or consultancy services to the Licensee.
- No Liability. Ki-Wi Digital will have no liability for any warranty claim, or any obligation to correct any defect or problem with the Software, to the extent that it arises out of: (i) any use of the Software not in accordance with Ki-Wi Digital’s instructions; (ii) any unauthorized modification or alteration of the Software; or (iii) any use of the Software in combination with any third-party software or hardware which was not consulted with Ki-Wi Digital and not approved by it; a list of approved hardware / software is available at docs.kiwisignage.com.
- Disclaimer. Except as expressly set forth in sections 2.1 and 2.2, all licensed software and other products, information and materials provided by Ki-Wi Digital are provided "as is." Ki-Wi Digital makes no warranties with respect to the Software or any other subject matter of the Agreement and hereby disclaims all other warranties, whether express, implied or statutory, including, but not limited to warranties of title, non-infringement, merchantability, satisfactory quality, fitness for a particular purpose (even if Ki-Wi Digital has been informed of such purpose), interoperability with any specific hardware, and all warranties arising from course of dealing, usage, or trade practice. without limiting the foregoing, Ki-Wi Digital makes no warranty of any kind that the licensed software, or any products or results of the use thereof, will meet licensee's or other persons' requirements, operate without interruption, achieve any intended result, be compatible or work with any software, systems, or other services, or be secure, accurate, complete, free of harmful code and defect or be error free.
III.Limitation of Liability
- Limitation of liability. Except for (i) death or bodily injury caused by a party’s negligence, (ii) each party’s indemnification obligations under the Agreement, (iii) the Licensee’s violation of Ki-Wi Digital’s intellectual property rights and (iv) the extent to which liability may not be lawfully limited under the applicable law, each party's maximum, cumulative liability for any claims, losses, costs (including attorney's fees) and other damages arising under or related to the Agreement regardless of the form of action, whether in breach of warranty, contract, tort (including but not limited to negligence or strict liability) or otherwise, will be limited to actual damages incurred, which will in no event exceed the greater of the amount of fees paid by the Licensee or payable by the Licensee during the 12 months immediately prior to the time the cause of action arose and attributable to the specific software, products or services giving rise to such damages, or EUR 1,000, whichever is higher.
- Exclusion of damages. To the maximum extent permitted under the applicable law, Ki-Wi Digital will not be liable for (a) any loss of any kind, whether in law, contract, misrepresentation (whether innocent or negligent) or otherwise, (b) direct loss; (c) accidental loss, (d) incidental loss, (e) consequential loss, such as loss of savings, profits or revenues, loss or corruption of data, goodwill, or reputation, inaccuracy of any data, the cost of procurement of substitute goods, services or software, or (f) any indirect, incidental, special, punitive, exemplary or consequential damages, howsoever arising and regardless of the theory of liability, even if advised of the possibility of such damage or loss. Ki-Wi Digital shall use reasonable efforts to protect information submitted by the Licensee in connection with the services, but the Licensee agrees that its submission of such information is at its sole risk, and the Licensee hereby releases Ki-Wi Digital, to the maximum extent permitted under applicable law, from any and all liability to the Licensee for any loss or liability relating to such information in any way.
- Scope of Limitation. The limitations, exclusions and disclaimers contained in the Agreement are independent of any agreed remedy specified in the Agreement and will apply to the fullest extent permitted by applicable law, even if any agreed remedy is found to have failed of its essential purpose. To the extent that Ki-Wi Digital may not, as a matter of law, disclaim any warranty or limit its liabilities, the scope or duration of such warranty and the extent of Ki-Wi Digital’s liability will be the minimum permitted under such law. If a waiver, right, or remedy is exercised pursuant to mandatory law, it shall be exercised solely for the purpose provided and in conformance with the procedures and limitations expressly provided for by such law.
- No Third-Party Beneficiaries. The warranties and other obligations of Ki-Wi Digital under the Agreement run only to, and for the sole benefit of, the Licensee and its affiliates within the same company group, notwithstanding any rights to access or use the Software the Licensee. Except as otherwise mandated by applicable law, no other person or entity will be considered a third-party beneficiary of the Agreement or otherwise entitled to receive or enforce any rights or remedies in relation to the Agreement.
