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EULA
This End User License Agreement (EULA) is applicable with Kemppi products containing Kemppi software.
Kemppi End User Software License Agreement
IMPORTANT! Read the text of this End User Software License Agreement carefully. The grant of the right to use the Software is made solely on condition that the Licensee agrees to the terms and conditions of this License. If the Licensee does not agree to the terms and conditions of this License, it is not authorized to use the Software.
By making an agreement with the authorized Software distributor of Kemppi or with Kemppi according to which the Software will be installed in the Licensee’s Product by the said authorized Software distributor of Kemppi or by Kemppi (the “Agreement”) or by using the Software, the Licensee indicates its acceptance of and is bound by the terms and conditions of this License. The terms and conditions of this License shall be an integral part of the Agreement.
Purpose of the agreement
The following terms and conditions set forth the terms and conditions according to which Kemppi Oy and its affiliates (hereinafter “Kemppi”) grant to the Licensee the right to use the Software.
The terms and conditions of this License may be supplemented or amended only by a written agreement between Kemppi and the Licensee. Each such written agreement modifies this License only to the extent express written provisions depart from the terms and conditions specified herein. All other terms and conditions shall apply as set forth herein.
Definitions
For the purposes of this Agreement the below definitions (and where the context so admits the singular shall include the plural and vice versa) shall govern the following:
| 1.1 | “License” | shall mean the terms and conditions of this End User Software License Agreement. |
| 1.2 | “Licensee” | shall mean the entity which makes, or intends to make, use of the Products either as legal owner having purchased the Products outright or pursuant to the terms of a leasehold agreement. |
| 1.3 | “Product” | shall mean the welding equipment manufactured by Kemppi and interfacing with the Software. |
| 1.4 | “Software” | shall mean the software of Kemppi referred to in and subject to the Agreement. |
Scope of license
Kemppi hereby grants the Licensee a non-transferable and non-exclusive license to use the Software exclusively in the Products, in which Products the Software is installed, and in strict compliance with the terms and conditions of this License. The License does not extend any rights to the Licensee in respect of the source code of the Software and the right is without prejudice to any license fees provided for in the Agreement under which the right to use the Software is acquired.
The License shall be strictly limited to the number of Software installations granted by Kemppi.
The Licensee shall not rent, lease or sell the Software independently or make it available on a time-sharing basis except for as may be permitted as an embedded part of a Product. The Licensee shall not have the right to install the Software in the Products by itself. The Licensee acknowledges and agrees that the Software shall be installed in the Products by the authorized Software distributor of Kemppi or by Kemppi as the case may be.
The Licensee may not copy, publish, translate, modify, adapt, decompile, disassemble or reverse engineer or otherwise attempt to discover the source code or the structural framework of the Software, or any portion thereof, except and only to the extent that such activity is expressly permitted by the mandatory provisions of the applicable law in lieu of this limitation.
The Licensee agrees to maintain all logos, trademarks and symbols used by Kemppi to identify its Software on the Product.
Ownership
The Licensee acknowledges and agrees that information regarding the Product (including but not limited to the serial number and model number of the Product, information of existing Software installed on the Product), to which the Software is or will be installed, may automatically or manually be submitted to Kemppi as a separate file for compliance purposes.
Title to the Software and all patents, copyrights, design rights, trade secrets, trademark (whether registered or unregistered) and other intellectual property rights in or related to the Software are and will remain the exclusive property of Kemppi and its licensors, whether or not specifically recognized or perfected under the laws of the country where the Software is located. The Licensee will not take any action that jeopardizes such proprietary rights or acquire any right in the Software, except the limited use rights specified in this License. Kemppi (and its licensors) will own all rights in any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof.
Indemnity
The Licensee accepts and agrees that the enforcement and protection, including the decision of whether or not to prosecute infringements or maintain registrations of Kemppi’s intellectual property rights in the Software will be in the sole discretion and control of Kemppi and any and all recoveries resulting from such actions will be retained by Kemppi. The Licensee shall execute such documents and provide such additional co-operation to Kemppi, at Kemppi’s expense, as Kemppi reasonably may request in order to perfect, evidence, protect or secure such intellectual property rights and to conduct such prosecution, registration or defense.
Subject to the terms of this License, Kemppi undertakes to indemnify the Licensee for any direct cost, loss or damage finally awarded by a competent court in the applicable jurisdiction, or by settlement agreements approved by Kemppi, amounts arising out of infringement of copyrights of third parties by the Software, provided that:
| a. | in case of any claim of infringement, the Licensee shall immediately notify Kemppi and afford Kemppi with every possibility to, at Kemppi’s option (and at no cost to the Licensee) (a) modify the Software so as to make it non-infringing, (b) obtain a license from the owner of the right that is alleged to be infringed by the Software, (c) to terminate the License, and/or (d) defend itself against the claim of infringement; |
| b. | the foregoing shall not apply in cases where (and to the extent that) the claim for infringement is based on any modification of the Software, combination of the Software with other equipment (whether hardware or software) or if the infringement results from compliance by Kemppi with any part of the specification that is required by the Licensee; and |
| c. | to the extent that a third party makes a claim of infringement against Kemppi, or any of its affiliates, based on the exceptions specified in the foregoing subparagraph (b) above, the Licensee shall indemnify Kemppi for any direct cost, loss or damage finally awarded by a competent court or arbitral tribunal in the applicable jurisdiction or by Licensee approved settlement amounts arising out of such action, subject to the same conditions (mutatis mutandis) as are specified in sub-paragraph (a) above. |
Confidentiality
The Licensee acknowledges that the Software incorporates confidential and proprietary information developed or acquired by Kemppi. The Licensee will take all reasonable precautions necessary to safeguard the confidentiality of the Software, including (i) those taken by the Licensee to protect its own confidential information; and (ii) those which Kemppi or its licensors may reasonably request from time to time. The Licensee will not allow the removal or defacement of any confidentiality or proprietary notice placed on items of Software.
