mySmartApp™ End User License Agreement


This End User License Agreement (the “EULA”) governs your (“Licensee”) use of the “Software” (defined below) provided by iPerceive Pty Limited, a company incorporated in Australia (Australian Business Number 83 144 968 338) having its registered office at Unit 1611, 38-42 Bridge Street, Sydney NSW 2000 (the "Licensor"). You will be required to indicate your acceptance of this EULA in order to access or download the Software or to complete the installation process for the Software. By clicking on the “Yes" or “I Accept” button (or other button or mechanism designed to acknowledge acceptance of the terms of this EULA), or by downloading, accessing or installing the Software, you are consenting to be bound by this EULA.


This EULA shall supersede any other terms of use or license agreement that may appear during the installation or downloading of the Software, but is to be considered additional to any Software License Agreement signed as a pre-requisite before the installation or downloading of the Software.


If you agree to these terms on behalf of a business, you represent and warrant that you have the power and authority to bind that business to this EULA, and your agreement to these terms will be treated as the agreement of the business. In that event, "you”, “your”, “Licensee” refer herein to that business.


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.


If you are unwilling to agree to this EULA, or you do not have the right, power and authority to act on behalf of and bind your business, do not click on the button and do not install, download, access, or otherwise use the Software and cancel the loading of the Software.


1. DEFINITIONS.

“Software” means the mySmartApp™ add-on product for SAP® Lumira Designer and any software identified on the software download page, provided to you by Licensor under this EULA. Software may include any enhancements, updates, upgrades, derivatives or bug fixes to such product, service or technology and any documentation, add-ons, templates, or sample data sets provided by Licensor.


“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal evaluation, testing and production use of the Software. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.


“License Key” is a data string provided by “Licensor” to verify authorized access to the Software.


“License Certificate” is a data string provided by “Licensor” to verify the license attributes.


“Named User” means a unique user created on the SAP BusinessObjects BI Platform that the Software is installed on.


“Expiration Date” means the date, if any, after which the Software becomes inactive based on the provided license in Section 2. 


"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee.


"Software Specification" means the specification for the Software set out in the Documentation.


2. SOFTWARE LICENSE.  

Subject to your compliance with the terms and conditions of this EULA and any pre-requisite Software License Agreement, Licensor grants you a non-exclusive, non-sublicensable, nontransferable, revocable, limited license during the term of the EULA to install and use the Software, only in connection with and solely for the Internal Purposes.


The restrictions of the license are determined by the combination of License Key and License Certificate, which activate the license.

 

The Software is licensed on a Named User basis.


The following license types may be granted:


Trial

Demo

Subscription

Temporary

Enterprise


The License may be subject to an Expiration Date.


3. LICENSE FEES.  

Licenses of type Subscription, Temporary and Enterprise are subject to the payment of a license fee by Licensee to Licensor and applicable maintenance and support fees. Licensor shall invoice Licensee for such fees as applicable.  


4. LICENSE RESTRICTIONS.  

Except as expressly authorized in this EULA, you will not: 


    (i) access or use the Software for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); 


   (ii) copy the Software (except as required to run the Software and for reasonable backup purposes); 


  (iii) modify, adapt, or create derivative works of the Software; 


   (iv) sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software; 


    (v) use or offer any functionality of the Software on a service provider, service bureau, hosted, software as a service, or time sharing basis; 


   (vi) decompile, de-obfuscate, disassemble or reverse-engineer the Software, or attempt to decompile, de-obfuscate, disassemble or reverse-engineer the Software, or otherwise attempt to derive the Software source code, algorithms, methods or techniques used or embodied in the Software; 


  (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Software;


 (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings of Licensor from the Software; 


   (ix) interfere with or disrupt servers or networks connected to any website through which the Software is provided;


    (x) permit any third party to access or use the Software unless permitted by the License;


(xi) use the Software beyond the Expiration Date, at which point access to the Software will automatically be prevented.


5. SAP LICENSE. 

Licensee hereby acknowledges and agrees that use of the Software requires a fully functioning copy of SAP BusinessObjects Design Studio and acceptance of SAP’s license agreement for the same (the “SAP License"). Licensee is solely responsible for maintaining an environment that supports use of the Software. Licensee hereby agrees to indemnify and hold the company harmless from any and all violations of the SAP License, as amended. Licensee agrees to use the Software at its sole risk in accordance with this EULA and the SAP License.


6. SOURCE CODE. 

Nothing in this EULA shall give to the Licensee or any other person any right to access or use the Source Code or constitute any licence of the Source Code.


7. CONFIDENTIALITY. 

You agree to hold the Software (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information (“Confidential Information”), whether in oral or written form, confidential. Confidential Information may include information relating to features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this EULA. You may disclose Confidential Information to your employees, but only to the extent they have a need to know to use the Software and you have advised them that such information is Confidential. You agree to instruct any such employees in advance who will have access to the Software that they must comply with the restrictions set forth in this EULA.  


