Version 2.2 2023-05-12
This End User License Agreement (“EULA” or “Agreement”) is a legal agreement between the Licensee (the legal entity represented, “Licensee”, or “End User” and Kiona Sweden AB, reg. no. 556734-6738, with registered address Gustavlundsvägen 137, 167 51 Bromma, Sweden (hereinafter referred to as “Kiona”, or “Licensor”), for the software “Web Port”, which includes computer software, options and addons related to the Software, services, associated media, user manual, printed materials and electronic documentation as well as all modifications, updates, upgrades, new version or releases and derivative works to the foregoing (hereinafter also referred to as “Software”).
LISENSEE AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS EULA, INCLUDING ADDENDUMS OR AMENDMENTS WHICH MAY ACCOMPANY THE SOFTWARE, BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE. IF LICENSEE DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE.
1.1 Web Port License (or “License”), is a Software for on-site installations and used by a Licensee, procured either through the License Certificate (in most cases on the Kiona web-site Market Place) or Purchase Order (in most cases procurement through Kiona Support and Help Desk).
1.2 Licensee (“End User” or “Slutkund”), is a real estate owner company, with company data listed in the License Certificate or in a Purchase Order.
1.3 Partner, is a company procuring Web Port products to transfer it to a Licensee. If not specifically written, in the License Certificate or the Purchase Order, no Web Port License are allowed to be installed on a Partner computer or server. A Partner could administrate a License.
1.4 Web Port License Certificate (“License Certificate”), is the procurement document and information sent to the Licensee, or available for downloading from the Market Place, together with the installation Web Port software file.
1.5 Special Terms, are written changes to the Purchase Order, signed by both the Licensee and the Licensor (both together called “Parties”). The Special Terms is part of the Purchase Order.
1.6 Software Specification, is the Web Port Configuration Manual provided by Kiona.
2. Grant of license
2.1 Grant of License.
Provided that Licensee comply with the terms and conditions of this EULA, Kiona grants Licensee from the date of supply of the Software a non-exclusive, restricted, perpetual, revocable, within the and European Union and Norway, license to:
a) Installation and Use.
Licensee may install and use a single instance of the Software on one computer (i.e. server, computer or device), display the functional options that are specified, and for the intended use as defined, and within the configuration and capacity limits specified, in the License Certificate, Software Specification or Purchase Order. The Software may be used from an unlimited number of clients (i.e. computers);
License may create, store and maintain one (1) back-up copy of the Software;
c) Transfer of License.
If representing a service and integration Partner of Kiona, as indicated in the License Certificate or Purchase Order, Partners are allowed to procure the Software only in order to transfer the License to an End User without prior written consent from the Licensor, install and use the Software and the License to help End User on the same terms as this EULA, provided that Partner notify Kiona at the time of the procurement to be part of the License Certificate or Purchase Order, or at any time via the contact information in Section 21;
d) Transfer of License for installed Software:
If the Software is installed on-site in a property (HMI), connecting different system from the same single property, and the property is sold to a new End User, the License could follow the transfer to the new property owner, by informing Kiona via the contact information in Section 21;
sub-sections (a) – (c) are subject to the limitations set out and referred to in this section 2 and section 5.
2.2 Limitations in use.
Licensee will not:
a) Use, access or display functions that are not specified in the License Certificate or the Purchase Order;
b) Exceed the configuration and capacity limits that are specified in the License Certificate or Purchase Order; and
c) Share a license or use a license for the Software concurrently on different devices.
d) Without written approval from the Licensor, use the Software to connect assets owned or controlled by multiple companies not belonging the same company group.
2.3 Restrictions of use.
Licensee will not use the Software for planning, constructing, maintaining, or operating, directly or indirectly, of nuclear facilities, flight navigation, aircraft control, air traffic control and ground supported equipment, missile technology and facilities for weapons of mass destruction.
2.4 Upgrades and additional software.
This EULA applies to modifications, updates, upgrades, new versions or releases, derivative works of or supplements to the original Software provided by Kiona, unless other terms are provided with such future releases, derivative works, or supplements. When Licensee have upgraded the Software, Licensee acknowledge that Licensee may no longer use the Software that formed the basis for the upgrade eligibility.