“Confidential Information” means each component of the Software, whether in object code or source code form, any statement of work, the functional specifications agreed upon in the Agreement, functional descriptions, diagrams, graphs, models, trade secrets, sketches, technical data, research, development information, business or financial information, plans, strategies, forecasts, forecast assumptions, business practices, marketing information and materials, customer names, proprietary ideas, concepts, knowhow, methodologies, other, whether marked confidential or not, and all other information of Kemppi, its affiliated companies or third parties to whom Kemppi has a duty of confidentiality, or any other information or material otherwise coming to the knowledge of the Licensee in connection with the Agreement.
The Licensee will not disclose, in whole or in part, any Confidential Information to any person, except to those of its employees, agents or consultants who require access for the Licensee’s authorized use of the Software. Before disclosing any of these items to such parties, the Licensee will require that they expressly (i) recognize the confidential and proprietary rights in the Software of Kemppi or its licensors; and (ii) agree to comply with the use and non-disclosure restrictions applicable to the Confidential Information under this License.
The Licensee will have no confidentiality obligation with respect to any portion of the information that (i) the Licensee independently knew or developed before receiving any of the Confidential Information (as proven by the written records of the Licensee); (ii) the Licensee lawfully obtained from a third party under no obligation of confidentiality; or (iii) became available to the public other than as a result of an act or omission of the Licensee or any of its employees, agents or consultants.
Limitation of liability and disclaimer of warranties
Kemppi may not be held liable for defects or dysfunction of the Software and/or the Product due to (i) lack of qualification and competence on the part of the personnel assigned to use it, and/or (ii) changes made by the Licensee, a third party other than Kemppi or not previously certified in writing by Kemppi, and/or (iii) software and/or equipment not supplied and installed by Kemppi or its authorized distributor.
The Licensee expressly acknowledges that it has received from Kemppi or its authorized distributor all the necessary information that will enable the Licensee to evaluate the suitability of the Software for its needs.
Kemppi shall not be liable for any special, indirect, incidental, or consequential losses or damages (including, without limitation, any loss of data or lost profits) pertaining in any way to the software, or to any of Kemppi’s obligations under this license, even if Kemppi has been made aware of the possibility of any such losses or damages.
Except to the extent any liability of Kemppi is not capable of being excluded at law, notwithstanding any damages the licensee may incur for any reason whatsoever, the entire liability of Kemppi and the licensee’s exclusive remedy hereunder shall be limited to the actual damages incurred by the licensee in reasonable realiance on the software up to the amount actually paid by the licensee for the software.
The licensee accepts and agrees that any use of the software by the licensee is at its own risk. To the maximum extent permitted by applicable law, the software is provided “as is” and with all faults and Kemppi hereby disclaims all warranties and conditions, whether express, implied, statutory or otherwise, including without limitation, any (if any) implied warranties of merchantability, of non-infringement, or fitness for a particular purpose, of reliability, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the software.
The disclaimer of warranties does not limit the rights of a consumer provided by the mandatory provisions of applicable law.
Term and termination
This License shall commence on the installation of the Software to the Licensee’s Product. The Licensee’s right to use the Software will terminate automatically if the Licensee ceases to own, possess or operate the Products for which the Software has been delivered.
The rights granted to the Licensee under the License may be terminated by Kemppi upon a material violation by the Licensee of any terms or conditions contained herein which is not remedied by the Licensee within a reasonable period specified by Kemppi in a written notice drawing attention to the violation and requiring it to be remedied.
Termination by Kemppi shall be made by written notice that is delivered to the Licensee not less than 30 days prior to the effective date of termination specified in the notice. Said notice of termination shall be without effect if the Licensee cures all breaches that gave rise to termination prior to the effective date of termination.
Upon termination by Kemppi, all rights granted in respect of the Software to the Licensee under this License will immediately cease, the Licensee shall make no further use of the Software and the Software shall be uninstalled from the Product. The Licensee shall return to Kemppi all Confidential Information relating to the Software in its possession. Termination shall be without prejudice to any accrued rights and liabilities of the parties at the date of termination.
Applicable law and dispute resolution
The License is governed by and construed in accordance with the laws of Finland excluding its choice of laws provisions.
Any controversy or claim arising out of or relating to the terms and conditions of this License shall be primarily settled by negotiations. Any disputes arising from or relating to the terms and conditions of License shall be finally settled in arbitration in Helsinki in accordance with the rules of the Arbitration Board of the Central Chamber of Commerce in Finland. The arbitration tribunal shall consist of one (1) arbitrator appointed by the Finnish Central Chamber of Commerce. The arbitration proceeding shall be conducted in Finnish.
