End User License Agreement
Softomotive WinAutomation version 9
(Trial Winautomation, WinAutomation)
END USER LICENSE AGREEMENT
READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY DOWNLOADING, INSTALLING AND USING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. YOU AGREE THAT YOUR INSTALLING OR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
YOU AGREE THAT THE AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THIS AGREEMENT IS ENFORCEABLE AGAINST YOU.
This is a legal agreement between you (either an individual or a legal entity, “CUSTOMER”) and Softomotive UK Ltd. (“SOFTOMOTIVE”) acting directly or indirectly through its affiliates and its authorized distributors and resellers. This End User License Agreement (the “AGREEMENT”) states the terms and conditions upon which SOFTOMOTIVE offers to license Trial WinAutomation (the “TRIAL EDITION”), and WinAutomation together with all related documentation and accompanying items including, but not limited to, the executable programs, drivers, libraries and data files associated with such programs (collectively the “SOFTWARE”).
THE AGREEMENT APPLIES TO VERSION 9 OF THE SOFTWARE AND NEITHER AFFECTS NOR IS AFFECTED BY THE END USER LICENSE AGREEMENTS FOR PREVIOUS VERSIONS OF THE SOFTWARE.
- Grant of License/Subscription/Renewals
(a) The SOFTWARE is licensed, not sold to you for installation and use only under the terms of this AGREEMENT. SOFTOMOTIVE retains all title to and ownership of the SOFTWARE and reserves all rights not expressly granted to you.
(b) If you have obtained the TRIAL EDITION and have not purchased a license key for WinAutomation under a subscription SOFTOMOTIVE grants you a thirty (30) calendar day non-exclusive, non-transferable license to use the SOFTWARE free of charge for the purpose of evaluating whether you wish to purchase a license for the SOFTWARE under annual subscription periods (each annual subscription period referred to as a “TERM”). The TERM of an annual subscription commences on the day of purchase of a license and lasts for twelve (12) consecutive months.
(c) WARNING: The TRIAL EDITION will become non-functional thirty (30) calendar days after the first installation and use of the SOFTWARE (the “TRIAL PERIOD”). SOFTOMOTIVE disclaims all liability and responsibility for any loss of data or other information, which may occur as a result thereof. During the TRIAL PERIOD you will be notified with regard to the remaining calendar days of your free use of the SOFTWARE until expiry of the TRIAL PERIOD.
(d) If you would like to continue using WinAutomation after the end of the TRIAL PERIOD, you will then need to pay a subscription fee, in accordance with SOFTOMOTIVE’s then applicable subscription rate card (the “SUBSCRIPTION FEE”). In case you are a holder of a perpetual license all such licenses are converted to annual subscriptions. In such cases your SUBSCRIPTION FEE is due at the same time when your annual maintenance and support fee would otherwise be due. The terms and conditions of this AGREEMENT will continue to govern the use of the WINAUTOMATION during the TERM. The license to use WINAUTOMATION will automatically expire upon expiry of the TERM, failure to pay the renewal SUBSCRIPTION FEE or as otherwise provided hereunder.
(e) SOFTOMOTIVE may prompt you to renew the TERM thirty (30) calendar days prior to its expiry. In case of non- renewal of a TERM your license to use the SOFTWARE as well as to receive Technical Support & Updates will terminate upon expiry of the TERM.
- For Use on a Single Device
(a) The SOFTWARE may be used only on a single device by a single user at any time, where device is defined either as: (i) a physical device such as a personal computer (i.e workstation) or server, or (ii) a virtual device, such as an operating environment that may be running concurrently with another operating environment on a single physical device (e.g., VMware, Virtual PC, Virtual Server, VirtualBox etc).
(b) You may transfer the machine-readable portion of the SOFTWARE from one device to another, provided that: (i) the SOFTWARE (including any portion or copy thereof) is erased from the first device and the license key is deregistered from the first workstation and (ii) there is no possibility that the SOFTWARE will be used on more than one device at a time.
- Technical Support & Version Updates
Details of Technical Support & Version Updates can be found in the Software Support and Maintenance Plan (SSMP), attached hereto as ANNEX A.
The SOFTWARE is owned or licensed to SOFTOMOTIVE and is protected by EU copyright laws and international treaty provisions. You may not remove the copyright notice from any copy of the SOFTWARE or any copy of the written materials, if any, accompanying the SOFTWARE.
- Purchase of Tokens for installation of exe files on non-licensed workstations
WINAUTOMATION (i.e. the non -TRIAL EDITION) enables you to produce executable files (“exe”). In order to be able to install and use the produced “exe” files on workstations not previously having installed the SOFTWARE you need to have previously purchased one (1) token per machine to be installed on a non- licensed workstation.