2.5 System Requirements and Software Specification.
The Licensor reserves the right to modify and change system requirements and the software specification for future versions of the Software. The Licensor does not guarantee the Software’s future compatibility with operating systems that are no longer maintained by the operating system software provider.
2.6 License Fee.
The License Fee is specified in the License Certificate or the Purchase Order and shall be compensated to the Licensor. For integration partners, the License Fee is specified as per the applicable partner agreement with Kiona.
2.7 Payment Terms.
2.7.1 Unless otherwise agreed in the License Certificate or Purchase Order, the License Fee are invoiced as:
18.104.22.168 For one-time payment products, at the time of the procurement.
22.214.171.124 For recurring payment products, afterwards in the end of each calendar month.
2.7.2 All invoices shall be paid within 30 days of the invoice date; and (c) if the Licensee is in delay with payment, Kiona shall be entitled to the payment of interest under Swedish law (Räntelagen) and may charge fees for administrating invoices and payments and reminders due to late payment.
2.8 Third Party Software and Open Source Software.
The Software may include software, which is owned by a third party, including but not limited to open source software (“Third Party Software”). For Third Party Software the conditions of use agreed between Kiona and its licencors shall apply with priority. The Software Specification contains a list of Third Party Software components and of the respective licensing terms. Licensee are not allowed to remove an existing copyright notice or license information with respect top Third Party Software. Link to the license texts of the used open source software are specified in section 22 in this EULA.
3. Proprietary rights
3.1 Source Code of the Software.
Nothing in this EULA shall give any stakeholder in i.e., but not limited to, Licensee, Partners, or any other person or company, any right to access or use the Source Code or constitute any licence of the Source Code.
3.2 Reservation of Rights.
The Software is licensed and not sold and all copyright, and other intellectual property rights in and to the Software is and will remain the exclusive property of Kiona or its licensors. Nothing in this EULA shall assign or transfer any Intellectual Property Rights from Kiona to the Licensee.
4.1 Licensee and Partners undertake not to disclose to any third party any trade secret information of commercial or technical nature provided by Kiona and shared as part of or in association with the Software. Licensee and Partner agree to not disclose any benchmark results or test result related to the Software, and agree to take all reasonable action with employees, representatives, agents or consultants who are permitted to access the Software to ensure compliance with obligations under this EULA, and are fully liable and responsible for all acts and omissions of such employees, representatives, agents or consultants.
4.2 Disclosure shall be limited to those individuals that require access to the Software on a need-to-know basis.
4.3 The Confidentiality Undertaking in this section 4 shall be in effect from the signature of any agreement that will include this EULA during the term of the license and up and until five (5) years after the end of the term of this EULA.
5. Restrictions of License
5.1 The Licensee will not:
a) Use the Software for any third party use, including sub-license, sell, resell, rent, lease, loan, supply, publish, distribute or redistribute, transfer, assign, disclose or otherwise commercially exploit or make it, or any portion thereof, available to any third party, except for the conditions set in section 2.1 c and d;
b) modify, tamper with, change, alter, edit, repair, adapt or make derivative works based upon the Software;
c) copy, reproduce, publish, disassemble, decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer (to the extent permitted by applicable law), attempt to derive the source code of, modify, emulate, or create derivative works of the Software;
d) copy any ideas, features, functions or graphics of the Software;
e) access or use the Software in a way to avoid incurring fees or exceeding usage limits or quotas or to circumvent or render inoperable any usage restriction features contained in the Software; and/or
f) remove, obscure, alter or move Kiona’s and its licencor's proprietary notices.
5.2 Restrictions regarding the Code.
Nothing in this EULA permits Licensee to derive the source or assembly code of files provided to licensee in executable or object format.
5.3 Security of Copies.
Licensee shall be responsible for the security of copies of the Software supplied to Licensee under this EULA and shall use all reasonable endeavors (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorized to use them under this EULA.
6. Transfer of Rights
6.1 The Licensee may without prior written consent from the Licencor (which shall not be unreasonably withheld) not transfer or assign the License of the Software outside its own group of companies, except for the conditions set in section 2.1 c and d. For the avoidance of doubt, the Licencor's prior written consent will be required in case of the Licensee’s merger or bankruptcy.
