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END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT, PLEASE DISCONTINUE USAGE. IF YOU DO AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ON BEHALF OF YOURSELF, YOU MAY CONTINUE USAGE.
This END USER LICENSE AGREEMENT ("EULA") is by and between you ("Licensee") and Aviar B.V., ("Licensor"), and is effective as of the date of Licensee's acceptance thereof. In consideration of good, valuable and mutual consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows:
1. Definitions
1.1. "Add-on Software" means any third party software that is intended for use with the Software that is not part of the Software and is subject to contractual terms required by the licensor of such Add-on Software.
1.2. "Documentation" means all documents, made available by Licensor to Licensee pertaining to the Software, including all amendments or updates thereto made or provided by or on behalf of Licensor. Documentation may specify the requirements for hardware to run the Software.
1.3. "Website" means the website at www.aviar.nl or at any successor uniform resource locator designated by Licensor.
1.4. "Open Source Software" means software for which the underlying source code is publicly available under licensing restrictions that provide a user the right to use, create derivatives of and/or redistribute the software, and which may include certain conditions on use such as an attribution requirement or a requirement that the user provide or offer the source code, derivatives and applications thereof, on the same or similar terms, to anyone to whom is distributed user's software that includes or is based on such software.
1.5. "Software" means all or any part of the Licensor’s computer program including, without limitation: (1) the operating executable software; (2) any related instructions or statements in machine-readable form; (3) any database in machine-readable form; and (4) any and all copies of the foregoing. This EULA does not provide Licensee with any rights related to any source code.
1.6. "Term" means the period of time commencing on the date of Licensee's agreement to be bound by the terms and conditions of this EULA and continuing in effect in perpetuity, unless this EULA is otherwise terminated as provided in Section 10.
1.7. "Upgrade", "Upgrade(s)" or "Upgrades" means a new release, a new version, an upgrade of the Software released commercially by Licensor and identified by a new release number, new version number, or new name.
1.8. "Use," as relates to the Software, whether in initial capitalized form or not and including any form of such word as a noun or a verb, means: (1) copying of same into a Machine for processing; (2) storing of same in a Machine; (3) display of same on a Machine; and/or (4) processing of same by a Machine.
1.9. "Warranty Period" has the meaning provided in Section 7.1.1 of this EULA.
2. License Grant
2.1. Subject to and conditioned on Licensee’s compliance with the terms and conditions of this EULA and the Documentation, and payment of the applicable license fee, Licensor hereby grants Licensee a nontransferable, nonsublicenseable, nonexclusive license during the Term of this EULA to use the Software anywhere in the world, but only on no more than one Machine; and only by no more than one user at any one time and for purposes of personal/ consumer entertainment.
2.2. Consideration. Licensee shall pay to Licensor the license fee as set forth by Licensor.
3. Activation, Back-ups and Returns.
Upon receipt of the consideration, Licensor makes the Software available for download and notify Licensee (through email or pop-up notification) that the Software is available. Once you started to download the Software, you cannot ask for the refund of the license fees unless the Software has material defects that prevent use of the Software.
3.1. One Back-up Copy. Licensee may make one copy of the Software for backup purposes only, provided that such copy shall include the following marking and copyright notice:
"Aviar Airline Flight Attendant Simulator® Copyright © 2019-2022, AVIAR B.V. License terms apply. All Rights Reserved."
3.2. Returns. Licensee may return the Software for whatever reason, or no reason, at any time within 14 days of the date of payment, in accordance with Licensor's return policy. Upon such return, Licensee shall return or destroy all copies of the Software, and all tangible embodiments thereof.
4. License Restrictions.
Licensee shall not do or allow to be done, either directly or indirectly, any the following:
4.1. Reverse Engineer. Reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-readable form (e.g., source code).
4.2. Modify. Modify, adapt or translate the Software, including without limitation any watermarks embedded in the Software or on the Documentation identifying the Software and Documentation as licensed for specific use only, and write or develop any derivative software based upon the Software.
4.3. Service bureau. Use the Software to provide services on any ASP, software-as-a-service or service bureau basis.
4.4. Publish. Publish or otherwise disclose the Software for others to use, copy or exploit the Software.
4.5. Transfer. Sell, assign, sublicense, rent, lease, lend, subcontract, delegate or otherwise transfer, either in whole or in part, the Software, this EULA or any right or obligation of Licensee under this EULA.
