Last update: 10 October 2018
The following text makes up the End User License Agreement that must be agreed to before downloading and using software.
Please read this End User License Agreement ("Agreement") carefully before checking the "I Accept" box below, downloading or using Qinematic’s Posture Scan or Movement Lab installed software("Application"). By checking the "I Accept" box below, downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement.
If you do NOT agree to the terms of this Agreement, do not check the "I Accept" box and do not download or use the Application.
Table of contents
License grant and scope of license
Ownership and intellectual property rights
Price and payment
Support and maintenance
Warranties and disclaimers
Limitation of liability
Return of the software
Disputes and governing law
This END USER LICENSE AGREEMENT (the "Agreement") is entered into by and between:
1) Qinematic AB, a limited liability company incorporated under the laws of Sweden with corporate registration number 556890-1903, with its registered address at Högsätravägen 17, 18158 Lidingö, Sweden (the "Licensor"), and
2) the individual and/or organization downloading or using the Application (the "Licensee")
The Licensor and the Licensee are hereinafter also jointly referred to as the “Parties” and individually as a "Party".
(A) The Licensor is active in the area of biomechanics and develops and sells installed software and software as a service, based on the capturing of 3D images of individuals, as well as other related services such as support, education and analysis/reporting of population data.
(B) The Licensor has developed and owns all rights in and to the Software (as defined below).
(C) Licensor licenses the Software to businesses and organizations that are interested in providing health services to their customers or their employees.
(D) The Licensee has expressed a desire to acquire a license, for itself and its Affiliates, to use the Software in its business and the Licensor has accepted to, on the terms and conditions set forth in this agreement, grant a right for the Licensee to use the Software.
(E) In order to regulate the above-mentioned license, the Parties have entered into this Agreement on the terms and conditions set out below.
1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50 % of the voting interests of the subject entity;
1.2 The "Agreement" means this End User License Agreement (EULA). This agreement may support a separate 'License Agreement' that includes schedules and any document incorporated by reference hereto. This Agreement and the separate License Agreement may be referred to collectively as the 'License Agreements'.
1.3 "Effective Date" shall mean the date the Agreement was duly executed by both Parties.
1.4 "Service Agreement" means the agreement for web-based services related to the Software entered into by the Licensor and the Licensee.
1.5 "Software" means the object code version of the Licensor’s proprietary software and web applications (Qinematic Posture Scan, Qinematic Movement Lab, Qinematic Note, Qinematic Server), including any Updates and all related Specifications, documentation and any additional materials, as well as any Upgrades (following receipt of any upgrade-fees if applicable).
1.6 "Specification" means the detailed written description of the Software, made accessible via www.qinematic.com, as updated from time to time,
1.7 "Support Services Addendum" shall mean the statement available at www.qinematic.com regarding support services and related services which are offered by the Licensor; as updated from time to time;
1.8 "Term" shall have the meaning set forth in section 11;
1.9 "Territory" shall mean the EU and the EEA, unless specified otherwise in separate 'License Agreement';
1.10 "Third-Party Products" means hardware and software products and tools which are offered by any other party than the Licensor;
1.11 "Updates" shall mean the Licensor’s published corrections of the Software, which will be provided to the Licensee in accordance with the Support Services Addendum;
1.12 "Upgrade Fee" shall mean the fee the Licensee shall pay to Licensor for Upgrades;
1.13 "Upgrades" shall mean Licensor’s published versions of the Software including new or better functionality, which will be provided to the Licensee in accordance with the Support Services Addendum.
1.14 "User" means an individual who is authorized by Licensee to use the Software and for whom Licensee has ordered the Software. Users may include for example employees of the Licensee or its Affiliates.
2. License grant and scope of license
2.1 Subject to the due fulfillment at all times of the Licensee's obligations under this Agreement, the License Agreement and the Service Agreement (where applicable), the Licensee and its Affiliates is hereby granted a non-exclusive, non-transferable, license to use the Software during the Term within the Territory on the terms and conditions set out in this Agreement and the License Agreement. The right to use the Software is granted in relation to the number of Users and subject to the limitations set forth in the Price Schedule (specified in the separate the License Agreement) and each subsequent order for additional licenses confirmed in writing to the Licensee.
