YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING, INSTALLING OR ANY USE OF ANY SOFTWARE (INCLUDING WIDGETS) AND/OR FIRMWARE (TOGETHER SOFTWARE), AND ANY OF THE FOLLOWING ASSOCIATED MATERIALS (MATERIALS) MEDIA, PRINTED MATERIALS, AUDIOVISUAL CONTENT, USER GUIDES, AND ONLINE OR ELECTRONIC, PROVIDED BY SPINETIX AG AND ITS AFFILIATES (SPINETIX), A SPINETIX DISTRIBUTOR OR A SPINETIX DEALER (EACH AN APPROVED CHANNEL PARTNER).
Terms & Conditions
1. Software should only be purchased from SpinetiX or an Approved Channel Partner. You are only permitted to use the Software if you are an authorized user either through our registration process or you have been authorized by SpinetiX or an Approved Channel Partner to use the Software. If you have not purchased the Software from SpinetiX or an Approved Channel Partner and/or you are not an authorized end user you are not permitted to use the Software and you have no rights under this end user license agreement (EULA).
2. This EULA is a legal agreement between you as an authorized user and SpinetiX for the Software. By downloading, installing or using the Software you accept and agree to be bound by the terms and conditions of this EULA. If you do not agree to all the terms and conditions of this EULA, then you have no right to use the Software and you must de-install all copies of the Software from your computer systems, or stop using Software where it is firmware contained on a SpinetiX digital signage player (SpinetiX Player) and/or other equipment, and return the Software and the Materials to the Approved Channel Partner from whom you purchased the Software. If you do this within 30 days after the purchase from SpinetiX or an Approved Channel Partner, and provided that (i) you are the original and authorized end user, and (ii) the Software is in its original condition, then you may request a refund of the license fee paid.
4. Software is licensed, not sold. Software and the Materials is protected by copyright as well as other intellectual property rights. SpinetiX retains all ownership and intellectual property rights in and to the Software and also in any Materials.
5. SpinetiX grants to you a non-exclusive, non-sub-licensable, license to use the Software for your own use only on a single computer/virtual machine or the firmware contained in the SpinetiX Player (as applicable).
6. The Software in source code form is confidential and SpinetiX's protected trade secret and you may not attempt to reverse engineer, decompile, disassemble, create derivative works based on whole or any part of the Software or otherwise decipher any portion of the Software, nor attempt to do any such things except to the limited extent permissible by applicable law. Reproduction and/or redistribution of any portion of the Software and the Materials is specifically prohibited in the absence of a separate written agreement with SpinetiX. You may only use the Software for normal use as described in SpinetiX's specification. You may not:
(a) copy (except to the limited extent permissible under applicable law or for normal operation of the Software), reproduce, translate, adapt, vary or modify the Software and the Materials, nor communicate it to any third party, without SpinetiX's prior written consent;
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software and the Materials; or
(c) remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software and the Materials or on the medium on which it resides.
7. You acknowledge and agree:
(a) that the Software has not been developed to meet your individual requirements and therefore it is your responsibility to ensure that that the functions of the Software as described in SpinetiX’s specification meet your requirements; and
(b) that the Software may not be free of bugs or errors and the existence of bugs or errors shall not constitute a breach of this EULA.
9. If you use the Software and/or any SpinetiX Player or electronic equipment to create or distribute audio, video, or other content, SpinetiX is not responsible for such content, and you are solely responsible, to ensure that such content and use of it is in accordance with applicable law, including laws relating to data protection, privacy, obscenity and export laws worldwide.
10. You agree not to infringe SpinetiX’s (and that of any owner of third party technology contained in the Software) intellectual property rights in the Software and the Materials and to comply with the laws of Switzerland and all other applicable law (including export controls) concerning the Software and the Materials. You agree not to ship or re-export any portion of the Software and the Materials to any destination to which it could not lawfully have been exported originally under any export control law.
11. This EULA is subject to the General Conditions. You may also be subject to additional terms and conditions agreed with the Approved Channel Partner from whom you purchased the Software. In no event shall such additional terms and conditions extend or enlarge SpinetiX’s liability to you.
12. If you breach this EULA, SpinetiX may immediately terminate this EULA and any associated licenses, and your right to use the Software ends immediately.