- No Merger or Integration
You may not merge any portion of the SOFTWARE into or integrate any portion of the SOFTWARE with any other program, unless otherwise agreed in writing with SOFTOMOTIVE.
- Transfer of License
(a) You may sublicense, assign or transfer any of your ownership and/or usage rights under this AGREEMENT to any third party subject to the following conditions:
(b) Subject to the terms of this AGREEMENT, you may permanently transfer your license to use the SOFTWARE during the TERM only to another user provided that: (i) you deregister your workstation from the assigned license key or from the website’s relevant user area (https://www.winautomation.com/userarea), (ii) the receiving party agrees that this AGREEMENT applies to the transfer and use of the SOFTWARE.
You agree to the following additional terms and restrictions related to the License:
(a) You may not: (i) work around any technical limitations in the SOFTWARE; (ii) decompile, de-obfuscate, reverse engineer, modify, adapt or translate the SOFTWARE or attempt to do any of the foregoing, (iii) copy the SOFTWARE except to make archival copies as provided in this AGREEMENT; (iv) publish or make available in any way the SOFTWARE for others to copy; (v) sell, resell, rent, lease or lend, supply, publish, distribute or redistribute the SOFTWARE; (vi) share the license key with any third party, (vi) use the SOFTWARE to create any viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software.
(b) You may be required to connect to the Internet and log in at any time during the Term;
(c) SOFTWARE may automatically connect to the Internet to verify your subscription status and license validity without notice at any time;
(d) You may not enable or allow others to use the SOFTWARE as Customer.
(e) You acknowledge that the SOFTWARE contains trade secrets and other proprietary information of SOFTOMOTIVE. You may not decompile, disassemble or otherwise reverse engineer the SOFTWARE, or engage in any other activities to obtain underlying information that is not visible to the user in connection with normal use of the SOFTWARE. In particular, you agree not for any purpose to transmit the SOFTWARE or display the SOFTWARE’s object code on any computer screen or to make any hard copy memory dumps of the SOFTWARE’s object code.
(f) If you believe you require information related to the interoperability of the SOFTWARE with other programs, you shall not decompile or disassemble the SOFTWARE to obtain such information, and you agree to request such information from SOFTOMOTIVE at the address listed below. Upon receiving such a request, SOFTOMOTIVE shall determine whether you require such information for a legitimate purpose and, if so, SOFTOMOTIVE will provide such information to you within a reasonable time and on reasonable conditions. In any event, you will notify SOFTOMOTIVE of any information derived from reverse engineering or such other activities, and the results thereof will constitute the confidential information of SOFTOMOTIVE that may be used only in connection with the SOFTWARE.
(g) Nothing in this AGREEMENT shall give you or any other person any right to access or use the source code or constitute any license of the source code of the SOFTWARE.
- Termination of License
(a) The license granted to you is effective until terminated.
(b) Termination by You. Non-renewal of your subscription by payment of the SUBSCRIPTION FEE, as per the terms of this AGREEMENT shall constitute a termination by you of your license to use the SOFTWARE.
(c) Termination by SOFTOMOTIVE. Your license to use the SOFTWARE will terminate automatically without any notice from SOFTOMOTIVE if you fail to comply with any term or condition of this AGREEMENT and SOFTOMOTIVE may also enforce any and all rights provided by law. SOFTOMOTIVE may also terminate your license to use the SOFTWARE on expiry of the TERM without further renewal or otherwise at its sole discretion by providing a prior 90 days’ notice to you (e.g. in the event that SOFTOMOTIVE decides to withdraw the SOFTWARE from general availability to the market, change the type of SOFTWARE it offers at such time, such as specific components, platforms, languages, architecture, background technology etc.).You agree that upon any such termination SOFTOMOTIVE will not be obliged to maintain or support the SOFTWARE in any manner or maintain any data repository related to licenses issued to You, unless and for as long as required by applicable laws.
(d) Upon such termination You understand that SOFTOMOTIVE may at its discretion request you to stop using and destroy the SOFTWARE (including any portions or copies thereof) and consequently that any further use of the SOFTWARE will be deemed an infringement of SOFTOMOTIVE’s intellectual property, as well as a violation of this AGREEMENT.
(e) The provisions of this AGREEMENT that protect the proprietary rights of SOFTOMOTIVE will continue in force after termination, howsoever it occurs.
- No Warranty
(a) ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW SOFTOMOTIVE DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF NON-INFINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) SOFTOMOTIVE does not warrant that the functions contained in the SOFTWARE will meet your requirements or that the operation of the SOFTWARE will be uninterrupted or error-free or that defects will be corrected within a certain time period, if at all. Any representation, other than the warranties set forth in this AGREEMENT, will not bind SOFTOMOTIVE. You assume full responsibility for the selection of the SOFTWARE to achieve your intended results, and for the use and results obtained from the SOFTWARE. You also assume the entire risk as it applies to the quality and performance of the SOFTWARE.
