1. Applicability of the EULA
1.1 This Software End User License Agreement (the “EULA”), govern the End User’s (as defined below) use of the Software (as defined below) which is the property of XMReality AB (publ), registration number 556722-7284, a Swedish company, hereinafter referred to as XMReality.
1.2 The EULA shall also apply mutatis mutandis even if the Software is made available to the End User by means of access to a cloud service (a software-as-a-service solution) or integrated in a hardware product, including but not limited to smart glasses, mobile phones or tablets.
2. Grant of license
2.1 Subject to the terms and conditions the EULA and the full and timely payment of all fees and amounts related to the purchase of the license to use XMReality’s computer software products collectively referred to as the “Software”, XMReality and its licensors (collectively referred to as “XMR”) hereby grant to the person using the Software (the “End User”) a license fee based, non-exclusive, non-assignable and non-transferable license to use for internal purposes only (the “License”), the Software in relation to which this License is granted, including any printed documentation or documentation files published by XMR and accompanying the Software (the “Documentation”). The License entails a right for the End User to use one (1) copy of the Software for one (1) individual user, on unlimited physical devices, unless otherwise set forth in the applicable subscription agreement for the Software, and for the period specified in the applicable subscription agreement for the
Software. The individual user corresponds, unless otherwise defined, to one physical person. Sharing of user id’s with others to avoid a higher charge is not allowed. The
Software will only be provided to the End-User in object code only and accordingly no source code will be provided or subject to the License.
2.2 This EULA shall also apply to any updates, upgrades and new versions of the Software, unless otherwise expressly is agreed in writing between XMR and the End User. For avoidance of doubt, the License does however not govern or modify the terms and conditions of any third party proprietary software contained in or delivered together with the Software. The End User’s right to use all such third party proprietary software shall be governed by the relevant third party’s license terms and conditions, if any. Such third party license terms and conditions can be made available to the End User by XMR upon prior written request.
2.3 This EULA does not include any right to support and maintenance of the Software (i.e. technical assistance, provision of updates, upgrades, new versions and/or modifications). Any support and maintenance may be provided by XMR, or any of XMR’s authorized representatives/partners, on specific terms under a separate Support and Maintenance Agreement.
3. Ownership and intellectual property rights
3.1 The End User has no and does not gain any ownership rights in the Software (or any intellectual property rights contained therein), but only the limited license rights according to the License as set out in this EULA.
3.2 The Software, Documentation and all and any intellectual property rights associated therewith and in relation thereto, including but not limited to patents, design rights, copyrights, trademarks, trade-secrets and proprietary know-how, are and will remain at all times the sole and exclusive property of XMR, its licensors (if any) and the End User has no right, title or interest in or to the Software, Documentation or the intellectual property rights associated therewith, except as expressly granted in the License.
3.3 This EULA does not grant the End User any rights in the trademarks or service marks of XMR, all of which remain the exclusive property of XMR and its affiliates. Any proprietary right notices on the Software, Documentation or their associated packaging, regarding patents, copyright, trademarks or other intellectual property rights may not be altered or removed by the End-User.
3.4 Upon XMR’s request, the End User agrees, at XMR ’s expense, to take such actions as XMR may reasonably request to protect or perfect XMR ’s ownership in the Software or the Documentation.
4. Copies of the Software and the Documentation
4.1 The Software and Documentation contain material that is proprietary to XMR and protected by copyright laws and international treaty provisions. Accordingly, the End User may not make copies of the same, except to the extent set forth in this EULA. The End User may however exercise all rights as follow under applicable statutory law.
4.2 The End User may only copy the Software and the Documentation for the End User’s own benefit, account and use (primarily for back-up and IT-security purposes). The End User shall at all times maintain any copyright notices provided on the Software, Documentation and associated packaging and any copies thereof. The End User shall ensure that any permitted copy of the Software is produced only for the End User’s own benefit, that it is clearly marked on the copy that such copy is subject to copyright and confidentiality, and that a written list is maintained of the number of copies and place of storage.
5. License restrictions and non-assignment
5.1 This EULA grants the End User the right to use the Software for internal purposes.
5.2 The End User must protect the Software and Documentation in a manner consistent with XMR’s rights expressed in this EULA. The End User may not sublicense, modify, distribute, or create derivative works based on the Software or any part thereof. The End User may not reverse engineer, decompile, disassemble, translate, or adapt the Software, nor shall the End User attempt to create the source code from the object code of the Software unless explicitly permitted by applicable mandatory law.
5.3 The End User acknowledges and agrees that the intellectual property associated with the Software and the Documentation, and any other nonpublic information of a technical or commercial nature concerning the Software and the Documentation disclosed to the End User in connection with this EULA constitute XMR’s confidential proprietary information and trade secrets, and the End User agrees to hold such information in strict confidence.
5.4 The End User shall have no right to transfer or assign the License or the End User’s rights or obligations under this EULA in whole or in part, and any attempted transfer or assignment shall be null and void.
