Last modified: ..2021
This end user license agreement (hereinafter referred to as "Agreement" or "EULA") is concluded between you as the end user (hereinafter referred to as "User(s)" or "you") and eKraft Europe Kft. (registered seat: Rozália park 11., 2051 Biatorbágy, Hungary; company registration number: 13-09-204993; tax number: 27908925-2-13; hereinafter referred to as "Company") as the owner and provider of the EKraft monitoring software (hereinafter referred to as "Software") for the use of the Software as an end user.
Before installing or using the Software, please read the following provisions carefully and, in case of any questions, please contact the Company at the contact details provided in this Agreement. Please do not install, use the Software, or use the Company's services unless you expressly agree to and accept the terms and conditions of this Agreement and any additional Purchase Agreement or Service Agreement with the Company, as defined below. With the above you further represent that you have full legal capacity to act and contract in relation to the Agreement as well as to use of the Software, and if you are acting on behalf of another person or entity, you additionally represent that you have full legal capacity to do so.
NOTICE OF GENERAL CONTRACTUAL TERMS AND CONDITIONS THAT SUBSTANTIALLY DIFFER FROM THE APPLICABLE REGULATION OR USUAL CONTRACTUAL PRACTICE: The Company hereby informs you that the general terms and conditions of this Agreement contain highlighted and underlined clauses that differ substantially from the applicable law or from usual contractual practice. Please read these clauses carefully with particular attention and only use the Software or use the Company's services if you agree to them. Please be advised that you indicate your express acceptance of the above terms and conditions by commencing the use of the Software, or by signing the relevant agreement in case you have entered into a Purchase Agreement or Service Agreement with the Company as defined below (including, where applicable, concluding a distance contract in accordance with the applicable legal provisions).
The Company is the licensee, developer, owner and provider of the Software. The Software is designed to act as a dashboard to provide data to the owners or users of boats used for sport and recreational purposes ("Device(s)") as end users (i.e., Users) (hereinafter collectively referred to as the "Parties"; individually, the Company and the User: "Party") in connection with the operation of the relevant Device. The way the Company provides the Software is that the Software is embedded in electric drive systems. The Software is either sold under a sales agreement (the "Sales Agreement") to the Company’s licensed partners ("Partner(s)") that distribute the Devices, or directly to the User. If the Partner or User requires additional related services from the Company, the Company will enter into a service agreement ("Service Agreement") with the Partner or User.
This Agreement is an end user license agreement concluded directly between the Company and you in connection with your use of the Software. The Agreement shall be construed in accordance and together with any Sales Agreement or Service Agreement that may be entered into between you and the Company. Nevertheless, in the event of any discrepancy between the terms of this Agreement and those of the Sales Agreement or Service Agreement, the terms of this Agreement shall be applicable.
- USER RIGHTS AND USE OF THE SOFTWARE
- This Agreement between you and the Company is concluded upon your acquisition of a copy of the Software commercially or by the conclusion of the relevant agreement if you have entered into a Sales Agreement or a Services Agreement with the Company which is directly applicable to your relationship with the Company. The terms and conditions of this Agreement shall govern and be applicable for the relationship between you and the Company regardless of whether through the purchase you acquired the copy of the Software or the electrical drive system or other equipment or Device incorporating the Software.
- License: By acquiring the Software commercially (including, without limitation, by purchasing the Device into which the Software is incorporated) or through entering into a Purchase Agreement or Service Agreement as described above, the Company grants you a personal, revocable, non-exclusive, non-transferable, end-user, limited right to install and use the Software, which is proprietary owned and provided by the Company, and is subject to strict compliance with the terms of this Agreement. Unless otherwise agreed by the Parties, this Agreement is valid and applies to all and any part of the Software and related Documentation, as defined below, as well as any updates, supplements, different, later or earlier versions, demo, test or trial versions of the Software provided by the Company to the extent that you are entitled to use them based on an agreement with the Company, an express declaration or a voluntary undertaking to that effect by the Company. However, in the absence of a contractual provision, express declaration or voluntary undertaking by the Company granting you the rights as set out above, the Company shall not be obliged to provide you with updates, supplements, different, earlier or later versions, demos, tests or trials of or in connection with the Software, nor shall it be obligated to ensure compliance with any applicable legal requirements, governmental, court orders or practices, industry standards, best practices, standards or other similar requirements, or to monitor changes thereto in any different, prior or subsequent versions, demos, tests, trials, updates or supplements to the Software.
- The Company will provide you with a user documentation (hereinafter referred to as the "Documentation") for the Software, which will be handed or sent to you by the Company or the Partner. The Documentation will contain all essential features of the Software as well as all technical or security information and requirements for its use. You shall use the Software in accordance with the Documentation and this Agreement as well as act in all cases with care and diligence, in accordance with the applicable laws and regulations applicable for the use of the Device and the Software.