(c) SOFTOMOTIVE shall not be liable for the accuracy of any information provided by SOFTOMOTIVE or third-party technical support personnel, or any damages caused, either directly or indirectly, by acts taken or omissions made by you as a result of such technical support.
(d) No oral or written information or advice given by SOFTOMOTIVE, its officers, employees, agents, representatives, authorized distributors and resellers shall create a warranty.
- Disclaimer of Damages: Limitation of Liability
IN NO EVENT SHALL SOFTOMOTIVE OR ITS AUTHORIZED DISTRIBUTORS OR RESELLERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUES, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SOFTOMOTIVE OR ITS AUTHORIZED DISTRIBUTORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SOFTOMOTIVE’S LIABILITY OR DAMAGES TO YOU OR ANY THIRD PARTY EVER EXCEED THE AMOUNT PAID BY YOU TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF THE CLAIM.
- Indemnification by You
You agree to defend, indemnify, and hold harmless SOFTOMOTIVE and its officers, employees, agents and representatives from any demand, claim, loss, liability or damage, including actual attorneys’ fees, that it or any of them may incur by reason of or arising out of any claim that is made by any third party that is based in whole or in part upon any claim or allegation relating to the use of the SOFTWARE by you (or your employees, agents or representatives, as applicable).
- Contact Us
Contact details of SOFTOMOTIVE are:
For our US based customers:
One World Trade Center,
285 Fulton Street Suite 46J
New York, NY 10007 USA
Tel: +(1) 9292421263
For customers based anywhere else:
WeWork Devonshire Square Offices,
8 Devonshire Square,
London, United Kingdom
Tel: +44 (0) 213 515 0064
(a) This AGREEMENT is binding on you as well as your employees, employers, contractors and agents, and on any successors and assignees.
(b) This AGREEMENT is governed (i) by the laws of New York for any US based customer. In such case for any dispute regarding the terms of this AGREEMENT the competent federal or state court(s) of competent jurisdiction located in the Borough of Manhattan, New York City, NY, USA. shall have exclusive jurisdiction and (ii) by the of laws of the United Kingdom for any other customer. In such case for any dispute regarding the terms of this AGREEMENT the competent courts of London shall have exclusive jurisdiction.
(c) This AGREEMENT is the entire agreement between us and supersedes any other understandings or agreements (oral or written), including, but not limited to, advertising, with respect to the SOFTWARE.
(d) If any provision of this AGREEMENT is deemed invalid or unenforceable by a court of competent jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect.
(e) You agree that SOFTOMOTIVE will not have any liability for any inaccurate statement or representation made by it and its officers, employees, agents and representatives or anyone else (whether innocently or negligently) upon which you relied upon entering into this AGREEMENT, unless such untrue statement or representation was made fraudulently or with gross negligence.
(f) For questions concerning this Agreement, please contact SOFTOMOTIVE at the address stated above.
Software Support and Maintenance Plan
1.1. Software Support and Maintenance Plan (“SSMP”) is offered to Licensee with a purchased Software Subscription. SSMP provides access during the Term to SOFTOMOTIVE’s generally available Software Updates and Software Upgrades at no additional cost and includes access to Software Support and Technical Support channels provided by SOFTOMOTIVE to Licensee during the support hours identified below. No SSMP is offered upon expiry of the Term.
1.2. “Software Support” means the after-sales services provided by SOFTOMOTIVE related to possible bug fixes on the supported Software versions. Any error that SOFTOMOTIVE will correct will be included only in the new Software version release.. If Licensee is using a previous version of the Software, SOFTOMOTIVE will only suggest workarounds, if those are possible; otherwise Licensee should upgrade to the current version of the Software and be provided with the included fix.
1.3. “Technical Support” means:
(a) Explanation of Software features
(b) Answers to questions about: installation, activation, licensing, general Software usage
(c) Reproducing problems that may be a Software bug. Providing workarounds for known bugs
(d) Recommendations for process development and best practices on actions use. This does NOT include actual process development but only providing examples or general resources and “how to” knowledge.
1.4. “Software” has the meaning provided in the respective Software License Agreement.
1.5. “Software Updates” are periodic updates that may be made by SOFTOMOTIVE to the Software to correct errors, extend or add new features or functionality, or improve performance, and are considered by SOFTOMOTIVE as a minor release to the current version (e.g. WinAutomation version 8.0.1 to 8.0.2, or ProcessRobot 2018.1.1 to ProcessRobot 2018.1.2). A particular Software Update may not necessarily include feature enhancements to the Software itself. SOFTOMOTIVE makes no guarantee as to if or when a Software Update will be released. A Licensee will be entitled to all the updates of the Software that he holds an active Software Subscription. This is applicable to the extent that such Software Updates are made generally available by SOFTOMOTIVE to all of its customers.
