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Limitation of liability – You expressly understand and agree that we shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, resulting from (not limited to):
- the use or the inability to use the tutorial or software downloaded from this site;
- the cost of procurement of substitute products and services resulting from any product, data, information or services purchased or obtained or messages received or transactions entered into through or from this site;
- unauthorized access to or alteration of your transmissions of data;
- statements or conduct of any third party on the service; or
- any other matter relating to the product.
SOFTWARE AND ONLINE DOWNLOADS FROM THIS SITE
1. LICENCE SCOPE, PERMITTED USE AND RESTRICTIONS
Pursuant to the EULA and while it remains in force, the END USER is granted a non-exclusive, temporary and non-transferable right to use the SOFTWARE, as a basic module, for his own internal business, in terms that allow the END USER to install and use the SOFTWARE on a single computer that he owns or is under his control.
The right to use the SOFTWARE comprehends the right to access to any updates, including bug fixing, that may be made available by SIMUNE while the EULA remains in force.
Notwithstanding the foregoing, (i) any upgrade of the SOFTWARE; as well as (ii) any new functionalities that are marketed by SIMUNE as an additional and independent module to the basic module that is the subject of this EULA, fall out of the scope of the EULA and shall be subject to a separate license agreement.
For this purpose, any new version of the SOFTWARE that includes new functionalities or features other than those presented by the SOFTWARE in its current version will be considered an upgrade.
The END USER may not:
Modify or create any by-product from SOFTWARE or any documentation relating thereto that may be made available (such as user manual);
Attempt to decompile, disassemble, reverse engineer or attempt to derive SOFTWARE source code;
License, transfer, sell, lease, rent, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the SOFTWARE or make the SOFTWARE or any part thereof available to any third party;
Remove or alter any trademark, logo or any other notice, legend, symbol or label property contained in and/or integrated into SOFTWARE and/or into the physical media with which this is presented in its use; or
Registering or attempting to register in its name in any country in the world (i) the brand, distinguishing trademarks, logos and/or commercial names of SIMUNE or other signs confusingly similar to those of SIMUNE; and (ii) the SOFTWARE.
The END USER shall agree to be bound to copyright notices and additional legal terms and conditions found in any “ReadMe” file, release note or leaflet that accompanies the SOFTWARE. For United States Government END USERs, SOFTWARE and associated documentation are deemed to be “commercial computer software” and “commercial computer documentation”, respectively, pursuant to DFAR 227.7202 and FAR 12.212 (b), as applicable. Use, duplication or disclosure of the SOFTWARE and any derivative works, as defined by the Copyright Act of 1976 as amended, and any associated documentation or derivative works thereof, are subject to the restricted rights set forth in the DFAR and FAR above.
Unless otherwise agreed in writing, the license hereby granted shall be limited to the country in which the END USER has its registered office or place of business.
3. DURATION OF LICENCE AND TERMINATION
Depending on the option of license acquired by the END USER, the EULA may have the following durations:
“LICENCE FOR INDEFINITE TERM“, where the duration of the EULA shall commence upon installation of the SOFTWARE and shall remain in force for the entire duration of SIMUNE’s rights to the SOFTWARE. Notwithstanding the foregoing, said license shall be subjected to annual verification to be carried out in an automated basis, with the aim to confirm that END USER fully complies with the EULA.
“ANNUAL LICENSE“, where the duration of the EULA shall commence upon installation of the SOWTWARE and shall remain in force for an initial period of ONE (1) calendar year. This term may be extended for equal and successive periods of ONE (1) calendar year, provided that the END USER (i) requests it from SIMUNE or the DISTRIBUTORS before the end of the initial period or the last of the requested extensions; and (ii) has paid the corresponding renewal fee.
“BETA-TESTER LICENSE“, the terms of this license are regulated by the beta-tester agreement.
“TRIAL LICENSE“, where the duration of the EULA shall commence upon installation of the SOFTWARE and shall remain in force for a period of ONE (1) month.
“LICENCE FOR INDEFINITE TERM”, “ANNUAL LICENSE” and “BETA-TESTER LICENSE” require the signature of an acquisition contract / agreement. The SOFTWARE provided under the terms of “TRIAL LICENSE” does not require the signing of any contract / agreement.
In any case, the EULA shall be automatically terminated without the need for any notice (i) when the END USER fails to comply with any of the terms and conditions of the EULA; and (ii) when SIMUNE’s rights relating to the SOFTWARE are terminated for any reason.
Once the EULA is terminated, the END USER must cease use of the SOFTWARE and destroy any copies, in whole or in part, of the SOFTWARE that may have been made.
In cases where the END USER has acquired the right to use the SOFTWARE from a DISTRIBUTOR, if the Agreement entered into between SIMUNE and the DISTRIBUTOR is terminated, the EULA will remain in force in identical terms, SIMUNE being subrogated to the contractual position of the DISTRIBUTOR.
4. TECHNICAL REQUIREMENTS
SOFTWARE has been tested on Windows 10 (version 1903) onwards, Linux and macOS High Sierra 10.13.6 onwards. END USERS will be notified of any new requirements in advance.
The SOFTWARE requires an Internet connection and access to the SIMUNE server to verify and validate the EULA once a month. It will correspond to the END USER to provide the SOFTWARE with this access to Internet, being of its account any expenses associated to this performance.
If such verification and validation cannot be carried out, the right to use the SOFTWARE acquired by the END USER may be suspended or, if such a circumstance persists, terminated without prior notice.
5. WARRANTY AND LIABILITY
SIMUNE guarantees the correct functioning of the SOFTWARE, and undertakes to solve all potential errors associated to defects in its development acknowledged by SIMUNE.
