End-user license agreement
Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.
By clicking “accept agreement” when you first install the Software, you agree to be bound by the provisions of this EULA.
By agreeing to be bound by this EULA, you further agree that your employees or any person you authorise to use the Software will comply with the provision of this EULA.
1. Definitions
1.1 Except to the extent expressly provided otherwise, in this EULA:
“Applicable law” means Slovak law;
“Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;
“EULA” means this end-user licence agreement, including any amendments to this end user licence agreement from time to time;
“Services” - the services required by the User to be undertaken by Photoneo;
“Effective Date” means the date upon which the User gives the User’s express consent to this EULA;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hardware Product” means 3D scanning device delivered by Photoneo (PhoXi 3D Scanner family or MotionCam-3D family) or computing device running Photoneo software (e.g. visual controller), or HW Licensing Key;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Party” the User and Photoneo;
“Licensor” means Photoneo s. r. o., a company organized and existing under the laws of the Slovak Republic, with its registered office at Jamnického 3, Bratislava 84105, ID No.: 47 353 309, registered in the Commercial Register administered by the District Court in Bratislava I, registration number 91452/B
“Licensor Indemnity Event” has the meaning given to it in Clause 13.1;
“LGPL” means GNU Lesser General Public License;
“Maintenance Services” means the supply of Updates and Upgrades to the User;
“Minimum Term” means, in respect of this EULA, the period of 12 months beginning on the Effective Date;
“Services” means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;
“Software” means any software application by Photoneo that is shipped either together with the Hardware Product or independently;
“Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the User;
(b) any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;
(c) a failure of the User to perform or observe any of its obligations in this EULA; and/or
(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
“Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise];
“Term” means the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“Update” means a hotfix, patch or minor version update to the Software;
“Upgrade” means a major version upgrade of the Software;
“User” means the person to whom the Licensor grants a right to use the Software under this EULA; and
“User Indemnity Event” has the meaning given to it in Clause 13.3.
2. Binding Software to Hardware product
2.1 The functionality of Software is bound to Hardware products. It can be used only with the Hardware product. In the event that possession of the Hardware product is terminated, the User must not use the Software and must uninstall it.
2.2 For testing purposes, the User is allowed to use PhoXi Control without the Hardware product.
3. Term
3.1 This EULA shall come into force upon the Effective Date.
3.2 This EULA shall continue in force indefinitely, subject to termination in accordance with Clause 15.
4. Licence
4.1 The Licensor hereby grants from the date of supply of the Software to the User until the possession of Hardware Product terminates a worldwide, non-exclusive licence to:
(a) install the Software;
(b) use the Software while using Hardware Product in accordance with the Documentation; and
(c) create, store and maintain up to 5 (five) back-up copies of the Software,
subject to the limitations and prohibitions set out and referred to in this Clause 4.
4.2 The User may sub-license the rights granted in Clause 4.1 to any third party for the purposes of hosting the Software and supporting the User’s use of the Software in accordance with this EULA only. Any such sub-licence shall automatically terminate upon the termination of the licence in Clause 4.1.
4.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
(b) the User must not alter, edit, adapt or modify the Software;
(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software
4.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
5. Source Code and Accompanying Libraries
5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code, except as set forth in 5.2.
5.2 This Software uses Qt library; which is licensed by LGPL. You have thus right to:
(a) obtain complete corresponding source code of the Qt library used with the application or the device built using LGPL, including all modifications to the library,
(b) the complete corresponding source code of Qt library is delivered with the Software. In the event the User has not obtained the source code with the Software, the source code of the Qt library will be delivered to you free of charge based on your request. You can make the request by email at info@photoneo.com or by writing using the postal address of the Licensor,
(c) the complete corresponding source code will be delivered even if the Qt library has not been modified at all,
(d) User is allowed to change, or re-link the Qt library (but not other parts of the Software), and obtain sufficient installation information to do this. User is allowed to reverse engineer the Qt library (but not other parts of the Software).