1.6. “Software Upgrades” means the next major Software release that:
(a) substantially enhances the functionality and supersedes the version currently licensed to Licensee (e.g. WinAutomation version 8.0 to 8.1 or 9.0 etc., or ProcessRobot 2018.1 to 2018.2 or 2019.1, etc.) and specifically excludes changes in the Software’s architecture and background technology and
(b) SOFTOMOTIVE makes generally available to its direct customers.
Note 1: SOFTOMOTIVE does not guarantee compatibility of processes/robots of the Software to the previous version once the Software has been upgraded to the current version.
1.7. “Licensee” means a person or company to whom an approved License is granted or issued under the Software License Agreement Terms.
1.8. “Software Subscription” means a Licensee’s subscription to use the Software under the terms of the “Software License Agreement” or “End User License Agreement / EULA” to subscribe and use the Software on a non-exclusive basis. A Software Subscription does not transfer the ownership of the Software to the Licensee.
1.9. “Software License Agreement” or “End User License Agreement / EULA” means the written agreement between Softomotive and the Licensee as end user that defines the terms and conditions under which the Software is being made available from Softomotive to the Licensee.
1.10. “Term” has the meaning provided in the respective Software License Agreement.
- Terms and Conditions
2.1. Provided Licensee’s SSMP is active, SOFTOMOTIVE will provide “Technical Support” and “Software Support” services directly to Licensee for the current version of the Software and (1) one version back. To obtain Support for an error, Licensee shall first provide detailed information concerning such error. It is at SOFTOMOTIVE’s discretion to determine whether a Licensee should provide detailed information on a reported error through email (email@example.com) or through the Customer Service Portal found at http://support.softomotive.com.
2.2. Support Services by SOFTOMOTIVE will be provided during the hours of 08:00-24:00 EET via e-mail (firstname.lastname@example.org) during weekdays (Monday to Friday). Correspondence will be only available in English.
2.3. SOFTOMOTIVE agrees to acknowledge receipt of all support requests for error corrections properly logged through the Log System within four working (4) hours of its receipt
2.4. Within twenty four (24) hours of an error being logged through the Log System, SOFTOMOTIVE will commence working on the logged support request, and will make reasonable efforts to replicate and commence seeking a remedy for any error reported to it that causes a function of the Software to fail to conform to its technical documentation in a material respect. In the event that SOFTOMOTIVE is unable to reproduce a particular error in its machines environment, Licensee agrees that he shall provide SOFTOMOTIVE secure remote access to his own workstation. During this remote session the error will be demonstrated to SOFTOMOTIVE’s representatives in order to assist with determining whether the error is in the Software or is not in the Software but more likely is in Licensee’s systems, other software, hardware or was generated by other causes not under the reasonable control of SOFTOMOTIVE. SOFTOMOTIVE is only responsible for providing Support Services for errors it can reproduce that are found to be in the Software alone. Licensee acknowledges that not all errors can be replicated or corrected.
2.5. If any Software Update, workaround or supplemental software code is required by SOFTOMOTIVE to correct the error, then it shall be made available to Licensee by electronic download. Any Software Updates or other supplemental software code provided to Licensee as a result of Support Services shall be considered part of the Software and will be subject of the terms and conditions of this SSMP. Any fix that will be provided, will only be included in the current version of the Software, and will not be included in any earlier version than this.
2.6. Licensee is expected to train key personnel on the Software and assign such personnel to provide first line support to Licensee’s internal users. SOFTOMOTIVE will provide second level technical support to the above mentioned trained key personnel, who will act as SOFTOMOTIVE’s sole point of contact for all technical support requests and will assist SOFTOMOTIVE is identifying and correcting Errors.
- At the time of any call reporting an Error, provide reasonably requested information (including, by way of example, system log files, configuration files etc.) and, to the extent it is practical and commercially reasonable to do so, a reproducible instance of the issue;
- Prior to reporting any Error, where reasonably possible, perform preliminary troubleshooting or diagnostics to assist confirming that the Software bug relates to the Software; and
- In the event of the need for SOFTOMOTIVE to provide remote Maintenance and Support Services, provide reasonable access to relevant infrastructure during the Service hours.
2.7. SOFTOMOTIVE has the right to stop providing services under this SSMP and not respond to Support emails:
(a) immediately upon written notice to Licensee in the event Licensee breaches or terminates any associated Software License Agreement,
(b) immediately upon the date on which Licensee ceases being covered by SSMP for any reason, including without limitation failure to pay the required Software Subscription.
2.8. SSMP can only be made available only when a Software Subscription is purchased and renewed by the Licensee in whole as per the terms and conditions of the Software License Agreement in order for the Licensee to maintain access to Software Support, Technical Support, Software Updates and Software Upgrades, under the respective Software License Agreement.