Product License Agreement / End User License Agreement
The parties to this Agreement are you (the End Customer or its representative) and Skillplan GmbH (“Skillplan”).
We kindly ask you to read the following contract as carefully as possible.
Fundamentals
The use or installation of Skillplan products, including their updates, is subject to acceptance of the terms of this agreement.
This agreement also covers the Skillplan hardware appliance products, software and firmware as well as stand-alone software products sold by Skillplan.
The terms of this Agreement may be amended or updated by Skillplan from time to time at its sole discretion.
Acceptance of these conditions is a prerequisite for the use of the products mentioned.
Continued use of the software after such a change shall be deemed to constitute acceptance of the changed conditions.
Skillplan shall not be bound by any additional and/or inconsistent terms contained in any order, releases, order confirmations or other written correspondence or other written or oral communication unless expressly agreed in a writing signed by Skillplan’s management.
If you do not accept the terms of this agreement, you are not authorized to begin the installation process or to use the Skillplan products.
If you do not agree with the terms of this agreement and wish to make changes, please inform Skillplan’s management in writing within 5 calendar days of receipt of the product.
By installing or using the software, the licensee agrees to the terms of this EULA.
Granting of license
This is a license agreement between you (“Licensee”) and Skillplan (“Licensor”), but not a purchase agreement.
The term “Software” as used in this Agreement includes all Skillplan and third party firmware and software provided to you with or integrated into Skillplan Appliances. This also applies to any stand-alone software made available to the licensee by Skillplan. An exception to this is open source software, which is included in Skillplan products and is discussed in detail in the Open source software section.
The term “Software” also includes all accompanying documentation, all updates and improvements to the Software or firmware provided to you by Skillplan at its sole discretion.
Licensor hereby grants Licensee a non-exclusive, non-transferable, revocable (in the event of your failure to comply with these Terms, in the event of termination or in the event that Skillplan is not properly paid for the relevant Product) right to use the Software solely for your contractually agreed business purposes, provided that if
- the licensee agrees to these license terms,
- Licensee is authorized in writing by Skillplan to offer Managed Service Provider (“MSSP”) services to its end customers, then you may use the Software and/or the Software embedded in Skillplan hardware to provide such services to Licensee’s customers, subject to the other restrictions in this Agreement.
The licensee agrees that, apart from the limited, specific license rights mentioned here, he will not receive any license rights to the software.
Open source software
The software from the SPSA product range of Skillplan GmbH, Merlischachen, Switzerland, is based on Apache Guacamole™, which is licensed under the Apache License V2.0 of the Apache Software Foundation.
SPSA uses Guacamole unchanged and extends it with a deployment environment and use case specific extensions.
The licensee agrees to accept the terms of the Apache license without restriction. The Apache license, version 2.0, can be viewed at http://www.apache.org/licenses/ and applies to the Apache Guacamole component within the software.
The software may also contain software programs that are licensed (or sublicensed) to the end user under other comparable free software licenses and allow the end user, among other rights, to copy, modify and redistribute certain programs or parts of these programs and to obtain access to the source code (“open source software”).
If licenses for any software that is made available in an executable binary format require that the source code also be made available to the respective users, the source code shall be delivered with the software. If other open source software licenses require the rights holder to provide rights to use, copy or modify an open source software program that are broader than the rights granted in this License Agreement, then such rights will take precedence over the rights and restrictions set forth herein.
The corresponding licenses are stored in the “licenses” folder in the software distribution.
Utilization
The licensee may only use the software for internal business purposes. The software is supplied either as a virtual appliance (installable under a virtual machine) or as a physical appliance (pre-installed on dedicated hardware). The software must be installed and operated in accordance with the configuration guidelines.
If the licensee uses the products in or in connection with safety-critical applications where non-performance or injury to the products, loss of property or loss of life is to be expected, the use is solely at the risk of the licensee. The Licensee agrees to indemnify Skillplan against any claims or losses in connection with such unauthorized use. In this case, liability for any damages incurred shall be transferred in full to the licensee.