7.1 The Licensee warrants to the Licencor that Licensee has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
7.2 The Licencor warrants to the Licensee that, subject to the limitations and conditions set out in this EULA:
a) the Software as provided will substantially conform in all material respects with the specification of the Software;
b) Licencor will not materially decrease the overall security of the Software; and
c) the Software shall incorporate security features reflecting the requirements of good industry practice.
7.3 Compliance with Laws.
The Licencor warrants that the Software, when used in accordance with this EULA, will not breach any laws, statutes or regulations applicable under Swedish law.
7.4 Warranty regarding Infringement of Intellectual Property.
The Licencor warrants that the Software, when used in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under applicable law.
7.5 Infringement of Intellectual Property.
If the Licencor reasonably determines, or any third party alleges, that License’s compliant use of the Software infringes any person's Intellectual Property Rights, the Licencor may act reasonably at its own cost and expense, which shall be the Licensee’s exclusive remedy and Licencor's exclusive responsibility:
a) obtain the right for Licensee to continue to use the Software and/or Documentation as contemplated by this EULA free of any liability for infringement or violation; or
b) modify or replace the Software and/or Documentation, in whole or in part, with, or to seek to make the Software and/or Documentation non-infringing, while providing materially equivalent or better features and functionality, and such modified or replacement software will constitute Software under this EULA that is reasonably satisfactory to Licensee; or
c) if neither of the foregoing options can be obtained on commercially reasonable terms and within a commercially reasonable period of time, the parties shall work in good faith to reach agreement on a solution to resolve the infringement or violation of the Software and/or Documentation given the totality of the circumstances; or
d) if, after Licencor's exercise of commercially reasonable efforts, none of the remedies set forth in the above is reasonably available to Licencor, Licencor may terminate this EULA and the License Certificate or Purchase Order, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Licensee, in which event: (i) Licensee will cease all use of the Software and Documentation immediately on receipt of Licensee’s notice; and (ii) provided that Licensee fully complies with its post-termination obligations set forth in this EULA, Licencor will promptly refund to Licensee, on a pro rate basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
7.6 No Implied Warranties.
All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
7.7 Exclusive Remedy.
Kiona’s, its affiliates’ and its suppliers’ and licencors’ entire liability and Licensee’s exclusive remedy for non-compliance with Kiona’s warranty shall be, at Kiona’s sole discretion to, wither (a) refund to Licensee, on a pro rate basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination, or (b) modify or replace the Software that does not meet Kiona’s limited warranty, in whole or in part, and which is returned to Kiona with a copy of Licensee’s receipt and/or License Certificate or Purchase Order as applicable.
8. Acknowledgements and Warranty Limitations
8.1 Licensee acknowledge 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.
8.2 Licensee acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
8.3 Licensee acknowledge that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
8.4 Licensee acknowledge that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or Licensee’s use of the Software will not give rise to any legal liability on the part of the Licensee or any other person.
9. Limitation of liability, indemnity
9.1 Kiona shall not be liable for death, personal injury or damage to property unless it can be shown that the damage is a result of gross negligence on the part of Kiona. If the Licensee incurs liability towards any third party for such damage as described above, the Licensee shall indemnify, defend and hold Kiona harmless.
9.2 Kiona shall not in any event be liable for indirect and consequential losses and damages. Indirect and consequential losses and damages include but are not limited to: loss of earnings, loss of data, loss of profits, loss of use, loss of opportunities, loss due to pollution and loss of production.
9.3 All aggregated liabilities on Kiona including, but not limited to, any claims, indemnities, reduced fee, compensating development or product changes, extended support, damages, losses, costs and expenses (including legal, expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensee and arising directly as a result of any breach by the Licensor of this EULA (a "Licensor Indemnity Event”), shall in no event exceed the amount paid by the Licensee to Kiona during the twelve (12) months period immediately preceding the date the liability has been established.
All liabilities and disputes should be subject to limitations in Section 8.
9.4 The Licensee shall use the Software Solutions and Infrastructure Services only for legal purposes and in accordance with the terms of this EULA.
9.5 The Licensee must:
a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,
without prejudice to the Licensor’s limitations under section 9.3.
9.6 The claim and indemnity protection set out in this section 9 is subject to the limitations and exclusions of liability set out in section 10 of this EULA.