2.2 The right for Affiliates to use the Software is conditional on the Licensee having notified the Licensor thereof in advance (in writing), and by doing so confirming that such use will be governed by the terms and conditions of the Agreement. The Licensee is fully liable for and guarantees the due fulfillment of such Affiliates’ undertakings under the Agreement including, for the sake of clarity, the payment of any license fees due.
2.3 The license only includes a right for the Licensee to use the Software within the scope of its own operations, meaning that - except as expressly provided herein - the Licensee may not rent lend, sub-license or otherwise permit a third party to, directly or indirectly, with or without remuneration, dispose of or otherwise use the Software.
2.4 The Licensee may not, or by giving permission to a third party, use, copy or otherwise transfer the Software, or parts thereof, except as expressly permitted by this Agreement. The Licensee may under no circumstances, or by giving permission to a third party, alter, develop or make additions to the Software.
2.5 The Licensee may not decompile, compile or reverse engineer the Software or by any other means recreate or attempt to recreate the source code of the Software or make copies for archival or disaster recovery purposes, other than what is expressly permitted by mandatory law.
2.6 The licensed Software may be subject to usage limits including quantities such as for example number of Users who may use the Software simultaneously, number of reports downloaded or number of tests included in a license. Such limitations will be set forth in the Price Schedule, as defined in a separate License Agreement between Parties. The Licensee undertakes not to permit direct or indirect access to or otherwise use the Software in a way that circumvents such a contractual usage limit.
2.7 Proprietary rights notices on the Software, or the media by which it is made available, regarding patents, copyright, trademarks or other intellectual property rights may not be altered or removed by the Licensee.
2.8 The Software shall be delivered to the Licensee in a manner and at the time agreed upon by the Parties following due payment of the license fees. If not otherwise agreed the Software will be made available to download subject to entering a license key as instructed by the Licensor by e-mail.
2.9 The Licensee is solely responsible for implementation and installation of Updates and Upgrades of the Software.
3. Ownership and intellectual property rights
3.1 Ownership and all intellectual property rights in the Software, including but not limited to patents, design rights, copyrights, trademarks, trade-secrets and proprietary know-how, shall be owned by and vested in Licensor, or Licensor’s licensor if applicable, and nothing in this Agreement shall be interpreted as a transfer of such rights from Licensor to the Licensee. The Licensee is solely entitled to the limited license to the Software specifically granted under this Agreement.
4. Price and payment
4.1 As consideration for the rights granted to the Licensee under Section 2 above, the Licensee shall pay license fees in accordance with the prices stated in the Price Schedule of the separate License Agreement.
4.2 The license fees are stated exclusive of VAT, taxes and or other duties, which, if applicable, shall be paid by the Licensee in addition to the license fee.
4.3 The license fees are due and payable within thirty (30) days from the date of invoice. Interest on late payments shall be paid in accordance with the Swedish Interest Act.
4.4 If the Licensee's late payment lasts for more than thirty (30) days after Licensor’s written request for payment, Licensor shall have the right to by written notice terminate the Agreement and claim compensation for any damages the delay might have caused Licensor.
4.5 Any Updates of the Software will be offered to Licensee at no additional cost. Upgrades will be offered to Licensee as an "add-on" at a separate cost. The Support Service Addendum will be updated from time to time with offers on updates.
4.6 The Licensee is entitled to order additional Licenses during the Term to the same price and subject to the same contractual limitations as set forth in the Price Schedule.
5. Support and maintenance
5.1 Licensor will provide support and related services as described in the Support Service Addendum (as amended from time to time), some of which are free of charge and some of which are optional and charged for.
6. Warranties and disclaimers
6.1 Except as expressly provided herein, Licensor leaves no warranties and no representations whatsoever to Licensee with regard to the Software and expressly disclaims any liability, including but not limited to, functionality, fitness for purpose, freedom from errors and bugs or that any defects in the Software will be corrected.
6.2 Licensor does not warrant that the Software will function together with Third Party Products that the Licensee uses or that the Software will otherwise fit into the IT environment of the Licensee. Licensor disclaims all liability and indemnification obligations for any harm, damages or other liability caused by any third party hosting provider or by Third Party Products used in connection with the Software.
7.1 Licensor agrees to indemnify the Licensee from any claims by a third party based on the Licensee’s use of the Software, or part thereof, within the Territory, infringing any such third party's intellectual property rights. Licensor’s obligations under this Section 7 is subject to the Software being used in accordance with the terms and conditions set out in this Agreement.