MAINTENANCE AND SUPPORT
Support is only available for products purchased directly from the licensor or an authorized distributor. In order to use support and maintenance services, it is necessary to conclude a corresponding support and maintenance contract (link to website).
In order to use the available service, the licensee must be registered. You can register at any time.
Restrictions
The licensee is permitted to make copies of the software solely to protect against data loss (“backups”) and to store these only for access by the licensee.
The licensee shall also commit himself and his employees and vicarious agents,
- not to rent, lease or sell the software or rights to the software or to make the software available or accessible to third parties in any other way (with the exception of cases expressly permitted for MSSP partners);
- to transfer, assign or sublicense rights to other natural or legal persons;
- remove proprietary notices, labels or trademarks from the software, products and containers;
- use the software to determine benchmarking or performance measurements or to disclose the results thereof;
- use the software on a device that is not owned and controlled by the licensee;
- use automated means to access online parts of the platform for the software;
- use the Software for third party training, commercial time-sharing or service bureaus or (except as expressly provided in this Agreement) use the Software to provide services to third parties;
- share non-public functions or content of the software with third parties;
- access the Software to create a competing product or service, create a product using similar ideas, features, functions or graphics of the Software, or copy ideas, features, functions or graphics of the Software.
Property rights
The software is the property of the licensor and is protected by copyright laws and international copyright treaties.
All rights, including copyrights, trade secrets, patents and other intellectual property rights, title and interest in and to the Software and any Product and any copy thereof shall remain with Licensor.
Licensee fully acknowledges that no title or other intellectual property rights in the Software or other products are transferred to Licensee and Licensee acquires no rights in the Software or other products, except for the specific limited license as expressly set forth in the Grant of License section above.
Licensee expressly agrees that Skillplan owns, retains and will retain all intellectual property rights in the Products and Software, and does not own any other intellectual property rights in the Products and Software beyond the grant of the License.
Confidentiality
The Licensee undertakes to treat all confidential information relating to the Software as confidential and to use such information only for the purposes for which Skillplan has disclosed it and to take reasonable steps to ensure confidentiality.
Term and termination
This license ends automatically if the licensee violates one of the conditions.
The Licensor may terminate this Agreement and the licenses and other rights contained herein with immediate effect and without notice if the Licensee breaches any provision of this Agreement. Licensee agrees that upon such termination, Licensee will cease use of the Software and all Products and immediately destroy all copies of the Skillplan documentation or return all materials to Skillplan.
Transmission
If you are a Skillplan contracted and authorized reseller of Skillplan products, you may permanently transfer (not rent or lease, unless Skillplan has expressly agreed in writing) the Software to an end user. This assumes that you
- ensure that your customer and the end user receives a copy of this Agreement, is bound by its terms and you hereby agree to enforce the terms of this Agreement against the end user by selling the product or software,
- comply at all times with all applicable Swiss export control laws and regulations and
- agree to refund to the end customer any fees paid to you by an end customer who purchased the product(s) from you. This applies in particular if the End User does not agree to the terms of this Agreement and consequently intends to return the Product(s) in accordance with the terms set out in this Agreement.
If you are an unauthorized reseller of products and services, you are not authorized to sell products, software or services.
Notwithstanding anything to the contrary, resellers and other Skillplan partners are not agents of Skillplan and are not authorized to bind Skillplan in any way.
Guarantees and exclusion of warranty
The software is provided “as is” without any express or implied warranty of any kind (see also “Remedy of defects”).
The Licensor warrants to the Licensee that the Licensed Products will perform substantially in accordance with the Documentation, provided they are operated in accordance with the Documentation on the specified operating systems and appliance.
The Licensor does not warrant that (i) the product meets the requirements of the licensee, (ii) the operation of the product is error-free or uninterrupted.