- Under the above license you are entitled to:
- use the Software or its copy for its intended purpose in a legally purchased Device, as an end user, as described in the Documentation or in any instructions from the Company, in the condition in which the Software has been made available to you, at your own risk;
- use the Software as a single piece of software without disassembling or separating its components or parts;
- make one backup copy of the Software;
- make a copy of the Documentation for private purposes as required, in accordance with the applicable copyright provisions;
- use the services and benefit from the activities of the Company, whether it is performed to perform its contractual obligations or comply with statutory requirements;
- install and use any bug fixes, updates, or different, earlier or later versions of the Software provided by the Company pursuant to the written permission of the Company or pursuant to a Purchase Agreement or Service Agreement with the Company. In such case, the Company shall be entitled to provide the bug fixes, updates or versions in question remotely (for example, by allowing the User to download them) instead of on-site installation, if this is possible in the particular case.
- In connection with the above, it should be emphasised that any repair, modification, servicing, addition, or update of the Software may only be carried out only by the Company or a Partner or third party acting based on the Company's authorisation, unless otherwise agreed by the Parties or otherwise stated by the Company.
- Shared use: you may use the Software on a permanent basis only with together with those other persons who use the Device with you on a permanent basis and who act as end users (including, without limitation, other persons who co-own the Device with you or who regularly share the use of the Device, like family members or other similar persons), but only in accordance with the terms of this Agreement. You shall also present this Agreement and the Documentation to those users you share the use with and draw their attention to its provisions, prior to the first use of the Software by them.
- Occasional use: you may temporarily permit the use of the Software to other persons who are lawfully using the Device (including without limitation family members, friends or acquaintances who may have legal control over the Device), but only in accordance with the terms of this Agreement. You shall also present this Agreement and the Documentation to such occasional users and draw their attention to the provisions of this Agreement and the Documentation prior to authorising such occasional use.
- You shall be liable for any shared or occasional use of the Software as set forth in Sections 1.6 and 1.7 above as well as for any act of any such persons involved in the shared or occasional use, as if you would have had carried out that act.
- Each of the following constitute a breach of this Agreement:
- decompiling, reverse engineering, disassembling into parts, analysing the structure or composition of the Software; circumventing any technical or other measures that may be taken to protect the Software; making or having made any modification, improvement, servicing or repair of the Software by any person other than the Company without the prior written consent of the Company; or any other unauthorised use of the Software;
- reproducing, distributing or creating a derivative work from the Software for any purpose without the prior written permission of the Company or beyond the scope of backup or copying the Documentation for private purpose as described above; permitting any other use of the Software beyond the shared or occasional use as described in Sections 1.6 and 1.7 above; or using the Software in a Device designed for any purpose other than the ones described in the above Preamble;
- removing, converting, modifying, changing the location or function of the Software or incorporation or integration of the Software in any other transport or other device without the prior written permission of the Company; using the Software in any Device other than as provided in the Software Agreement or using the Software in a Device operated in an unlawful manner.
- Based on the above, you may not sell, lend, rent, or lease the Software. You are also not entitled to use the Software in more than one Device, or other devices, to share the Software with or transfer the Software to another person on a permanent basis, except for the shared use of the Device. The prohibition of transfer under this clause does not apply to the lawful sale, inheritance or succession of ownership of the Device or the electric power drive system (in which the Software is incorporated) together with the incorporated Software, without any modification.
- In view of the above, if the User wishes to sell the Device without the Software, the User shall contact the Company to remove the Software and shall comply with the terms of the Contract and the Company's instructions.
- OBLIGATIONS OF THE USER AND COMMUNICATION BETWEEN THE PARTIES
- You shall:
- use the Software at all times in accordance with the terms of this Agreement and the Documentation and any other instructions that the Company may provide;
- use the Software only in a Device that is lawfully installed and used;
- have the appropriate qualifications, knowledge, condition and documentation to the safe usage and maintenance the Device at all times while using the Software in the Device as described above; assign the shared or occasional use of the Software or the Device (in which the Software is incorporated) to only such persons who meet the above described requirements;
- comply with and deliver on your contractual obligations with the Company;
- contact exclusively the Company, the Partner or other third party designated or authorised by the Company for any repair, improvement or other modification to the Software;
- notify the Company immediately upon becoming aware of any copyright infringement relating to the use of the Software;
- refrain from circumventing, violating, removing or disabling any protection or security or other technical or technological measures that the Company may have installed in or in connection with the Software;
- use the Software in a manner that does not violate the privacy or other rights of the Company or any third party or any applicable law.
- It should be emphasised that the Company shall provide support services solely on the basis of the relevant Service Agreement, in the lack of which the Company shall only perform support services as required by this Agreement or any other agreement it may have with you, by any applicable mandatory legal provisions or any support obligations voluntarily undertaken by the Company.
- The copy for the Software may be removed for repair, revision, development, upgrading or following termination or expiration of the Agreement for any reason exclusively by the Company, a Partner or other person designated or authorized by the Company. Accordingly, in the event of any failure or malfunction, revision, improvement or upgrade of the Software, as well as upon termination or expiration of the Agreement for any reason, you shall contact the Company immediately, but no later than one business day, to remove such copy of the Software. Similarly, any reinstallation or change in the physical location of the Software may only be made by the Company, a Partner or other person designated or authorised by the Company and you must contact the Company immediately, but no later than one business day.
