1. Our Agreement
This End User Licence Agreement (the “Agreement”) is a binding agreement between the application provider Handheld Group AB, a company incorporated in Sweden under company registration number 556556-2799 (“Handheld“) and the end user which is accepting this Agreement (the ”Company”). In this Agreement Handheld and the Company are referred to as each a “Party” and collectively the “Parties”.
This Agreement governs the Company’s license to use Handheld’s MaxGo KioskBrowser Application (the “Application”), which also includes a right for the Company to authorise its employees, consultants, contractors and other personnel (“Authorised Users”) to use the Application in accordance with the terms and conditions in this Agreement; provided that Authorised Users have accepted the Application’s Acceptable Use Policy (the “Acceptable Use Policy”), which is an integrated part of this Agreement.
This Agreement is accepted by the Company by clicking the “I accept” button. The Company warrants and represents that the individual clicking the “I accept” button has carefully read and understood this Agreement and has the legal capacity to bind the Company, which it represents (altogether “Duly Executed”). Without the terms and conditions of this Agreement becoming Duly Executed, the Company may not use this Application for whatever purpose.
2. The Application
The Application enables the Company to control the web browser of the device the Application is installed on (the “Device”). The Company may define a default homepage that is used on the Device and restrict the Device from accessing any unauthorised websites and functions.
If the Parties have agreed in a separate written agreement, that the Application shall be customised in accordance with the Company’s requests and requirements (“Customised Application”), the provisions in this Agreement shall apply to such customised work and the Customised Application as it applies to an Application. Handheld reserves the right to charge for providing customised work and/or a Customised Application to the Company.
Handheld will update and provide maintenance to the Application from time-to-time on a discretionary basis, including bug-fixes, upgrades, introducing new functions or correct errors. Handheld do not provide any warranties nor have any obligation to update or maintain the Application. The Company hereby acknowledges that Handheld has no obligations to offer updates or maintain the Application. However, if Handheld offers any updates to the Application, the Company shall promptly download and install such update and acknowledges that the Application may not operate properly if the Company fails to update the Application to the most current version. For the avoidance of doubts, all such updates will form a part of the Application, to which this Agreement applies.
3. Licence to the Application
Handheld owns and will continue to own the Application, all of its content and all rights associated with the Application, including all related intellectual property rights. The Company acknowledges that the Application is licenced and not sold, and that the Company does not acquire any ownership interests in the Application nor any other rights other than the licence granted under this section, subject to all terms, conditions, and restrictions, under this Agreement.
By entering into this Agreement, the Company is granted a non-sublicensable, non-transferable, non-exclusive, revocable, limited licence to use the Application, including any forthcoming upgrades and updates, in accordance with the conditions set out in this Agreement and the Acceptable Use Policy, to:
(i) download, install, and use the Application and authorise Authorised Users to download, install, and use the Application, from an application platform where the Application has been made available; and
(ii) access and use, and authorise Authorised Users to access and use, the content and services made available in or otherwise accessible through the Application.
The Company may not:
(i) copy, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(ii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(iv) rent, lease, lend, sell, sublicence, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party, unless expressly permitted under this Agreement, for any reason; or
(v) remove, disable, circumvent, or otherwise create or implement any workaround to any copyright protection, rights management, or security features in or protecting the Application.
The Company warrants and represents that;
(i) it has validly entered into the Agreement and has the legal power to do so;
(ii) it and all Authorised Users will adhere to all applicable laws, including any applicable export control laws, as well as to the terms and conditions of this Agreement and the Acceptable Use Policy; and
(iii) all use of the Application or activities conducted that is related thereto, is on the Company’s own risk and that all damage the Company may suffer in connection with using the Application is the Company’s own responsibility and liability.
5. Disclaimer of warranties
The Company hereby confirms that the Application is provided by Handheld “as is” and “as available” with all faults and defects without any warranties of any kind made by Handheld. The Application may not be available in all territories or markets, and the Company may not be able to access the Application outside of the territory indicated when initialising the Application.
To the maximum extent permitted under applicable law, Handheld expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, title, expectations and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice.
Without limitation to the foregoing and to the extent allowed by applicable laws, Handheld does not provide any warranties or undertakings, and makes no representation of any kind that the Application will:
(i) meet the Company’s requirements and demands;
(ii) attain any of the Company’s intended results or achievements;
(iii) be compatible, or work with any other software, applications, systems, or services; or
(iv) operate uninterrupted, timely, secure, or error-free.
6. Limitation of liability
Handheld’s aggregate liability for any damage or loss of any kind (regardless of how it was caused and including any damage or loss caused by negligence) under or in connection with this Agreement will in no event exceed USD 1.