6. Infringement of third party rights
6.1 XMR shall pay those direct costs and damages finally awarded against the End User in connection with any claim by a third party that the Software infringes any copyright or misappropriates any trade secret recognized as such under applicable law (or those costs and damages agreed to by XMR in a written monetary settlement) and the reasonable costs of defense incurred by the End User in connection therewith, including reasonable attorneys’ fees and court costs, provided that:
6.1.1 the End User provides XMR with prompt written notice of any such action or claim;
6.1.2 the End User will permit XMR to assume and control the defense and settlement of any such action or claim, at XMR’s expense;
6.1.3 the End User will not prejudice the defense of the action or claim nor will the End User make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of XMR; and
6.1.4 the End User will provide XMR with such assistance, documents, authority and information as XMR may reasonably require in relation to the action or claim and defense or settlement thereof.
6.2 Notwithstanding the foregoing, XMR shall have no liability to the End User for any claim that:
6.2.1 arises out of any unauthorized use, reproduction or distribution of the Software;
6.2.2 arises out of any modification or alteration of the Software by anyone other than XMR;
6.2.3 arises out of the use of the Software in combination with any other software or equipment not provided by XMR or otherwise approved in writing by XMR (including
such general instructions/recommendations from XMR as equipment/software compatible with the Software) to; or
6.2.4 would have been avoided by use of the then-current release of the Software (if such has been recommended to the End User by XMR) or if the End User had followed
XMR’s reasonable earlier instructions with regard to implementation of any other later version of the Software (provided that End User’s adherence to such instructions
does not significantly adversely affect End User’s agreed use of the Software).
6.3 In addition, if the Software becomes, or in XMR’s opinion is likely to become, the subject of an infringement or misappropriation claim, XMR may, at its own expense and option, elect to either:
6.3.1 procure the right (by means of a modification of the Software, acquisition of third party license or otherwise) for the End User to continue using the Software in
accordance with the provisions of this EULA;
6.3.2 make such alterations, modifications or adjustments to the Software so that the infringing Software or Documentation becomes non-infringing without incurring a material diminution in performance or function;
6.3.3 replace the Software with a non-infringing substantially similar substitute; or
6.3.4 reclaim the Software and terminate the EULA.
6.4 If XMR modifies or replaces the Software, the End User shall have the same rights in respect thereof as it would have had under the original Software according to this EULA.
6.5 THIS SECTION STATES XMR’S ENTIRE LIABILITY, AND THE END USER’S SOLE AND EXCLUSIVE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OR MISAPPROPRIATION OF THIRD PARTY TRADE SECRETS IN RELATION TO THE SOFTWARE AND/OR THE DOCUMENTATION.
7. No warranties
7.1 THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED TO THE END USER “AS IS” AND SHALL MATERIALLY CONFORM TO XMR’S SPECIFICATIONS AND INSTRUCTIONS IN RELATION TO THE SAME, INCLUDING THE DOCUMENTATION. XMR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR CAN BE USED UNINTERRUPTED. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT ARE HEREBY DISCLAIMED.
8. Limitation of Liability
8.1 IN NO EVENT SHALL XMR BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND CAUSED BY THE SOFTWARE OR OTHERWISE UNDER THIS EULA, WHETHER DIRECT OR INDIRECT, INCLUDING ANY LOSS OF PRODUCTION, LOSS OF DATA, LOSS OF BUSINESS OR PROFIT, LOSS OF GOODWILL, THE END USER’S OBLIGATION TO COMPENSATE A THIRD PARTY OR ANY OTHER DAMAGES.
8.2 THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS EULA SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS ABOVE SHALL HOWEVER NOT APPLY IN CASE OF XMR’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
9.1 The EULA shall apply until terminated pursuant to this Section 9 or expires or is terminated in accordance with the terms of the EULA or any applicable agreement for the Software.
9.2 This EULA may be terminated immediately
9.2.1 forthwith by XMR if the End User commits a breach of the EULA;
9.2.2 forthwith by XMR if the End User or the company having procured the License is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or if a receiver or administrator is appointed over its assets;
9.2.3 forthwith by XMR if XMR in its reasonable opinion in accordance with subsection 6.3.4 has determined that neither of its other options in Section 6.3 (with subsections) is available;
9.3 If the EULA is terminated, the End User shall immediately upon the termination cease to use the Software and, in XMR’s reasonable discretion, return or delete the Documentation.
9.4 In the event the End User has committed a material breach of the EULA, the End User shall compensate XMR for its damages, costs, or loss, regardless if XMR chooses to terminate the EULA or not.
9.5 All provisions relating to confidentiality, intellectual property rights, nondisclosure and limitation of liability shall survive any termination of this EULA.
10. Export Control License
10.1 To XMR’s knowledge, the Software is not subject to any export control license. However, should the Software be subject to any export control licenses or any other Swedish or foreign governmental restrictions, the End User undertakes to conform to and apply the – from time to time – valid terms of such export control licenses or restrictions.
11. Entire agreement and waiver
11.1 This EULA governs the agreed use by the End User of the Software to the exclusion of all other written or verbal representations, statements, understandings, negotiations, proposals or agreements other than those confirmed by XMR in writing and expressly incorporated or referred to in the EULA.
11.2 A party’s waiver of any of its rights under this EULA must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
12. Disputes and applicable law
12.1 This EULA shall be governed by and construed in accordance with the laws of Sweden, without regard to its conflict of law principles providing for the application of the laws of any other jurisdiction.
12.2 The parties agree that the courts of Sweden shall have exclusive jurisdiction to hear and settle any dispute, controversy or claim (contractual or non-contractual) arising out of or in connection with this contract, or the breach, termination or invalidity thereof.