The above-mentioned error correcting of the SOFTWARE shall be understood to be limited to the technical standard of maintenance of software IEEE 1219-1998 (modifications made to a software product after its delivery to correct discovered faults), therefore excluding any adaptive or evolutionary maintenance work.
Any new development of the SOFTWARE required by the END USER to include new features or functionalities must be requested by the END USER outside of the EULA and be the subject of an additional agreement between the END USER and SIMUNE.
In any case, any errors or defects that derive from causes other than the internal errors of the code are excluded from the warranty subject to this Clause. This exclusion comprehends, among others, errors or defects caused by the END USER’S actions, as well as those caused by means external to the SOFTWARE, such as the END USER’S physical equipment on which the SOFTWARE and/or other software other than the SOFTWARE has been installed.
Furthermore, any errors of the SOFTWARE that have already been corrected in an update made available to the END USER are excluded from the above-mentioned warranty.
Any type of alteration or modification of the SOFTWARE carried out by personnel other than SIMUNE and/or the DISTRIBUTORS, without their authorization, will automatically result in the loss of the warranty.
The END USER accepts that the SOFTWARE is provided for use “as is” and neither SIMUNE nor its DISTRIBUTORS guarantee that it is suitable for the particular purposes pursued by the END USER. Consequently, no responsibility can be demanded from SIMUNE or its DISTRIBUTORS when, apart from the technical specifications and functionalities defined by them, the SOFTWARE is not suitable for the END USER’S specific needs.
SIMUNE may temporarily interrupt accessibility to its server for security reasons or maintenance requirements, without being held liable whatsoever for such measures.
Finally, the liability of SIMUNE and its DISTRIBUTORS for all concepts that are directly attributable to the use of the SOFTWARE may not exceed the amount equivalent to the price actually received by them in return for the right to use the EULA.
6. TECHNICAL SUPPORT AND MAINTENANCE
The END USER will have technical support and maintenance service provided by SIMUNE according to the type of license and support-&-maintenance package that END USER has purchased.
The terms under which technical support and maintenance services are provided are detailed in a separate contractual document, to be signed by the END USER for such purpose.
7. INTELLECTUAL PROPERTY
Except for the rights granted under this EULA, SIMUNE shall retain all right, title and interest in and to any and all Intellectual Property Rights on the SOFTWARE.
Indeed, the SOFTWARE and the corresponding rights of exploitation of the Intellectual Property related to it are owned by SIMUNE and are protected by the Spanish Laws of Intellectual Property and by the provisions of the applicable international treaties.
The formalisation of the EULA does not imply any transfer in favour of the END USER of the rights of exploitation of the Intellectual Property to the SOFTWARE, which, without prejudice to the right of use granted by virtue of the EULA, will continue to be the exclusive property of SIMUNE.
8. DATA PROTECTION
8.1. Processing of END USER’s Personal Data.
Personal data provided by the END USER prior to the subscribing this EULA and those others that, from now on, are provided to SIMUNE or its DISTRIBUTORS within the framework of its execution (e.g. name and surname, ID number, address, e-mail account, bank details, etc.), will be processed by SIMUNE as Data Controller, according to the GDPR and with the sole purpose of facilitating the adequate execution of the EULA and on the legal basis of the same.
Such Personal Data will only be transferred to public entities and/or bodies in compliance with the legal obligations that correspond to SIMUNE.
SIMUNE may only transfer END USER´s personal data to public entities and/or bodies in compliance with its legal obligations and will keep the personal data for the time strictly necessary for the proper execution of the EULA and, when necessary, for the additional conservation period that said entity must observe in order to comply with its legal obligations.
The END USER shall have the right to (i) request access to their personal data, as well as its rectification, suppression, limitation of its processing, to the portability of the same or to oppose its processing, when appropriate, by written request to SIMUNE, at Avda. Tolosa, nº 76, 20018 Donostia-San Sebastián (Spain); and (ii) file a complaint with the Spanish Data Protection Agency or any other competent Control Authority, especially when they have not been satisfied with the exercise of their rights.
8.2. Personal Data processing on behalf of the END USER.
Use of the SOFTWARE does not entail the processing of personal data by SIMUNE and/or the DISTRIBUTOR on behalf of the END USER.
9. FORCE MAJEURE
If either party is unable to fulfil all or part of its contractual obligations due to force majeure, the fulfilment of such obligations shall be suspended for the time and to the extent that such force majeure requires.
For these purposes, force majeure shall be deemed to exist when any extraordinary, unforeseeable or unavoidable circumstance or event occurs that is beyond the control of the parties, such as strikes of any kind, fires, floods, lack of driving force, lack or shortage of raw materials, breakdowns or accidents at the parties’ facilities, pandemics, declaration of states of alarm or similar and any others that arise after the signing of the EULA and that make it temporarily or, where appropriate, permanently impossible or excessively onerous for the party claiming it to comply with its obligations.
When the case of force majeure lasts for more than 6 months or makes it definitively impossible for the party suffering from such a case of force majeure to comply with its obligations, the other party may terminate the EULA, by means of reliable notification, without prior notice and without any right to compensation for damages for the parties.
10. APPLICABLE LAW AND JURISDICTION
The license shall be governed, construed and applied in accordance with Spanish law.
Both parties will expressly and irrevocably submit to the Courts and Tribunals of Donostia-San Sebastián to resolve any dispute that may arise, parties in relation to the validity, effectiveness, interpretation, compliance, termination or cancellation of the EULA, expressly waiving any other jurisdiction that may apply to them.