(e) The User enjoys other rights outlined in the text of the LGPL license, related to Qt library.
5.3 This Software may use Bonjour for Windows. The terms for Bonjour for Windows are regulated by Software License Agreement For Bonjour For Windows, which text is provided separately after this EULA.
6. Maintenance Services and Support Services
6.1 Maintenance Services to the User are covered by a separate contract. If there is no separate contract, no Maintenance Services are provided.
7. Support Services
7.1 Support Services to the User are covered by a separate contract. If there is no separate contract, no Support Services are provided.
8. No assignment of Intellectual Property Rights
8.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
9. Charges
9.1 PhoXi Control application is provided free of charge. Charges for the other Software are agreed between the Parties or are set by the Licensor.
10. Disclaimer of Warranty
10.1 There is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the Licensor provides the program “AS IS” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction.
11. Limitation of Liability
11.1 In no event unless required by applicable law or agreed to in writing will Licensor be liable to you for damages, including any general, special, incidental or consequential damages arising out of the use or inability to use the program (including but not limited to loss of data or data being rendered inaccurate or losses sustained by you or third parties or a failure of the program to operate with any other programs), even if such holder or other party has been advised of the possibility of such damages.
12. Acknowledgements and warranty limitations
12.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
12.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
12.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
13. Indemnities
13.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of this EULA (a “Licensor Indemnity Event”).
13.2 The User must:
(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
(c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
(d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,
without prejudice to the Licensor’s obligations under Clause 13.1 / and the Licensor’s obligation to indemnify the User under Clause 13.1 shall not apply unless the User complies with the requirements of this Clause 13.2.
13.3 User agrees to indemnify, defend, and hold Photoneo , its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party providers harmless from and against all claims, demands, actions, liabilities, losses, expenses, damages, and costs, including actual attorneys’ fees, resulting from your violation of the material terms of this End-user license agreement, any misuse or abuse of a Service, any use of the Service that amounts to infringement, or infringement by any other user of your account of any intellectual property or other right of Photoneo or any other third party. User will cooperate as fully as reasonably required in Photoneo ’S defense of any claim. Photoneo reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User and User shall not in any event settle any matter without the written consent of Photoneo. User agrees immediately to notify Photoneo of any unauthorized use of your account or any other breach of security known to Photoneo.
13.4 The Licensor must:
(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;
(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;
(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and
(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User.
13.5 The indemnity protection set out in this Clause 13 shall be subject to the limitations and exclusions of liability set out in this EULA.
14. Limitations and exclusions of liability
14.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by the EULA, except to the extent permitted by law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this EULA:
(a) are subject to Clauses 14.1 and 17.4; and
(b) govern all liabilities arising under the EULA or relating to the subject matter of the EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the EULA.
14.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
14.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.
14.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.
14.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
14.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
14.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
15. Termination
15.1 The User may terminate this EULA by giving to the Licensor not less than 30 days’ written notice of termination.
15.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of the EULA, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within the period of [30 days] following the giving of a written notice to the other party requiring the breach to be remedied]; or
(b) the other party persistently breaches the EULA (irrespective of whether such breaches collectively constitute a material breach).
15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the EULA)];
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order].
15.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:
(a) any amount due to be paid by the User to the Licensor under the EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the User at least [30 days’] written notice, following the failure to pay, of its intention to terminate the EULA in accordance with this Clause 15.5.
16. Effects of termination
16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect.
16.2 The termination of this EULA shall not affect the accrued rights of either party.
16.3 For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.
16.5 Within 10 Business Days following the termination of this EULA, the User must:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.
17. General
17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
17.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
17.4 This EULA shall be governed by and construed in accordance with Slovak law.
17.5 The courts of Slovak Republic shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
18. Interpretation
18.1 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
18.2 The Clause headings do not affect the interpretation of this EULA.
18.3 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
18.4 In case of any discrepancy or conflict between the Photoneo General Terms and Conditions (T&C) of Sale and Delivery and End-user license agreement, the End-user license agreement shall prevail.