4.6. Transmit. Electronically transmit the Software from one computer to another or over a network, or use the Software in connection with any hardware or software that changes the number of computers or users that directly access or use the Software, in any manner that would avoid any limitation or restriction in this EULA.
4.7. Markings. Alter, remove or obscure any marking or notice, if any, of Licensor's intellectual property rights included in or on the Software or Documentation.
4.8. Non-Licensed Use. Use the Software outside the scope of this EULA or Documentation.
5. Ownership and Rights
5.1. Retention of Rights. This EULA does not constitute, and shall not be deemed to constitute, a transfer, assignment or any other form of alienation by Licensor of any of Licensor's rights, title, and interests, either in whole or in part, in the Software or in any intellectual property included in the Software, including without limitation ownership and title. Licensor retains all rights not specifically granted to Licensee under this EULA.
5.2. No Implied Rights. The Software is provided to Licensee solely for the purpose under the express terms of the licenses granted in this EULA. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel or otherwise, to Licensee any intellectual property rights or other right, title or interest in or to any of the Software.
5.3. Open Source Software. Certain third party Open Source Software may be currently incorporated in and/or required to run the Software. LICENSEE SHALL READ AND ABIDE BY THE APPLICABLE LICENSE AGREEMENT FOR SUCH OPEN SOURCE SOFTWARE.
6. Maintenance, Support and Upgrades
6.1. No Further Obligations. Licensor is not responsible for and shall not owe any obligation to Licensee to provide any additional software, or any translations, maintenance, support, Upgrades, supplements, improvements or any Add-on Software to the Software or Documentation.
6.2. Support Services. If it is specified in the Website, Licensor may provide to Licensee the Support Services. Licensee is not required to purchase Licensor's Support Services.
7. Licensor Warranty and Indemnity
7.1. Limited Warranty.
7.1.1. Licensor warrants that, for a period of sixty (60) days after the date of delivery of the Software (the "Warranty Period"), the Software as delivered, and when installed on hardware meeting requirements set forth in the Documentation, shall perform substantially in accordance with the functions described in the Documentation.
7.1.2. Warranty hereunder does not cover (1) insignificant defects that do not prevent use of the Software, (2) Software failures due to inherent deficiencies or incompatibilities in operating systems, third party software or hardware, (3) damage resulting from accident, abuse or misapplication, (4) any defects or performance issues based on use of the Software in combination with other software, devices or services, where such defects, failures or damages would not have occurred from the normal use for which the Software was intended apart from such use in combination with other software, devices or services, and (5) any harm or injury caused, including appearance of VR sickness (e.g., headache, nausea, vomiting, common motion sickness, mental disorders).
7.2. In the event of a claim that the Software is in breach of this Section 7.1, Licensee shall (i) give Licensor prompt written notice of such claim and (ii) allow Licensor reasonable opportunities to remedy the claim. If Licensor is not able to remedy the claim, or after such remedy the Software still fails to meet the warranty stated in this Section 7.1, including its exclusions, Licensee may return the Software and Licensor shall refund the consideration received by Licensor from Licensee in respect of that Software.
7.2.1. Section 7.1 states Licensor's entire obligation to Licensee regarding claims of breach of warranty.
7.3. DISCLAIMERS. OTHER THAN AS PROVIDED IN SECTIONS 7.1 OF THIS EULA, THE SOFTWARE AND DOCUMENTATION AND ANY SERVICES ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULT IS WITH THE LICENSEE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET USE REQUIREMENTS, DEMONSTRATE OR REFLECT BEST OPERATING OR STANDARD OPERATING PROCEDURES, OR OPERATE UNINTERRUPTED OR ERROR.FREE OR ACHIEVE ANY INTENDED RESULT OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE. LICENSOR DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY AND ALL WARRANTIES AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OF THE SOFTWARE AND DOCUMENTATION, AND AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS. LICENSOR DISCLAIMS ANY AND ALL REPRESENTATIONS RELATING TO THIRD PARTY OPEN SOURCE SOFTWARE WHICH MAY BE EMBEDDED IN THE SOFTWARE.
8. Remedy
8.1. Exclusive Remedy. Licensee's exclusive remedy and Licensor's entire liability for breach of this EULA shall be limited, at Licensor's sole discretion, to: (a) replacement of any defective Software or the Documentation; or (b) refund of the consideration paid to Licensor as provided in this EULA in accordance with Licensor's refund policy.
