Dizmo End User License Agreement
This agreement (“License Agreement”) forms a legally binding contract between you and dizmo AG, Zürich, Switzerland (“Dizmo”), in relation to your use of the dizmoSpace and accompanying software and documentation.
By clicking “agree” or “purchase “, you agree to this License Agreement to become effective and to be bound by the terms of this License Agreement. You are referred to as “you” or as “Licensee”.
- “Device” is any type of equipment, device, virtual environment or digital surface on which a copy of Software is installed using a valid license from Dizmo, with each virtual machine or other environment and each digital surface counting as one Device.
- “Services” shall have the meaning set forth in article V.2 below.
- “Software” means Dizmo’s user interface and application environment software and specifically including the dizmoSpace, library files and a set of dizmos provided by Dizmo, as well as all related documentation.
- “Update” means a revision to the Software or patch that improves the functionality of the Software and/or fixes known functional issues, and may contain new features or enhancements, which is not an Upgrade.
- “Upgrade” means a subsequent version of the Software that Dizmo designates as a new release and makes generally commercially available.
II. General Provisions of the License Agreement
- Prior to any use of the Software, you must agree to the terms of this License Agreement. You may not use the Software if you do not agree to the terms of this License Agreement.
- This copy of the Software is licensed and not sold. It is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Dizmo or its subsidiaries, affiliates and suppliers own any and all intellectual property rights in the Software. Your license to download, use, copy, or change the Software is subject to these rights and to all the terms and conditions of this License Agreement.
- Only persons entitled to use the Software under applicable laws may enter this this License Agreement. You may not use the Software and may not validly enter into the License Agreement if you are a person barred from receiving the Software under the laws applicable in the country in which you are resident or from which you use the Software, or any other law that may be applicable to you.
- After the installation of the Software, you will be required to enter a valid license key to unlock the Software. As long as you do not enter such license key, the Software will operate as a trial version with full functionality for 30 days, after which period functional and operational limitations will apply. If you circumvent this mechanism or otherwise improperly unlock the Software or attempt to do so or if you use this Software for non-trial purposes without a valid license key, this License Agreement shall immediately become void.
III. License Grant
- Dizmo herewith grants to Licensee a limited, revocable, non-exclusive, non-transferable and non-sublicenseable license to use the Software in accordance with, and subject to, the terms of this License Agreement.
- This License Agreement allows you to install and use a copy of the Software (whether trial or full version) on up to three (3) Devices at a time for the Standard and up to ten (10) for the premium license, provided that the Software is always used only by either you or one other person (guest) at a time (i.e. a maximum of one concurrent user for all three/ten Devices). You may make one copy of the Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.
- The license granted in this License Agreement shall be effective as from the time when you agree to the terms of this License Agreement. The license ends automatically upon termination of this License Agreement, as set forth in Section VI.
- Dizmo may at its sole discretion, but is under no obligation to provide Updates, including error corrections to the Software, as well as minor improvements to the Software, as such corrections and improvements become generally available. This License Agreement applies to them accordingly. Upgrades or other enhancements, however, have to be purchased and licensed separately.
- If Licensee grants another person access to the Software for the purpose of using it in accordance with the above license grant (as a guest), License is responsible to ensure, undertakes and warrants that such other person fully complies with the terms of this License Agreement and is bound by them vis-à-vis Dizmo, and Licensee shall be liable for any costs and damages resulting out of the breach of the foregoing or the terms of License Agreement by such other person.
IV. Restrictions of Use
- Licensee acknowledges and agrees that the Software (including all its Updates and Upgrades) is and remains the exclusive property of Dizmo and includes valuable know-how and trade secrets of Dizmo. Licensee acknowledges and agrees that Dizmo (or, as the case may be, certain third parties) owns any and all legal right, title and interest in and to the Software (including all its Updates and Upgrades), including any and all intellectual property rights that may subsist in the Software. Dizmo expressly reserves any and all rights not expressly granted to Licensee in this License Agreement.