You shall have no obligation to maintain the confidentiality of any information which: 


 (a) is or becomes publicly available without breach of this EULA; 


 (b) is rightfully received by you from a third party without an obligation of confidentiality and without breach of this EULA; 


 (c) is developed independently by you without access to or use of the Confidential Information; or 


 (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA by you or your personnel, and will cooperate with Licensor in every reasonable way to help Licensor regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this EULA with respect to the proprietary rights or Confidential Information will cause Licensor irreparable injury for which there are inadequate remedies at law, and therefore, Licensor will be entitled to equitable relief in addition to all other remedies provided by this EULA or available at law or in equity.


8. TERM AND TERMINATION.  

This EULA will be effective from the earlier of (a) the date it is accepted by you and (b) the date on which you first installed, downloaded or accessed a copy of the Software and shall continue until terminated. This EULA may be terminated at any time by either party, with or without cause, effective upon notice of termination. This EULA will terminate automatically upon the end of the Expiration Date. The Software will stop functioning on the built-in Expiration Date. Upon termination, you will immediately cease all use of the Software and destroy the Software, or upon request by Licensor, return to Licensor the Software and other Confidential Information that are in your possession or control. Upon Licensor’s request, you will certify in writing that you have returned or destroyed all copies of the Software and Confidential Information. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 will survive termination of this EULA.


9. OWNERSHIP.  

Licensor and/or its licensors own all worldwide right, title and interest in and to the Software, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this EULA, Licensor does not grant you any intellectual property rights in the Software, and all right, title, and interest in and to all copies of the Software not expressly granted remain with Licensor, and/or its licensors. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the Software is licensed and not sold.


10. WARRANTY.  

The Licensor warrants that the Software as provided will conform in all material respects with the Software Specification.


11. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS.  

Licensee 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.


Except as expressly set forth in Section 10, the Software and Documentation are provided on an “AS IS” basis without any warranty, express or implied, including but not limited to, any implied warranties of merchantability, fitness for particular purpose, non-interference, non-infringement, informational content, system integration and any warranties arising from a course of usage or trade practice. The company does not represent or warrant that the Software meets Licensee’s requirements or will operate in the combination that licensee selects for use, or that the operation of the Software will be uninterrupted or error free, or that all defects in the Software will be corrected by Licensor.


12. NO RELIANCE.  

Licensor has no obligations about any forward-looking statements made in connection with or in the course of providing the Software. Forward-looking statements are statements regarding future Licensor events, product offerings, product performance, customer uses or the expected financial performance of Licensor. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. Licensor does not assume any obligation to update any forward-looking statements made during the Software project. In addition, any information about our roadmap outlines our general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this EULA or any contract or other commitment. Licensor undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those you are reviewing as a part of this Software.


13. LIMITATION OF LIABILITY. 

In no event will Licensor be liable to you for any special, indirect, incidental, consequential or punitive damages (including loss of use, data, or profits, business interruption, or costs of procuring substitute software) arising out of or in connection with this EULA or the use or performance of the Software, whether such liability arises from contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not licensor has been advised of the possibility of such loss or damage. The parties have agreed that these limitations will survive and apply even if any remedy is found to have failed of its essential purpose. Without limiting the foregoing, licensor will have no liability or responsibility for any business interruption or loss of data arising from the automatic termination of the license rights granted herein and any associated cessation of the software functions or any unanticipated or unscheduled downtime for any reason or any deletion, corruption or damage of data on or through the software. Licensee’s sole remedy in the event of breach of this EULA by Licensor or for any other claim related to the Software shall be termination of this EULA.


14. INDEMNIFICATION. 

You hereby agree to indemnify, hold harmless and defend Licensor, and its shareholders, officers, directors, employees and agents, from and against any and all third party actions, claims, damages, debts, demands, losses and liabilities, including reasonable attorney's fees, asserted against the Licensor and arising out of or relating to your breach of this EULA; and/or your use or misuse of the Software and/or Documentation.


15. GOVERNING LAW.  

This EULA shall be governed by and construed in accordance with the jurisdiction and laws of NSW, Australia, without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 


16. GENERAL.  


a. This EULA along with any additional terms incorporated herein by the referenced any pre-requisite Software License Agreement constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Software and Confidential Information and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. Oral agreements do not exist. This EULA is limited to the use of Software, Documentation and Confidential Information and as such, this EULA is separate from and shall have no effect on any other agreement you may have with Licensor;


b. Any waiver, modification or amendment of any provision of this EULA will be effective only if in writing and signed by duly authorized representatives of both parties;


c. All notices or reports which are required or may be given pursuant to this EULA shall be in writing and shall be deemed duly given when delivered to the respective addresses specified by either party;


d. Licensee may not assign or otherwise transfer any of its rights under this EULA without prior written consent of Licensor. If any provision of this EULA proves to be invalid, this will not affect any other provision of this EULA;


e. A waiver of any default hereunder or of any of the terms and conditions of this EULA shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The failure by either party to enforce any provisions of this EULA will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions; 


f. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this EULA invalid or unenforceable, the remaining provisions of the EULA will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.



Updated October 21, 2016