8.2. Limitations and Exclusions.
8.2.1. Licensor's liability for any and all claims, costs, damages, losses, liability or expenses from any cause whatsoever related to this EULA, the Software or the Documentation, any use thereof or any products or services derived therefrom, shall be limited to the consideration received by Licensor from Licensee under this EULA.
8.2.2. In no event shall Licensor be liable for any damages caused by breach of this EULA by Licensee or any of their respective directors, officers, employees, representatives, agents, guests or invitees.
8.2.3. Licensor shall not be liable for any indirect, special, incidental, punitive or consequential damages, including without limitation loss of revenue or profits, loss of data, loss of utilization, business interruption, loss of business or opportunities, regardless of whether Licensor knows of or has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose. Licensor shall not be liable for any damages based on any third party claim.
8.2.4. Breach by Licensee of any provision of Section 3 and/or 4 of this EULA shall render void without requirement of notice from Licensor, any and all warranties and indemnity obligations to the breaching party, and Licensor shall not be liable for any claims, costs, damages, losses, liability or expenses from any cause whatsoever under this EULA to such breaching party or any director, officer, employee, representative, agent, guest or invitee thereof.
8.2.5. All limitations shall apply regardless of the claim and regardless of the form of action.
9. Licensee Responsibility and Indemnity
9.1. Responsibility. Licensee shall have the sole and exclusive responsibility for: (1) selection of the Software to achieve its and their intended results; (2) the installation of the Software; (3) the use of the Software; (4) the results obtained from the Software; and (5) the selection and use of, and the results obtained from, any other software, devices or services used with the Software. Licensee shall pay directly or reimburse Licensor for all taxes, assessments, permits and fees which are, or may be in Licensor's reasonable opinion, levied upon the Licensee's execution or acceptance of this EULA or use of the Software, exclusive of any income taxes owed by Licensor on its net income.
9.2. Indemnification. Licensee shall indemnify and hold Licensor and each of its directors, officers, employees and agents harmless from and against any and all claims or remedies, suits, actions, liabilities and damages, whether in tort (and whether or not arising from the negligence of licensor), in contract or otherwise, including costs and expenses and attorney's fees incident thereto, which may be suffered by, accrued against, charged to or recoverable from Licensor or any of its directors, officers, employees and agents relating to: (1) Licensee's breach of this EULA; (2) Licensor's enforcement of Licensor's rights under this EULA; (3) harm, injury to or death of any person or loss or damage to property (tangible or intangible) arising from (but not limited to) use of the Software or the Documentation, or any products or services derived therefrom; (4) claims that any Add-on Software created or used by Licensee infringes a third party’s intellectual property rights; and (5) Use of the Software in combination with other software, devices or services apart from the normal use for which the Software was intended.
10. Termination.
10.1. For Breach. Either Licensor or Licensee may terminate this EULA for failure of the other to comply with any of the terms and conditions of this EULA. In which case:
10.1.1. All licenses and rights granted by Licensor under this EULA shall terminate;
10.1.2. Licensee shall deliver to Licensor or destroy all copies of the Software and Documentation, and all tangible embodiments thereof. Upon request of Licensor, Licensee shall provide to Licensor a written certification signed by Licensee certifying such delivery or destruction; and
10.1.3. The following provisions of this EULA shall survive: Sections 1, 3, 5, 7, 8, 9, 10, 12.
11. Compliance.
Licensee shall comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including, without limitation, the export control rules and regulations in the USA and in the EU, as the same may be amended from time to time.
12. Miscellaneous.
12.1. Waiver. Any waiver of any breach of this EULA shall not be deemed to constitute a waiver of any subsequent breach of the same or any other provision of this EULA.
12.2. Severability. If any term, condition, or provision in this EULA is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed herein. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.3. Entire Agreement. This EULA constitutes the entire agreement of Licensor and Licensee with respect to the subject matter of this EULA, superseding in all respects any and all prior proposals, negotiations, understandings, writings, communications and agreements, whether oral or written, between Licensor and Licensee. If there is a conflict between this EULA and any exhibit or appendix attached hereto, such exhibit or appendix shall prevail. If there is a conflict between this EULA and any license agreement imbedded in the Software or any click-through license agreement entered into by Licensee in connection with the download or installation of the Software, this EULA shall prevail. This EULA may be amended only by a written instrument executed by both Licensor and Licensee.