- Licensee agrees to treat the Software (including in particular, but without limitation, all related and valuable know-how and trade secrets of Dizmo) as confidential and may not and agrees not to enable others to, without the express written authorization of Dizmo:
- Assign Licensees rights and obligations under this License Agreement, or redistribute, encumber, sell, market, rent, lease, sublicense or otherwise make available the Software or any part thereof to any third party; or
- Modify, alter, reuse, disassemble, decompile, reverse engineer or otherwise translate the Software or any portion thereof (except insofar permitted by mandatory law); or
- Combine any part of the Software with other software, or distribute any software or device incorporating a part of the Software; or
- Remove, obscure or alter any product identification, copyright notices, or other notices or proprietary restrictions from the Software.
- Dizmo, the Dizmo logo, dizmoSpace, dizmoStore and other Dizmo trademarks, service marks, graphics, and logos used in connection with the Software are trademarks or registered trademarks of dizmo AG in Switzerland and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Software may be the trademarks of their respective owners. Nothing in this License Agreement gives you a right to use any of Dizmo’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Software or the Services, including “dizmoStore”.
- Licensee agrees that Licensee will not take any actions that may cause or result in the fragmentation of the Software, including but not limited to distributing, participating in the creation of, or promoting in any way a product development kit derived from the Software.
- Use, reproduction and distribution of any component of the Software licensed under an open source software license are governed solely by the terms of that open source software license and not by this License Agreement.
- Licensee agrees that Dizmo may stop permanently or temporarily maintaining, making available and supporting the Software (or any features within the Software) for you or for users generally at Dizmo’s sole discretion, at any time and without prior notice. Licensee also agrees that Dizmo has the rights to at any time and without notice substantially alter or modify the Software, or even withdraw and not continue the Software at all. Licensee acknowledges and agrees that, without notice, applications and other software developed by Licensee or a third party on or for the Software, and Devices (on which Software has been used or which have been intended for the Software) may not or no longer be compatible with future versions of the Software and that Licensee’s or third party’s applications and other software and Devices may no longer be used when the Software is discontinued by Dizmo. Licensee shall have no, and will not raise any, claims in such cases.
- This License Agreement does not permit the installation of the Software on a system that allows shared used of applications, on a multi-user network, or on any configuration or system of computers, or electronic devices in general, that allows multiple users.
- You may not use the database portion of the Software in connection with any software other than the Software. You may not alter any files or libraries in any portion of the Software. You may not reproduce the database portion or create any tables or reports relating to the database portion.
- You may not copy any part of the Software except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium.
V. Services, Applications and Third Party Content
- Licensee acknowledges and agrees that Dizmo will not provide any support relating to the Software and its use by Licensee, and that Dizmo is not required to make available copies of the Software to Licensee in any particular form, number or manner.
- The Software may enable access to services made available by Dizmo or third parties through its online market place or otherwise from Dizmo (“Services”). You acknowledge and agree that access to Services will only be possible with a valid registration with Dizmo, which requires entering into a separate agreement with Dizmo.
- The Software may permit you to install additional applications and other software from Dizmo and third parties on the Software. You acknowledge and agree that access to such applications and other software will only be possible through the online market place or otherwise through Dizmo, and will require a valid registration with Dizmo, for which you have to enter into a separate agreement with Dizmo.
- You may be able or want to develop and publish additional applications and other software for installing and running on the Software. You acknowledge and agree that for making such additional applications and other software available to users of the Software will only be possible through the online market place or otherwise through Dizmo, and will require a valid registration with Dizmo, for which you have to enter into a separate agreement with Dizmo, and a separate agreement for developers.
- You understand that by using any of the Software, you may encounter content of third parties that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Software at your sole risk and that Dizmo shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
- Certain Services, in conjunction with the use of the Software, may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Software, you acknowledge and agree that Dizmo is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Dizmo, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
- This License Agreement is effective until terminated.
- Dizmo may at any time, by giving notice to Licensee, terminate this License Agreement with immediate effect for cause, including, without limitation, if:
- Licensee has breached any provision of this License Agreement; or
- Licensee has failed to make the payments requested by Dizmo in exchange for license keys to unlock the Software; or
- Dizmo is required to do so by law or concludes that it may have to do so for Dizmo or Licensee or its use of the Software remaining in compliance with law, including without limitation if the Software or parts of it in Dizmo’s assessment may infringe third party rights.
- Dizmo may at any time, by giving notice to Licensee, terminate this License Agreement for convenience if Licensee is using the Software for free or otherwise for demonstration or trial purposes, or if Dizmo believes that the use of the Software by Licensee or otherwise under this License Agreement may result in considerable risks or disadvantages for Dizmo, including without limitation potential liability.