Handheld shall not be liable for any special, indirect, incidental, consequential damage or loss of any kind, regardless of how it was caused and including but not limited to, loss of profit, loss of reputation or goodwill, loss of production, loss of business or business opportunities, loss of revenues or anticipated savings, or loss or corruption of data or information. This limitation will apply irrespective of whether such damage or loss was foreseeable or not at the time when the Agreement was formed (even if advised of the possibility of such damage or loss).
The Company shall, at its sole cost and expense, defend, indemnify and hold Handheld harmless from and against any and all loss, liability (including but not limited to product liability) cost and expense (including but not limited to the cost of reasonable attorney’s fees and expert fees) arising from any breach of this Agreement, including but not limited to breach any warranties, made by the Company or any Authorised Users, including any negligent or reckless act, omission or default conducted through the Application or in connection with this Agreement.
8. Access to data and privacy
Handheld may (i) compile statistical and other information related to the per-formance, operation and use of the Application, and (ii) use data from the Appli-cation in aggregated form for security and operations management, to create sta-tistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Application Analyses”). Handheld retains all intel-lectual property rights in Application Analyses.
9. Suspension and discontinuation
Handheld has the right to discontinue the Application at any time and for whatever reason.
If Handheld becomes aware that the Company or any Authorised User violates this Agreement or the Acceptable Use Policy, Handheld will notify the Company and request correction of the violation. If the Company fails to correct the violation within ten (10) days of such request, Handheld may suspend all or part of the Company’s access to the Application until the violation is corrected.
Notwithstanding the section above, Handheld may immediately suspend all or part of the Company’s access to the Application if;
(i) Handheld reasonably believes the Company’s, or any Authorised User’s, use of the Application could adversely impact the Application;
(ii) Handheld suspects unauthorised third-party access to the Application, linked to the Company or any Authorised User;
(iii) Handheld is required or requested to do so by a court order, subpoena or governmental authority; or
(iv) Handheld reasonably believes that immediate suspension is required to comply with any applicable law.
Handheld will lift any suspension when the circumstances giving rise to the suspension according to this section have been resolved. For the avoidance of doubts, Handheld will not defend the Company or any Authorised Users from or against any third-party claims, actions, suits, proceedings, and demands nor be liable for any type of damages incurred by the Company or any Authorised Users occurring as a result of the suspension according to this section.
This Agreement will commence when the Company click and accept this Agreement and shall remain in full force and effect until terminated automatically without notice when the Company and all the Authorised Users cease to use the Application.
Notwithstanding the above, Handheld shall have the right to terminate this Agreement with immediate effect in case the Company or any of its Authorised Users is in breach of any of the provisions contained in this Agreement or the Acceptable Use Policy. If this Agreement is terminated by Handheld in accordance with this section, the Company is obliged to immediately and completely cease to use the Application and ensure that all Authorised Users ceases to use the Application as well. This includes that any copies, data or other information related to the Application shall be deleted or destroyed.
On termination of this Agreement, regardless of the reason for such termination, the following sections shall survive and continue in full force and effect; section 5 (Warranties), section 6 (Disclaimer of warranties), section 7 (Limitation of liability), section 9 (Indemnification), section 14 (Severance), section 16 (Waiver), and section 18 (Governing law and disputes).
If any provision of this Agreement is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law, and the Parties shall negotiate any necessary changes to this Agreement to maintain the spirit of this Agreement and the framework, structure and operation of the transactions contemplated by this Agreement.
The Company acknowledge that this Agreement may be amended by Handheld on a discretionary basis from time to time. Only material changes to this Agree-ment will be notified to the Company. The Company can review the most current version of the Agreement any time by visiting https://www.handheldgroup.com/about-handheld/general-terms/. The revised Agreement will become effective upon posting of the change. If the Company or any of its Authorised Users uses the Application after the effective date, such use will constitute the Company’s acceptance of any revised terms and conditions in the Agreement.
A Party’s waiver of any of its rights or remedies under this Agreement must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
15. Entire agreement
This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous and contemporaneous negotiations and understandings between the Parties in relation thereto, whether written or oral.
16. Governing law and disputes
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
Any dispute, controversy or claim arising out of, or in connection with, this Agreement, or the breach, termination or invalidity thereof, or any non-contractual obligations arising out of or in connection with this Agreement, shall be finally settled by arbitration in accordance with the Arbitration Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Gothenburg, Sweden. The language of the arbitration shall be English (unless otherwise agreed by the disputing Parties).
All arbitral proceedings conducted pursuant to the section above, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing Parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than these proceedings or the enforcement of any such decision or award nor be disclosed to any third party without the prior written consent of the Party to which the information relates or, as regards to a decision or award, the prior written consent of all the other disputing Parties.