10. Limitations and exclusions of liability
10.1 Nothing in this EULA will:
a) limit or exclude any liability for death or personal injury resulting from negligence;
b) limit or exclude any liability for fraud or fraudulent misrepresentation;
c) limit any liabilities in any way that is not permitted under applicable law; or
d) exclude any liabilities that may not be excluded under applicable law, and,
e) if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
10.2 The limitations and exclusions of liability set out in this section 10 and elsewhere in this EULA are subject to section 10.1 and govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
10.3 The Licensor and its third party licensors will not be liable to the Licensee in respect of any losses arising out of a Force Majeure Event, any loss of profits or anticipated savings, any loss of revenue or income, any loss of business, contracts or opportunities, any loss or corruption of any data, database or software, or any other special, indirect or consequential loss or damage.
10.4 Parties shall indemnify the other Part for any use in violation of source code limitations stated in this EULA.
11. Export restrictions
11.1 Licensee acknowledge that the Software may be subject to domestic and/or foreign provisions and regulations regarding export control and, without export or re-export authorizations from the competent authorities, may not be sold, leased or otherwise transferred or used for a purpose other than the agreed upon. Licensee agree to comply with such provisions and regulations. Licensee also acknowledge that such provisions and regulations may change and that Licensee shall keep updated on the applicable rules from time to time.
12. Cyber security
12.1 This Software is designed to be connected to and to communicate information and data via a network interface. It is the Licensee’s exclusive responsibility to ensure a secure connection between the Software and Licensee’s network or other network at all times.
12.2 Licensee shall establish and maintain any suitable technical and organizational security measures (such as, but not limited to, the installation of firewalls, application of authentication measures, encryption of data, installation of anti-virus programs, etc.) to protect the Software, the network, Licensee’s system and the interface against any security breaches, unauthorized access, interference, instruction, corruption, destruction, data leakage and/or theft of data or information.
12.3 Kiona and its affiliates are not liable for damages and/or losses related to such security breaches, unauthorized access, interference, instruction, corruption, destruction, data leakage and/or theft of data or information.
13.1 Kiona may terminate this EULA at any time in full or in part if Licensee do not comply with the terms and conditions of this EULA.
13.2 If applicable, demo licenses and fixed term licenses will expire automatically at the end of their respective license term.
13.3 In case of termination or expiration of this EULA Licensee must immediately stop using the Software.
13.4 Any terms of this EULA that in writing extend beyond termination of this EULA shall remain in effect until fulfilled, and both parties shall undertake to bind their respective successors and assignees by such terms.
14. Applicable law and dispute resolution
14.1 This EULA shall be governed and construed in accordance with Swedish law, under exclusion of its conflict of laws rules and the United Nations Convention on International Sale of Goods.
14.2 Any dispute, controversy or claim arising out of, or in connection with this EULA, or the breach, termination or invalidity hereof, which cannot be settled amicably between the parties, shall be finally settled by under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of a single arbitrator. The language that is to be used in the arbitral proceedings shall be Swedish, or English as agreed by the Parties.
15. Data Processing Agreement (“DPA”)
15.1 Kiona undertake to comply with the DPA in the following link:
16. Force Majeure
16.1 Neither Kiona or Licensee shall be hold responsible or liable for failure to perform any of its obligation under this EULA if such failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”).
16.2 If the performance of the EULA is substantially prevented in a material aspect for a period longer than six (6) months due to certain circumstances stated above, each party is entitled to terminate the agreement in writing without compensation.
17.1 If any provision of this EULA is found to be held invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
18. Entire agreement
18.1 The License Certificate and this EULA constitutes the entire agreement between the parties, and no promise, undertaking, representation, warranty or statement by either party prior to the date of the License Certificate and this EULA shall affect the parties’ agreement.
19. Order of precedence
19.1 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) Special Terms to the parties’ License Certificate or Purchase Order agreed by both parties in writing, (2) the License Certificate or Purchase Order, (3) this EULA, and (4) the Documentation. Appendices shall take precedence in numerical order.
20.1 The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
21. Contact information
Kiona’s contact information.
(+46)31-753 50 30
Kiona Sweden AB
167 51 Bromma
22. Open source licenses
22.1 Open source licences will vary between versions and configurations of the Software. A list of used libraries and licences is available in each version of the Software.
22.2 In case of questions, please contact email@example.com