- You may at any time terminate this License Agreement for convenience by providing Dizmo written notice.
- Upon termination of this License Agreement for whatever reason, Licensee shall immediately cease to use the Software (in the version as licensed under the terminated License Agreement and any older versions of the Software) and completely delete or destroy any copies, including any installations thereof on its Computer(s). Upon termination, Licensee may no longer use any version of the Software licensed under the terminated License Agreement, including older versions of the Software.
- Licensee agrees that Sections IV and VII-IX shall remain in force and binding upon Licensee for an indefinite period beyond the termination of the License Agreement, irrespective of the reason for the termination of the License Agreement.
VII. Exclusion of Warranties and Liability; Indemnification
- The Software is provided to you “as is” and without any representation or warranty of any kind. You acknowledge and agree that no representation or warranty whatsoever, whether express or implied, is given to you by Dizmo under this License Agreement or otherwise relating to the Software, the use of the Software by you, the rights and title in the Software and the Software’s compatibility with other software or devices, its fitness for purpose, its merchantability, its non-infringement and that it is free from errors or malicious code.
- Any and all risk of Licensee arising out of the use or performance of the Software by Licensee and the development, use or operation of applications and other software installed and used on the Software by Licensee remains with Licensee.
- The liability of Dizmo for damages whatsoever arising from or in connection with this License Agreement or the use of, or the inability to use, the Software by Licensee or any third party shall be excluded to the greatest extent permitted under applicable law. This shall apply regardless of whether Dizmo is aware of or has been advised of the possibility of such damage by Licensee or any third party.
- Licensee agrees to fully indemnify and hold Dizmo harmless for and against any loss, damage, claim or expenses which Dizmo may suffer resulting from any breach by Licensee of this License Agreement, any applicable third party contract, or any applicable law or regulation.
VIII. Miscellaneous Provisions
- Licensee agrees to, upon request, create and provide to Dizmo and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of Software is in compliance with this License Agreement. Upon reasonable notice, Dizmo and its auditors may verify Licensee’s compliance with this License Agreement wherever Licensee uses Software subject to this License Agreement. Dizmo will inform Licensee if it has found the Software been used in excess of its licensed use or otherwise in violation of this License Agreement, and Licensee agrees to promptly pay Dizmo for any such excess use, other charges, costs and liabilities determined as a result of such verification, including the costs of such verification.
- Notices to be provided by Dizmo to Licensee may be validly communicated via e-mail to the last e-mail address of Licensee known by Dizmo; sending an e-mail to such address shall be considered valid notice under this License Agreement, and shall be considered received within 24 hours. Licensee shall keep Licensee’s contact details registered with Dizmo correct and complete at all times. Notices to be provided by Licensee to Dizmo shall be provided in writing to the address of Dizmo provided on its website under www.dizmo.com.
- Dizmo is at any time entitled to assign this License Agreement or any rights or obligations hereunder to a third party. Licensee may not assign this License Agreement or any rights or obligations hereunder to a third party without the prior written consent of Dizmo.
- This License Agreement constitutes the entire and only agreement between the Dizmo and Licensee relating to the subject matter of this License Agreement. Any changes to this License Agreement shall be valid only if agreed in writing.
- Licensee shall comply with all applicable laws and regulations in connection with its activities pursuant to this License Agreement.
- Failure of Dizmo to enforce a right under this License Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
- Should any part or provision of this License Agreement be held to be invalid or unenforceable by any competent court, governmental or administrative authority having jurisdiction, the other provisions of this License Agreement shall nonetheless remain valid and the provision held to be invalid or unenforceable shall be replaced by a substitute provision that best reflects, to the extent permitted under applicable law, the economic interest reflected in the provision held to be invalid or unenforceable.
IX. Governing Law and Jurisdiction
- This License Agreement shall be exclusively governed by and construed in accordance with the substantive laws of Switzerland, excluding its conflict of laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
- To the extent permitted by applicable law, the exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to the License Agreement (or subsequent amendments thereof), including, without limitation, disputes, claims or controversies regarding its existence, validity, interpretation, performance, breach or termination, shall be the city of Zurich, Switzerland.
Last updated: October 14, 2014