7.2 Licensor shall have no obligation to indemnify the Licensee against third party claims of infringement based upon (i) use, operation or combination of the applicable Software with non-Licensor hardware, software, data, documentation or other equipment if such infringement would have been avoided but for such use, operation or combination; or (ii) the Software has been altered or used in a way deviating from its construction or from its intended purpose.
7.3 Licensor's obligations under this Section 7 only applies provided that the Licensee (i) without undue delay notifies Licensor in writing of the claims brought against the Licensee; (ii) allows Licensor to control the defence and solely to decide thereof and all related settlement negotiations; and (iii) acts in accordance with Licensor’s instructions and, at the Licensee’s own expense, cooperates with and assists Licensor to the extent reasonably requested by Licensor.
7.4 Subject to the conditions under Sections 7.1-7.3, Licensor shall indemnify the Licensee for such damages, liabilities, costs or expenses awarded in a final judgment or settlement, which has been approved in writing by Licensor.
7.5 If an infringement due to the Licensee’s use of the Software is finally established, Licensor shall, at its own discretion, (i) procure for the Licensee the right to continue using the affected Software; (ii) modify the affected Software so that it does not infringe; (iii) replace the affected Software with functionally equivalent software so that it does not infringe; or, (iv) annul the Software and, with the reduction of any reasonable benefit the Licensee might have had from the Software, repay the license fee without interest.
7.6 This Section 7 constitutes the entire liability of Licensor, and the Licensee’s sole and exclusive remedy with respect to any third-party claims of infringement of intellectual property rights.
8. Limitation of liability
8.1 Except for the liability regarding infringement of intellectual property rights as set forth in Section 7, Licensor shall in no event be liable to the Licensee under the Agreement/s for loss of production, loss of data, loss of business or profit, loss of goodwill, the Licensee’s obligation to compensate a third party or any other indirect or consequential damage.
8.2 With the exception of what is set forth in Section 7, Licensor’s aggregate and total liability under the Agreement/s in respect of any one or more events or series of events (whether connected or unconnected) occurring during the term of the Agreement/s shall be limited to an amount corresponding to the total compensation paid by the Licensee as license fees during the twelve (12) months immediately preceding the incident causing the loss.
9. Confidential information
9.1 The Licensee is aware that the Software contains trade secrets and other confidential information, which belong to the Licensor. The Licensee therefore agrees not make the Software available to a third party without Licensor's prior written consent and to take all reasonable measures to ensure that trade secrets and any other confidential information are not divulged, disclosed or otherwise furnished, directly or indirectly, to any third party.
9.2 The Licensee’s confidentiality obligation under this Section 9 shall not apply to trade secrets or any other confidential information which the Licensee can demonstrate:
(i) is already known by the Licensee when received;
(ii) is or has becomes public knowledge other than by breach of this Agreement;
(iii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(iv) is to be made publicly available due to a court order, a decision by a public body or as otherwise required by mandatory law.
9.3 The Licensee agrees to impose on its employees and consultants, in an appropriate manner, the above obligations regarding the use of the Software in Section 2 and of confidentiality in this Section 9. The Licensee shall be liable in relation to Licensor for its employees’ and consultants’ actions and for their observance of the above stated provisions.
9.4 The Licensee's obligations under this Section 9 shall be valid during the term of the Agreement/s and continue for a period thereafter of two (3) years after expiration or termination of the Agreement/s, regardless of the reason therefore.
10.1 The Licensee shall promptly after Licensor’s request thereof, provide Licensor with information regarding the number of authenticated users that are using the Software, number of tests that have been carried out by use of the Software and any other information reasonably requested by the Licensee for the purposes of confirming that contractual limitations are complied with.
10.2 Licensor may appoint an independent auditor to, within reasonable time and not more than fourteen (14) days after the Licensee has received a written notice from Licensor, during the Licensee’s normal working hours conduct an audit to determine and verify that the Licensee is in compliance with the terms and conditions of the Agreement/s and in particular any contractual limitations as regards number of tests or authenticated users.
10.3 The Licensee shall cooperate with Licensor and shall promptly grant the independent auditor appointed by Licensor access to the Licensee’s premises. The audit shall be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt Licensee’s operations. Licensee shall be liable to promptly remedy any breaches of the Agreement, including but not limited to underpayment of the license fee revealed during the audit. If the audit reveals an underpayment of license fees, in relation to the number of licenses being used, in excess of five (5) per cent of the licensee fee due for the relevant period, Licensee shall also be liable for Licensor’s costs for the audit.
