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Inextrace EULA

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THIS END USER LICENCE AGREEMENT (“EULA”)

CONTAINS INFORMATION CONCERNING YOUR RIGHTS TO USE THE INEXTRACE APPLICATION (the “Application”) AND INEXTO’S LIMITED WARRANTY AND LIMITATIONS OF LIABILITY DURING THE TERM OF THIS EULA. PLEASE READ IT CAREFULLY BEFORE INSTALLING OR USING THE APPLICATION. BY INSTALLING THE APPLICATION, YOU ARE CONSENTING TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, THEN DO NOT INSTALL OR USE THE APPLICATION. THIS EULA IS BETWEEN YOU, WHERE YOU MAY BE EITHER AN INDIVIDUAL OR AN ENTITY (“YOU”) AND INEXTO, SA (“INEXTO”).

IT IS AGREED as follows:

1. CONSIDERATION

In consideration of You downloading the Application and the agreements and undertakings herein set out, the parties to this EULA have granted the rights and accepted the obligations hereinafter appearing.

2. LICENCE

  1. INEXTO hereby grants to You a non-exclusive, non-sublicensable, non-transferable licence to use the Application for Your business’ internal purposes until such time as the customer agreement relating to this EULA (the “Licence Agreement”) terminates (“Licence Term”) on the terms and subject to the conditions of this EULA.
  2. The Application is licensed on a per location basis.
  3. You may use the Application only at the location specified in the Licence Agreement.

3. TITLE AND RISK

  1. The Application is confidential and proprietary to INEXTO and title to same shall remain with INEXTO at all times.
  2. Risk in the Application shall pass to You as soon as You download the Application and You shall take all reasonable steps to safeguard the Application from loss or damage.

4. CONFIDENTIAL INFORMATION

  1. The Application and any associated documentation (the “Documentation”) contain confidential information of INEXTO and all copyright, trademarks and all other intellectual property rights in and to the Application and Documentation are and shall remain the sole and exclusive property of INEXTO. Nothing in this EULA shall confer any rights in any trade name, business name or trade mark of INEXTO on You. The provisions of this clause 4.1 shall continue to operate after the termination of this EULA.
  2. You must keep your log-in details safe and secure and in accordance with the terms governing their issuance and use in the Licence Agreement. If you become aware of the loss, theft, misappropriation or unauthorised use of the log-in details, you must notify INEXTO immediately.

5. INTELLECTUAL PROPERTY

  1. All proprietary rights to any intellectual property and know-how in the Application shall be and at all times and for all purposes remain vested in INEXTO and its licensors.
  2. In the event that any results evolve out of or in connection with or as a result of this EULA, You acknowledge that the results, including the know-how and intellectual property contained therein, shall be the sole property of INEXTO or its licensors as appropriate.
  3. Save as otherwise expressly set out herein and as otherwise expressly permitted by law, You shall not:
    1. Make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Application or the Documentation;
    2. Make any translation, adaptation, arrangement or any other alteration of the Application or the Documentation;
    3. Make any form of distribution to the public of the Application or the Documentation, in whole or in part, or of copies thereof;
    4. Make any communication, display or performance to the public of the Application or the Documentation unless authorised in advance in writing by INEXTO;
    5. Disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the Application, or another product wholly or partially derived from any of the foregoing;
    6. Assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Application or the Documentation or use the Application or the Documentation on behalf of any third party, or make available the same to any third party without the prior written consent of INEXTO;
    7. Copy, adapt or reverse compile the whole or any part of the Application or the Documentation;
    8. Remove or alter any copyright or other proprietary notice from the Application or the Documentation.