The licensor gives no guarantee that the software will function properly in the event of violations of the conditions as described in the user manual or in this license agreement; in particular, the licensor accepts no responsibility for damage caused by use that does not comply with the conditions of use (see Use).
The warranty does not apply if (i) the Licensed Product has not been used in accordance with the terms of this License Agreement and the Documentation, (ii) the problem was caused by the Licensee’s failure to apply updates, upgrades or other measures or instructions recommended by the Licensor, (iii) the problem was caused by the act or omission of the licensee or a third party or by materials provided by the licensee or a third party; or (iv) the problem arises for any reason beyond the licensor’s reasonable control.
Remedy of defects
The licensee is obliged to inspect a software product delivered or downloaded from the website immediately after delivery and to notify the licensor immediately in the event of a defect, describing the defect as specifically as possible and stating the symptoms.
Omission by the licensee means acceptance of the subject matter of the contract. In the event of a hidden defect, this must also be reported to the Licensor immediately after its discovery, otherwise the item shall also be deemed to have been accepted with regard to this defect.
In the event of material defects and defects of title, Skillplan shall, at its discretion, either remedy the defect or make a new delivery, provided that this subsequent performance is possible and subject to reasonable conditions. The Licensor may, at its discretion, remedy the defect at the Licensee’s premises or have it remedied by a third party. Such services can also be provided by remote maintenance in agreement with the licensee. The Licensor may also rectify defective software by demonstrating ways of avoiding the effects of the defect or eliminating them by means of a different software version if this is reasonable for the Licensee.
If subsequent performance is not possible or only possible under disproportionate conditions, the Licensor may take back the subject matter of the contract against reimbursement of the purchase price less an amount that takes into account the period of use. In this case, the licensee is obliged to return the subject matter of the contract.
If a defect cannot be proven, the licensor reserves the right to charge the customer for troubleshooting services provided at the customer’s request.
Exclusion and limitation of liability
To the extent permitted by law, in no event shall the Licensor and its affiliates be liable for any direct, indirect, incidental, special or consequential damages (including but not limited to damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for damage to or loss of data or programs, for failure to perform any duty, including any legal duty, duty to exercise reasonable care, for negligence, for economic loss and for financial or other loss) arising out of or in any way connected with the use of or inability to use the Software, even if the Licensor has been advised by the Licensor of the possibility of such damages.
The Licensee agrees that in the event that the Rights Holder and/or its Affiliates are held liable, the liability of the Rights Holder and/or its Affiliates shall be limited to the cost of the Software. Under no circumstances will the liability of the Rights Holder and/or its Affiliates exceed the costs reimbursed to the Rights Holder or the Affiliate (as the case may be) for the Software.
The above limitations of liability do not apply to personal injury and to statutory liability under the Product Liability Act.
Compliance with laws, including import/export laws
The licensee is advised that the products may be subject to the export regulations of Switzerland; detour contrary to the laws and regulations is prohibited.
Licensee agrees to comply with all applicable international and national laws governing the Products, as well as end-user, end-use and destination restrictions issued by Switzerland and other governments. Further information on export controls can be found at https://www.eda.admin.ch/eda/de/home/aussenpolitik/sicherheitspolitik/exportkontrolle.html
Skillplan accepts no responsibility or liability for any failure on the part of the Licensee to obtain the necessary import and export permits and licenses. Skillplan reserves the right to terminate or suspend deliveries, services and support if Skillplan has a reasonable suspicion of an import or export violation.
Applicable law
This EULA shall be governed by the laws of Switzerland, without regard to its conflict of law provisions.
Place of jurisdiction
Any dispute in connection with this EULA shall be subject to the exclusive jurisdiction of Swiss law, Canton Schwyz.
Severability clause
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be incomplete.
By installing or using the software, the licensee agrees to the terms of this EULA.
If the licensee does not agree to these conditions, neither the installation of the software nor its use is permitted.