12.4. Interpretation. Headings in this EULA are for convenience only and shall not be deemed to be legally binding text. Singular and plural terms shall be deemed interchangeable, unless the context otherwise requires.
12.5. Applicable Law and Jurisdiction. THIS EULA SHALL BE GOVERNED BY THE LAWS OF THE NETHERLANDS, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT MAY DICTATE A CONTRARY RESULT. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AND ANY ADAPTATIONS THEREOF ADOPTED BY ANY JURISDICTION, SHALL NOT APPLY. WITH RESPECT TO ACTIONS ARISING UNDER THIS EULA, LICENSOR AND LICENSEE SHALL (1) SUBMIT TO THE JURISDICTION OF ANY COURT SEATED IN THE NETHERLANDS; AND (2) WAIVE ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
12.6. Limitation on Actions. No action seeking damages or other compensation, regardless of the form of such action or the form or extent of such damages or compensation, arising out of this EULA may be brought more than two (2) years after such cause of action has arisen.
12.7. Notices. Any notice given pursuant to this EULA may be given by: (1) personal delivery;
(2) first class registered mail, prepaid return receipt requested; (3) deposit with a recognized courier company, prepaid, return receipt requested; or (4) facsimile transmission; in each case to the last address or fax number, as the case may be, of which the sending party has received actual or constructive notice.
Any such notice shall be deemed to be received: (i) when delivered, if given pursuant to clause (1) of the previous sentence; (ii) on the earlier of (a) the fourth day after deposit, or (b) at the time verification is made of delivery, if given pursuant to clauses (2) or (3) of the previous sentence; or (iii) when received, if given pursuant to clause (4) of the previous sentence.
12.8. Add-on Software. Add-on Software may be included with the Software when received by Licensee. Add-on Software is not part of the Licensed Software and is subject to separate terms and conditions as set forth by the licensor of such Add-On Software. Licensor shall not have any responsibility for any aspect of the Add-on Software.
Licensor: AVIAR B.V. Joop Geesinkweg 501, 1114AB, Amsterdam-Duivendrecht, the Netherlands, RSIN number 8597.87.163, KvK number 74143247, Email: hi@aviar.nl
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT, PLEASE DISCONTINUE USAGE. IF YOU DO AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ON BEHALF OF YOURSELF, YOU MAY CONTINUE USAGE.
This END USER LICENSE AGREEMENT ("EULA") is by and between you ("Licensee") and Aviar B.V., ("Licensor"), and is effective as of the date of Licensee's acceptance thereof. In consideration of good, valuable and mutual consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows:
1. Definitions
1.1. "Add-on Software" means any third party software that is intended for use with the Software that is not part of the Software and is subject to contractual terms required by the licensor of such Add-on Software.
1.2. "Documentation" means all documents, made available by Licensor to Licensee pertaining to the Software, including all amendments or updates thereto made or provided by or on behalf of Licensor. Documentation may specify the requirements for hardware to run the Software.
1.3. "Website" means the website at www.aviar.nl or at any successor uniform resource locator designated by Licensor.
1.4. "Open Source Software" means software for which the underlying source code is publicly available under licensing restrictions that provide a user the right to use, create derivatives of and/or redistribute the software, and which may include certain conditions on use such as an attribution requirement or a requirement that the user provide or offer the source code, derivatives and applications thereof, on the same or similar terms, to anyone to whom is distributed user's software that includes or is based on such software.
1.5. "Software" means all or any part of the Licensor’s computer program including, without limitation: (1) the operating executable software; (2) any related instructions or statements in machine-readable form; (3) any database in machine-readable form; and (4) any and all copies of the foregoing. This EULA does not provide Licensee with any rights related to any source code.
1.6. "Term" means the period of time commencing on the date of Licensee's agreement to be bound by the terms and conditions of this EULA and continuing in effect in perpetuity, unless this EULA is otherwise terminated as provided in Section 10.
1.7. "Upgrade", "Upgrade(s)" or "Upgrades" means a new release, a new version, an upgrade of the Software released commercially by Licensor and identified by a new release number, new version number, or new name.
1.8. "Use," as relates to the Software, whether in initial capitalized form or not and including any form of such word as a noun or a verb, means: (1) copying of same into a Machine for processing; (2) storing of same in a Machine; (3) display of same on a Machine; and/or (4) processing of same by a Machine.