11.1 This Agreement shall enter into force on the Effective Date and shall remain in force for a period of three (3) years thereafter.
11.2 The Agreement shall be automatically extended for successive one (1) year periods unless either Party terminates the Agreement/s by written notice to the other party no later than six (6) months prior to the end of the initial term or the subsequent one (1) year extensions.
11.3 The Licensee may also, with observance of the term of notice in Section 11.2 above, terminate the Update and Upgrade services separately.
12.1 Either Party may after a written notice to the other Party terminate the Agreement/s, with immediate effect if: (i) the other Party has committed a material breach of the Agreement/s or the Service Agreement (where applicable), and has not rectified the same within thirty (30) days after receipt of a written notice thereof; or (ii) the other Party is wound up or if a trustee in bankruptcy or insolvency, liquidator, receiver, or manager on behalf of a creditor is appointed or if circumstances arises which would entitle the court or a creditor to make a winding-up order, or if it otherwise is likely that the other Party is insolvent.
12.2 In the event of termination of the Agreement/s in accordance with Section 12.1, the Licensee shall not be entitled to a refund of excess license fees or Upgrade Fees paid in advance for the time after the termination of the Agreement/s.
12.3 In the event the Licensee has committed a material breach of the Agreement/s, the Licensee shall compensate Licensor for its damages, costs, or loss, regardless if Licensor chooses to terminate the Agreement/s under this Section 12 or not. If the material breach consists of the Licensee making unauthorized copies of the Software, or parts thereof, the Licensee shall be obliged not only to pay the license fee for the unauthorized copies but also to compensate Licensor for the damage caused due to the breach. The unauthorized copies of the Software shall, by Licensors own choice and request, be returned to Licensor or destroyed in accordance with what is stated in Section 13 below.
13. Return of the software
13.1 Upon termination of the Agreement/s, regardless of the reason therefore, the Licensee shall immediately and in accordance with Licensor’s instructions return or destroy all copies of the Software, and, whenever applicable, the media on which the Software has been made available to the Licensee. The Licensee shall thereafter certify in writing to Licensor that such return or destruction has occurred and that the Licensee neither directly or indirectly, in whole or in part, holds or disposes of the Software or any copy thereof.
14. Force majeure
14.1 If and to the extent that a Party’s performance of any of its obligations pursuant to the Agreement/s is prevented, hindered or delayed due to circumstances beyond the reasonable control of such Party such as, lightning, labour disputes, fire, acts of war, requisition, seizure, currency restriction, riots and civil disorders, shortage of means of transportation, shortage of goods, amendments to regulations issued by governmental authorities, intervention of authorities or defects and/or delays in delivery of his sub-suppliers due to the circumstances here stipulated (each, a "Force Majeure Event"), then the non-performing Party shall be excused from any performance of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature thereof. The non-performing Party is, however, always obligated to mitigate the effects of the Force-Majeure Events.
14.2 Should an event of Force Majeure continue for more than three (3) months, the Parties shall have the right to terminate the Agreement or part thereof. For such termination Sections 12 and 13 apply.
15.1 In the case of any inconsistency between the Agreement and any of the appendices to the Agreement, the Agreement shall prevail.
15.2 Any amendment or modification to the Agreement/s or any of the appendices must, in order to be binding for the Parties, be in writing and signed by both Parties.
15.3 The Licensee may only assign the rights or obligations under this Agreement to a third party with the prior written consent of Licensor.
15.4 Any notice required or permitted to be given by either Party under this Agreement, shall be in writing and may be delivered by courier, sent by registered airmail letter, facsimile or electronic mail to the Parties contact persons at the below stated addresses. Such notice shall be deemed to be given:
(a) if sent by courier - on the day of delivery to the receiving Party.
(b) if sent by registered airmail letter - five (5) days after the day of dispatch;
(c) if sent by electronic mail - when received at the other Party’s email address, provided that the sending party the same day has sent the e-mail by mail.
16. Disputes and governing law
16.1 The Agreement/s shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.
16.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The place of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English unless otherwise agreed.
16.3 The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
16.4 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.