IV. Intellectual Property Infringement Indemnification
- Indemnification. Ki-Wi Digital shall indemnify, defend and hold the Licensee harmless against any claim by a third-party against the Licensee that the Software, as delivered by Ki-Wi Digital, infringes a third-party copyright or trademark, or misappropriates a third-party trade secret (“Intellectual Property Claim”) provided that Licensee (i) promptly notifies Ki-Wi Digital in writing of such Intellectual Property Claim; (ii) allows Ki-Wi Digital to have control of the defence and any related settlement negotiations; and (iii) provides Ki-Wi Digital with such information, authority and assistance necessary for the defence or settlement of the Intellectual Property Claim.
- Exceptions. Ki-Wi Digital will not be liable for any Intellectual Property Claim arising from or based upon (i) any unauthorized use, reproduction or distribution of the Software; (ii) any modification or alteration of the Software without the prior written approval of Ki-Wi Digital; (iii) use of the Software in combination with any other software or hardware not provided or approved by Ki-Wi Digital; or (iv) use of the Software in a manner prohibited by any applicable law.
- Remedies. If the Software becomes, or, in Ki-Wi Digital’s opinion, is likely to become, the subject of an Intellectual Property Claim, Ki-Wi Digital may, at its option and expense, either: (i) obtain the right for Licensee to continue using the Software in accordance with the Agreement; (ii) replace or modify the Software so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably achieved by Ki-Wi Digital, terminate the license(s) for the relevant Software and refund the Licensee with a proportional part of the license fees received by Ki-Wi Digital with respect thereto, provided that such Software is returned to Ki-Wi Digital promptly after the effective date of any such termination.
- Sole and exclusive remedy. This section states Ki-Wi Digital's sole and entire obligation and liability, and Licensee's sole and exclusive right and remedy, for any Intellectual Property Claim.
V. Licensee Indemnification Obligation
- Indemnification. The Licensee is responsible for Licensee’s and Authorized Users’ use of the Software including any content uploaded, kept or otherwise use within the Software and the Licensee will indemnify, hold harmless and defend Ki-Wi Digital and its subsidiaries and agents (“Ki-Wi Digital Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claim”) arising out of or in any way connected with: (a) Licensee’s access to, use of, or alleged use of, the Software; (b) Licensee’s violation of any portion of the Agreement, any representation, warranty, or agreement referenced in the Agreement, or any applicable law or regulation; (c) Licensee‘s violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right (e.g. content uploaded, kept or otherwise use within the Software); (d) any dispute or issue between Licensee and any third-party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by the Licensee.
- Right to defence. To the fullest extent permitted under applicable law, Ki-Wi Digital Entities reserve the right, at their own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Licensee (without limiting Licensee’s indemnification obligations with respect to that matter), and in that case, Licensee agrees to cooperate with the respective Ki-Wi Digital Entity’s defence of that claim. Licensee will not enter into any settlement agreement in any Claim related to or concerning a Ki-Wi Digital Entity without a prior written consent of the Ki-Wi Digital Entity unless such settlement provides the Ki-Wi Digital Entity with a complete release without imposing any additional costs or obligations and does not require admission of guilt or liability by the Ki-Wi Digital Entity. In addition to the foregoing, Ki-Wi Digital reserves its right to remove or block any content from the Software in case of any raised or a possibility of a Claim.
- Termination for Breach. Either party may terminate the Agreement or individual Software licenses if the other party fails to cure a material breach within 30 days after written notice of such breach is received by the breaching party, provided that Ki-Wi Digital may terminate the Agreement immediately upon any breach of Sections 1.2 - 1.5.
- Effect of Termination. Upon expiration or termination of the Agreement or any Software license, all rights granted to Licensee under the Agreement will also terminate and Licensee shall: (i) immediately cease using the applicable Software; and (ii) certify to Ki-Wi Digital within 30 days after such expiration or termination that Licensee has destroyed or has returned to Ki-Wi Digital all copies of the applicable Software, any and all other Ki-Wi Digital Confidential Information in its possession. Termination of the Agreement or any Software licenses shall not prevent either party from pursuing all available legal remedies, nor shall such termination relieve Licensee's obligation to pay all fees that are owed as of the effective date of termination. All provisions of the Agreement relating to Ki-Wi Digital’s ownership of the Software, limitations of liability, disclaimers of warranties, confidentiality (for the time periods specified in the Agreement), waiver, audit, governing law and jurisdiction, in addition to any other provisions of the Agreement that would normally survive termination, shall survive termination of the Agreement for any reason.