1.9. "Warranty Period" has the meaning provided in Section 7.1.1 of this EULA.
2. License Grant
2.1. Subject to and conditioned on Licensee’s compliance with the terms and conditions of this EULA and the Documentation, and payment of the applicable license fee, Licensor hereby grants Licensee a nontransferable, nonsublicenseable, nonexclusive license during the Term of this EULA to use the Software anywhere in the world, but only on no more than one Machine; and only by no more than one user at any one time and for purposes of personal/ consumer entertainment.
2.2. Consideration. Licensee shall pay to Licensor the license fee as set forth by Licensor.
3. Activation, Back-ups and Returns.
Upon receipt of the consideration, Licensor makes the Software available for download and notify Licensee (through email or pop-up notification) that the Software is available. Once you started to download the Software, you cannot ask for the refund of the license fees unless the Software has material defects that prevent use of the Software.
3.1. One Back-up Copy. Licensee may make one copy of the Software for backup purposes only, provided that such copy shall include the following marking and copyright notice:
"Aviar Airline Flight Attendant Simulator® Copyright © 2019-2022, AVIAR B.V. License terms apply. All Rights Reserved."
3.2. Returns. Licensee may return the Software for whatever reason, or no reason, at any time within 14 days of the date of payment, in accordance with Licensor's return policy. Upon such return, Licensee shall return or destroy all copies of the Software, and all tangible embodiments thereof.
4. License Restrictions.
Licensee shall not do or allow to be done, either directly or indirectly, any the following:
4.1. Reverse Engineer. Reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-readable form (e.g., source code).
4.2. Modify. Modify, adapt or translate the Software, including without limitation any watermarks embedded in the Software or on the Documentation identifying the Software and Documentation as licensed for specific use only, and write or develop any derivative software based upon the Software.
4.3. Service bureau. Use the Software to provide services on any ASP, software-as-a-service or service bureau basis.
4.4. Publish. Publish or otherwise disclose the Software for others to use, copy or exploit the Software.
4.5. Transfer. Sell, assign, sublicense, rent, lease, lend, subcontract, delegate or otherwise transfer, either in whole or in part, the Software, this EULA or any right or obligation of Licensee under this EULA.
4.6. Transmit. Electronically transmit the Software from one computer to another or over a network, or use the Software in connection with any hardware or software that changes the number of computers or users that directly access or use the Software, in any manner that would avoid any limitation or restriction in this EULA.
4.7. Markings. Alter, remove or obscure any marking or notice, if any, of Licensor's intellectual property rights included in or on the Software or Documentation.
4.8. Non-Licensed Use. Use the Software outside the scope of this EULA or Documentation.
5. Ownership and Rights
5.1. Retention of Rights. This EULA does not constitute, and shall not be deemed to constitute, a transfer, assignment or any other form of alienation by Licensor of any of Licensor's rights, title, and interests, either in whole or in part, in the Software or in any intellectual property included in the Software, including without limitation ownership and title. Licensor retains all rights not specifically granted to Licensee under this EULA.
5.2. No Implied Rights. The Software is provided to Licensee solely for the purpose under the express terms of the licenses granted in this EULA. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel or otherwise, to Licensee any intellectual property rights or other right, title or interest in or to any of the Software.
5.3. Open Source Software. Certain third party Open Source Software may be currently incorporated in and/or required to run the Software. LICENSEE SHALL READ AND ABIDE BY THE APPLICABLE LICENSE AGREEMENT FOR SUCH OPEN SOURCE SOFTWARE.
6. Maintenance, Support and Upgrades
6.1. No Further Obligations. Licensor is not responsible for and shall not owe any obligation to Licensee to provide any additional software, or any translations, maintenance, support, Upgrades, supplements, improvements or any Add-on Software to the Software or Documentation.
6.2. Support Services. If it is specified in the Website, Licensor may provide to Licensee the Support Services. Licensee is not required to purchase Licensor's Support Services.
7. Licensor Warranty and Indemnity
7.1. Limited Warranty.
7.1.1. Licensor warrants that, for a period of sixty (60) days after the date of delivery of the Software (the "Warranty Period"), the Software as delivered, and when installed on hardware meeting requirements set forth in the Documentation, shall perform substantially in accordance with the functions described in the Documentation.