13. Upon termination of this EULA for any reason:
(a) all rights granted to you under this EULA and any associated licenses shall immediately cease;
(b) you may not use the Software;
(c) you must immediately pay to SpinetiX and/or the Approved Channel Partner any sums due pursuant to the purchase of the Software or any support/maintenance service;
(d) you must immediately delete or remove any Software from all computer equipment (if applicable) in your possession, or in the case of a SpinetiX Player and/or electronic equipment containing software and/or firmware immediately stop using such SpinetiX Player and/or electronic equipment, and at SpinetiX's option, immediately destroy or return to SpinetiX all copies of the Software and the Materials, and, in the case of destruction, certify to SpinetiX that you have done so;
(e) any accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected; and
(f) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14. This EULA is personal to you, and you may not assign or transfer your rights and/or obligations under it. No third party has any rights under this EULA.
15. You may not make any warranty claim (or any other) under this EULA if your organization or another authorized End-User in your organization has made the same or similar claim for the same individual Software. In any event only one warranty claim (or any other), if applicable, per individual Software product is permitted in any event.
16. This EULA shall be governed by the laws of Switzerland without regard to its conflict of laws provisions. The provisions of the UN Convention on Contracts for the International Sale of Goods of January 1, 1988 shall not apply to this EULA. SpinetiX and you irrevocably agree to the exclusive jurisdiction of the courts of Lausanne, Switzerland for the adjudication of any disputes arising under this EULA.
17. Widgets are a simple form of software in a form of a script that may be used to dynamically auto-update live data, including data from third parties, displayed on SpinetiX digital signage equipment (Widgets). The following terms apply to Widgets:
(a) for any Widgets provided to you by SpinetiX you are licensed to use them under the terms of the GNU General Public License, versions 2 and 3 (as applicable) (GPL terms);
(b) you have the right to modify and customize Widgets subject to the GPL terms;
(c) you also understand and acknowledge that the use and performance of Widgets depend on interactions or interfaces with third party data, software and APIs, which SpinetiX has no control over. Accordingly, SpinetiX is not responsible and cannot control any limitation to or impact on the use of the Widget that results from such third party data, software and APIs; and
(d) this paragraph 17 shall prevail over any conflicting terms in this EULA.
Limited Warranty/Limitation of Liability
(a) you being an authorized end user;
(b) having purchased the Software from SpinetiX or an Approved Channel Partner; and
(c) the limitations and terms and conditions contained in this EULA;
18. SpinetiX warrants that the Software will perform substantially in accordance with SpinetiX’s specification for a period of 30 days from the date of purchase. Except for the foregoing limited warranty, the Software and the Materials is provided ‘As Is’ and without any further warranty.
19. Except as described in paragraph 18 above, the Software and the Materials is provided without any express or implied warranties, including without limitation warranties of merchantability, satisfactory quality, fitness for purpose or non-infringement.
20. SpinetiX shall not be liable to the maximum extent permitted under applicable law whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, sales, revenues or savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under from your use of the Software or your inability to use the Software. SpinetiX shall not be liable for any of the losses in this paragraph even if you have informed SpinetiX of the possibility of such losses.
21. In no event shall SpinetiX’s liability exceed the amount SpinetiX received for the Software from you or the Approved Channel Partner.
22. In all cases SpinetiX will not be liable for any loss or damage that was not reasonably foreseeable.
23. Nothing in this EULA shall limit SpinetiX's warranties or liability for losses which may not be lawfully limited or excluded by applicable law.
24. SpinetiX’s entire liability and your exclusive remedy under this limited warranty shall be, at SpinetiX’s option, either:
(a) repair or replacement of the Software; or
(b) SpinetiX to use its reasonable efforts to procure that the Approved Channel Partner from whom you purchased the Software refunds the price you paid for the Software, however if that is not feasible then SpinetiX will return the price received by SpinetiX from the Approved Channel Partner for the Software.
This limited warranty does not apply if the failure of/or defect in the Software is the result of misuse or abuse, or otherwise if the Software has not been used in accordance with the specification for the Software. This limited warranty is also subject to you, where applicable, first contacting the Approved Channel Partner from whom you purchased the Software and using reasonable efforts to seek a remedy. Any replacement Software will be warranted for 30 days. For any warranty claim you must provide proof of purchase of the Software.
Upgrades and Version Changes
25. If you have purchased the Software from SpinetiX or an Approved Channel Partner and you have paid in full for the Software and subject to you being in compliance with this EULA, the General Conditions and any other agreement/terms you have or are subject to with SpinetiX, SpinetiX will provide to you free of charge all upgrades and version changes (i.e. bug fixes, patches, minor updates, feature improvements within the same software version) it makes generally commercially available to its customers during the period of 12 months from first activation of the Software. Major version changes (a change from one SpinetiX Software version to another) are excluded. Also excluded are customizations or developments that SpinetiX has provided for specific customers. Following the end of this 12-month period, to benefit from any Software upgrades and version changes you must either purchase the new Software or a support/maintenance service.
12 February 2018