VII. Use of the Software
- Licensee agrees to comply with all applicable laws that apply to Licensee’s use of the Software. Licensee may only use the Software according to anticipated use of the Software. Licensee may particularly not (i) create, use, share and/or publish by any means in relation to the Software any material (text, words, images, sounds, videos, etc.) which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act (in particular, piracy, cracking or circulation of counterfeit software); (b) modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Software, or its accessibility to other users, or the functioning of the partner networks of the Software, or attempt to do any of the above; (c) transmit or propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Software, and/or organize, participate in or be involved in any way in an attack on Ki-Wi Digital’s servers and/or the Software; (d) create, supply or use alternative methods of using the Software; (e) make inappropriate use of the help service or the claim buttons or send untruthful reports to Ki-Wi Digital; (f) falsely claim to be an employee or representative of Ki-Wi Digital; or (g) falsely claim an endorsement in connection with the Software or with Ki-Wi Digital.
VIII. Software Update
- Ki-Wi Digital may occasionally automatically update or otherwise modify the Software, including, but not limited to, for purposes of enhancement of security functions, error correction and improvement of functions. Such updates or modifications may change or remove features or other aspects of the Software, including, but not limited to, functions you may rely upon. You acknowledge and agree that such activities may occur at Ki-Wi Digital's sole discretion and that Ki-Wi Digital may condition continued use of the Software upon your complete installation or acceptance of such update or modifications. Any updates or modifications shall be deemed to be, and shall constitute part of, the Software for purposes of the Agreement. By concluding the Agreement, you agree with such updates or modifications.
- Ki-Wi Digital is entitled at any time to alter or to cease production or supply of the Product.
IX. General Provisions
- Third Party Materials. The Software may include certain open source or other third-party software, data, or other materials (“Third-Party Materials”) that are separately licensed by their respective owners. License terms and other information relating to such Third-Party Materials, including any availability of source code, may be found here: docs.kiwisignage.com. Ki-Wi Digital makes no representation, warranty, or other commitment regarding the Third-Party Materials, and hereby disclaims any and all liability relating to Licensee’s use thereof.
- Disclosures. Licensee hereby grants Ki-Wi Digital the right to take steps Ki-Wi Digital believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of the Agreement. Licensee agrees that Ki-Wi Digital has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third-party, as Ki-Wi Digital believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of the Agreement (including but not limited to Ki-Wi Digital's right to cooperate with any legal process relating to your use of the Software, and/or a third-party claim that your use of the Software is unlawful and/or infringes such third-party's rights).
- Waiver and Severability. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of the Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- Assignment. Licensee will not assign or transfer the Agreement or its rights and obligations hereunder to any third-party without the prior written consent of Ki-Wi Digital.
- Information Practices. To verify the identity and contact information of Licensee and/or to support Licensee and improve the customer experience with the Software, Ki-Wi Digital may collect and use certain information relating to the use of the Software. This information may include size and number of databases and document objects, session information and browser and server configurations.
- Amendment. Ki-Wi Digital reserves the right, in its sole and absolute discretion, to revise, update, change or modify certain terms of the Agreement for security, legal, best practice or regulatory reasons about which Ki-Wi Digital shall inform Licensee. Unless explicitly refused by the Licensee within 15 days of its receipt, the updated terms of the Agreement shall be considered as approved by the Licensee. Licensee is encouraged to review Ki-Wi Digital’s website, and any notifications, messages and communications from us to ensure Licensee is aware of any changes.
- Governing Law. The governing law of the Agreement is the law of Czech Republic, excluding any conflict of law rules. The application of the United Nations Conventions on Contracts for the International Sale of Goods is hereby expressly excluded from any interpretation of the Agreement. Both parties assume the risk of a change in circumstances and thus are not entitled to claim a change in an obligation due to a material change in circumstances.
- Dispute Resolution. All disputes arising from the Agreement and/or in connection with it shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic according to its Rules by one arbitrator appointed by the President of the Arbitration Court.
- Entire Agreement. The Agreement constitutes the entire agreement between Licensee and Ki-Wi Digital and governs Licensee’s use of the Software, superseding any prior agreements with respect to the same subject matter between Licensee and Ki-Wi Digital. If Licensee installs the Ki-Wi Digital Product as defined in the terms and conditions of Ki-Wi Digital, Licensee will be bound by the terms of such terms and conditions. Licensee also may be subject to additional terms and conditions that may apply when Licensee uses affiliate services, third-party content, third-party software, or additional services.
- Notifications and Contact. Ki-Wi Digital may notify you with respect to the Software by posting on the website, sending an email message to your email address, a letter via postal mail to your mailing address or other reasonable form of communication. Notices shall become effective immediately. You may contact Ki-Wi Digital via contact details available on its website.
- Effective date. The present EULA shall take effect on 01.11.2021.