7.1.2. Warranty hereunder does not cover (1) insignificant defects that do not prevent use of the Software, (2) Software failures due to inherent deficiencies or incompatibilities in operating systems, third party software or hardware, (3) damage resulting from accident, abuse or misapplication, (4) any defects or performance issues based on use of the Software in combination with other software, devices or services, where such defects, failures or damages would not have occurred from the normal use for which the Software was intended apart from such use in combination with other software, devices or services, and (5) any harm or injury caused, including appearance of VR sickness (e.g., headache, nausea, vomiting, common motion sickness, mental disorders).
7.2. In the event of a claim that the Software is in breach of this Section 7.1, Licensee shall (i) give Licensor prompt written notice of such claim and (ii) allow Licensor reasonable opportunities to remedy the claim. If Licensor is not able to remedy the claim, or after such remedy the Software still fails to meet the warranty stated in this Section 7.1, including its exclusions, Licensee may return the Software and Licensor shall refund the consideration received by Licensor from Licensee in respect of that Software.
7.2.1. Section 7.1 states Licensor's entire obligation to Licensee regarding claims of breach of warranty.
7.3. DISCLAIMERS. OTHER THAN AS PROVIDED IN SECTIONS 7.1 OF THIS EULA, THE SOFTWARE AND DOCUMENTATION AND ANY SERVICES ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULT IS WITH THE LICENSEE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET USE REQUIREMENTS, DEMONSTRATE OR REFLECT BEST OPERATING OR STANDARD OPERATING PROCEDURES, OR OPERATE UNINTERRUPTED OR ERROR.FREE OR ACHIEVE ANY INTENDED RESULT OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE. LICENSOR DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY AND ALL WARRANTIES AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OF THE SOFTWARE AND DOCUMENTATION, AND AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS. LICENSOR DISCLAIMS ANY AND ALL REPRESENTATIONS RELATING TO THIRD PARTY OPEN SOURCE SOFTWARE WHICH MAY BE EMBEDDED IN THE SOFTWARE.
8. Remedy
8.1. Exclusive Remedy. Licensee's exclusive remedy and Licensor's entire liability for breach of this EULA shall be limited, at Licensor's sole discretion, to: (a) replacement of any defective Software or the Documentation; or (b) refund of the consideration paid to Licensor as provided in this EULA in accordance with Licensor's refund policy.
8.2. Limitations and Exclusions.
8.2.1. Licensor's liability for any and all claims, costs, damages, losses, liability or expenses from any cause whatsoever related to this EULA, the Software or the Documentation, any use thereof or any products or services derived therefrom, shall be limited to the consideration received by Licensor from Licensee under this EULA.
8.2.2. In no event shall Licensor be liable for any damages caused by breach of this EULA by Licensee or any of their respective directors, officers, employees, representatives, agents, guests or invitees.
8.2.3. Licensor shall not be liable for any indirect, special, incidental, punitive or consequential damages, including without limitation loss of revenue or profits, loss of data, loss of utilization, business interruption, loss of business or opportunities, regardless of whether Licensor knows of or has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose. Licensor shall not be liable for any damages based on any third party claim.
8.2.4. Breach by Licensee of any provision of Section 3 and/or 4 of this EULA shall render void without requirement of notice from Licensor, any and all warranties and indemnity obligations to the breaching party, and Licensor shall not be liable for any claims, costs, damages, losses, liability or expenses from any cause whatsoever under this EULA to such breaching party or any director, officer, employee, representative, agent, guest or invitee thereof.
8.2.5. All limitations shall apply regardless of the claim and regardless of the form of action.
9. Licensee Responsibility and Indemnity
9.1. Responsibility. Licensee shall have the sole and exclusive responsibility for: (1) selection of the Software to achieve its and their intended results; (2) the installation of the Software; (3) the use of the Software; (4) the results obtained from the Software; and (5) the selection and use of, and the results obtained from, any other software, devices or services used with the Software. Licensee shall pay directly or reimburse Licensor for all taxes, assessments, permits and fees which are, or may be in Licensor's reasonable opinion, levied upon the Licensee's execution or acceptance of this EULA or use of the Software, exclusive of any income taxes owed by Licensor on its net income.