6. WARRANTIES

  1. Except as expressly provided herein, all conditions and warranties (express or implied, statutory or otherwise) are excluded by INEXTO. Without prejudice to the generality of the foregoing, INEXTO does not warrant that the Application will achieve any intended result or that the operation by You of the Application will be uninterrupted or error-free.
  2. For the avoidance of doubt, INEXTO shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:
    1. Any use of the Application by You other than in accordance with the terms of this EULA;
    2. Use of the Application for a purpose for which it was not designed;
    3. Any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Application;
    4. Any reverse assembly, reverse compilation, reverse engineering or adaptation of the whole or part of the Application;
    5. Alteration, modification, adjustment, translation, adaptation or enhancement made by You to the Application or any combination, connection, operation or use of the Application with any other equipment, software or documentation;
    6. Any dissemination, sale, hire, lease offer or exposure for sale or distribution of the Application;
    7. A malware attack or other virus introduced to the Application by You or a third party;
    8. Failure to keep your log-in details safe and secure and in accordance with the terms governing their issuance and use in the Main Agreement or failure to notify INEXTO once You become aware of the loss, theft, misappropriation or unauthorised use of the log-in details;
    9. Any item of third-party hardware or software, even if forming part of the Application or if INEXTO has recommended such third-party hardware or software;
    10. Any breach by You of Your obligations under this EULA or of INEXTO’s intellectual property rights; or
    11. Any act, omission, negligence, fraud or default of or by You or Your officers, employees, agents or contractors.
  3. This clause 6 sets out Your exclusive remedy and INEXTO’s sole liability in respect of any breach of warranty.

7. LIMITATION OF LIABILITY

  1. Neither party’s liability to the other shall be limited in any way which cannot be excluded by law.
  2. Subject to clause 7.1, INEXTO’s maximum aggregate liability under or in connection with this EULA including under an indemnity claim shall be limited to direct damages of an amount equal to 250 CHF.
  3. Subject to clause 7.1 above, INEXTO will not be liable for the following loss or damage however caused and even if foreseeable by INEXTO:
    1. Economic loss, which shall include loss of profits, business, revenue, goodwill, or anticipated savings;
    2. Special, indirect or consequential loss;
    3. Loss arising from any claim made against You by any other person;
    4. Loss or damage arising from Your failure to fulfil Your responsibilities or any matter under Your control; or
    5. Loss of any data or information and damage arising out of such loss.
  4. INEXTO shall be discharged of liability in respect of any claim arising out of any transaction subject to these terms, whether in contract, tort or otherwise, unless formal commencement of legal proceedings is brought twelve (12) months after You first become (or should reasonably have become) aware of the facts that constitute the cause of action, except in respect of liability under clause 7.1 above.
  5. If a number of defaults give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under this EULA.
  6. For the avoidance of doubt, INEXTO shall not be responsible for Your acts or defaults or of Your employees or representatives.
  7. Nothing in this clause shall confer any right or remedy upon You to which You would not otherwise be legally entitled.

8. COMPLIANCE WITH LAW

In performing this EULA, both parties shall comply with all applicable laws, statutes, rules, and regulations, including those relating to bribery, anti-money laundering, and corruption.

9. ASSIGNMENT

INEXTO may assign, subcontract, or transfer all or any of its rights or obligations under this EULA. You may only assign or transfer Your rights or obligations under this EULA with the prior written consent of INEXTO.

10. GOVERNING LAW

This EULA and any non-contractual obligations arising from or connected with this EULA shall be governed by and construed in accordance with the laws of Switzerland and the parties agree to submit to the exclusive jurisdiction of the courts of Lausanne, Switzerland.

11. ENTIRE AGREEMENT

This EULA contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings, or arrangements (both oral and written) relating to the subject matter of this EULA.

12. SEVERABILITY

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

13. NO WAIVER

Failure or delay by either party to enforce any right or remedy under this EULA shall not be construed as a waiver of any such right or remedy or prevent either party from relying on such right or remedy in the future.

14. NO THIRD-PARTY RIGHTS

Nothing in this EULA is intended to confer upon any person other than the parties to it any rights or benefits.

15. SURVIVAL

Any provisions of this EULA that are intended to survive termination (including but not limited to clauses 3, 4, 5, 6, 7, 10, and 12) shall continue in full force and effect.

16. COUNTERPARTS

This EULA may be executed in counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.