9.2. Indemnification. Licensee shall indemnify and hold Licensor and each of its directors, officers, employees and agents harmless from and against any and all claims or remedies, suits, actions, liabilities and damages, whether in tort (and whether or not arising from the negligence of licensor), in contract or otherwise, including costs and expenses and attorney's fees incident thereto, which may be suffered by, accrued against, charged to or recoverable from Licensor or any of its directors, officers, employees and agents relating to: (1) Licensee's breach of this EULA; (2) Licensor's enforcement of Licensor's rights under this EULA; (3) harm, injury to or death of any person or loss or damage to property (tangible or intangible) arising from (but not limited to) use of the Software or the Documentation, or any products or services derived therefrom; (4) claims that any Add-on Software created or used by Licensee infringes a third party’s intellectual property rights; and (5) Use of the Software in combination with other software, devices or services apart from the normal use for which the Software was intended.
10. Termination.
10.1. For Breach. Either Licensor or Licensee may terminate this EULA for failure of the other to comply with any of the terms and conditions of this EULA. In which case:
10.1.1. All licenses and rights granted by Licensor under this EULA shall terminate;
10.1.2. Licensee shall deliver to Licensor or destroy all copies of the Software and Documentation, and all tangible embodiments thereof. Upon request of Licensor, Licensee shall provide to Licensor a written certification signed by Licensee certifying such delivery or destruction; and
10.1.3. The following provisions of this EULA shall survive: Sections 1, 3, 5, 7, 8, 9, 10, 12.
11. Compliance.
Licensee shall comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including, without limitation, the export control rules and regulations in the USA and in the EU, as the same may be amended from time to time.
12. Miscellaneous.
12.1. Waiver. Any waiver of any breach of this EULA shall not be deemed to constitute a waiver of any subsequent breach of the same or any other provision of this EULA.
12.2. Severability. If any term, condition, or provision in this EULA is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed herein. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.3. Entire Agreement. This EULA constitutes the entire agreement of Licensor and Licensee with respect to the subject matter of this EULA, superseding in all respects any and all prior proposals, negotiations, understandings, writings, communications and agreements, whether oral or written, between Licensor and Licensee. If there is a conflict between this EULA and any exhibit or appendix attached hereto, such exhibit or appendix shall prevail. If there is a conflict between this EULA and any license agreement imbedded in the Software or any click-through license agreement entered into by Licensee in connection with the download or installation of the Software, this EULA shall prevail. This EULA may be amended only by a written instrument executed by both Licensor and Licensee.
12.4. Interpretation. Headings in this EULA are for convenience only and shall not be deemed to be legally binding text. Singular and plural terms shall be deemed interchangeable, unless the context otherwise requires.
12.5. Applicable Law and Jurisdiction. THIS EULA SHALL BE GOVERNED BY THE LAWS OF THE NETHERLANDS, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT MAY DICTATE A CONTRARY RESULT. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AND ANY ADAPTATIONS THEREOF ADOPTED BY ANY JURISDICTION, SHALL NOT APPLY. WITH RESPECT TO ACTIONS ARISING UNDER THIS EULA, LICENSOR AND LICENSEE SHALL (1) SUBMIT TO THE JURISDICTION OF ANY COURT SEATED IN THE NETHERLANDS; AND (2) WAIVE ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
12.6. Limitation on Actions. No action seeking damages or other compensation, regardless of the form of such action or the form or extent of such damages or compensation, arising out of this EULA may be brought more than two (2) years after such cause of action has arisen.
12.7. Notices. Any notice given pursuant to this EULA may be given by: (1) personal delivery;
(2) first class registered mail, prepaid return receipt requested; (3) deposit with a recognized courier company, prepaid, return receipt requested; or (4) facsimile transmission; in each case to the last address or fax number, as the case may be, of which the sending party has received actual or constructive notice.
Any such notice shall be deemed to be received: (i) when delivered, if given pursuant to clause (1) of the previous sentence; (ii) on the earlier of (a) the fourth day after deposit, or (b) at the time verification is made of delivery, if given pursuant to clauses (2) or (3) of the previous sentence; or (iii) when received, if given pursuant to clause (4) of the previous sentence.
12.8. Add-on Software. Add-on Software may be included with the Software when received by Licensee. Add-on Software is not part of the Licensed Software and is subject to separate terms and conditions as set forth by the licensor of such Add-On Software. Licensor shall not have any responsibility for any aspect of the Add-on Software.
Licensor: AVIAR B.V. Joop Geesinkweg 501, 1114AB, Amsterdam-Duivendrecht, the Netherlands, RSIN number 8597.87.163, KvK number 74143247, Email: hi@aviar.nl