- The Company's contact details for contractual communications in relation to this Agreement are: e-mail address: [firstname.lastname@example.org], postal address: [H-2120 Dunakeszi Pallag utca 26.]
- Unless otherwise provided in the Purchase Agreement, the Service Agreement or the Documentation, you shall contact the Company using the contact details set out in the above clause 2.4. Please note that any representations in relation to this Agreement must be in writing (including written representations sent by post, courier, or e-mail).
- WARRANTY AND LIMITATION OF LIABILITY
- The Company provides the Software in its actual state at the time of its transfer and with its features as described in the Documentation. The Company represents and warrants that you will not be hindered or restricted in your lawful use of the Software as set forth in this Agreement and the Documentation by any third-party rights.
- The Company will endeavour to keep the Software free from errors, defects and viruses, but the Company excludes all liability for damages in connection with the use of the Software, except its liability for intentional breach of contract or for damage to human life, physical integrity or health in accordance with Section 6:152 of Act V of 2013 on the Civil Code. Subject to the foregoing, the Company shall not be liable for any damages resulting from any software or other defects or malware; any use of the Software that does not comply with the Documentation or the Agreement - or with the Purchase Agreement or the Service Agreement, if you have entered into such a contract with the Company - ; the uninterrupted or error-free operation of the Software; any loss of profits; loss of data; any damages attributable to the User, the Partners or any third party; for any failure of the Device or any device other than the Software, excluding the Company's liability under the Sales Agreement with respect to the electric drive system provided to you by the Company under the Sales Agreement; for any interaction of the Software with any device, solution or other software, operating system or hardware; or for failing to deliver the expected user experience. The Company is also not liable for any telecommunications, utility, data traffic or other charges fees or charges associated with the use of the Software; or any unanticipated increases in such fees or charges.
- It should be highlighted that, although the Software may be used in a Device used for sporting purposes, its primary purpose is for use in Devices used by individuals for leisure purposes. Hence, the Company shall not be liable for any failure of performance or malfunction of the Devices used for sporting purposes, whether due to the Software or its error, or for failure to comply with any other requirement imposed by competition rule, the organiser of the competition or by any applicable law or regulation.
- It should be also emphasised that, unless otherwise provided in the Purchase Agreement or the Service Agreement, the Company shall not be liable for the compliance of the Device, any electric drive system, any incorporated or separate Software, or any part or component thereof with any law, regulatory or other decision, industry standard, certification, for any distribution, disposal, rental, leasing, installation, export, use outside Hungary or any other use by you or a Partner of the Device, even if it has been authorized by the Company.
- The Company shall also not be liable for any damage caused to third parties by the Device, any electric drive system, embedded or stand-alone Software, including in particular, but not limited to damages caused by the Device or the Software embedded in the Device to third parties (e.g: swimmers, other persons using the water, equipment, port, persons acting for or on behalf of the competent authority, persons staying on the water) resulting in injury, death, damage to property or any other damage, accident, personal injury or other breach of contract. This clause does not apply to any breach of contract caused intentionally by the Company or resulting in damage to human life, physical integrity or health.
- It shall be emphasized that the Company shall not certify any conformity or property of the Device, any electric drive system, any embedded or stand-alone Software, or any part or component thereof, nor shall it be obliged to obtain any certification or approval from any external organization or authority, unless otherwise agreed by the Parties.
- It should also be emphasised that if you store or otherwise process personal data in or through the Software, you are solely responsible as an independent data controller and must enter into a data processing agreement with the Company as data processor. In this context, you are obliged to notify the Company of the fact of the processing of personal data prior to its commencement and to consult the Company in this regard. In view of the above, the Company shall not be liable for any unlawful processing of data by you or any other person in connection with the Software, unless otherwise provided by law.
- The Company, a Partner or other person appointed or authorised by the Company or acting on its behalf shall have the right to access the Software as necessary for the purpose of improving, developing or maintaining the Software, in which respect you shall cooperate with the Company and the Partner or other person appointed or authorised by the Company or acting on its behalf.
- SCOPE OF THE CONTRACT, GOVERNING LAW
- This Agreement is concluded upon your acquisition of the Software commercially or upon the execution of the relevant agreement if you have entered into a Sales Agreement or a Services Agreement with the Company, and remains in effect until the termination of this Agreement.
- If you have concluded a Sales Agreement or a Services Agreement with the Company, the termination or expiry thereof shall terminate this Agreement only upon the agreement of the Parties to that effect, or this Agreement shall be terminated upon the expiry of the licence period applicable to the Software if the Parties agreed so. However, any termination or expiration of this Agreement for any reason shall terminate the Purchase Agreement and the Services Agreement between you and the Company, unless otherwise agreed by the Parties.
- Either Party may terminate this Agreement by giving notice of termination to the other Party unilaterally without giving any reason. In such case, this Agreement shall terminate upon the notice of termination.
- In the event of a breach of a material provision of this Agreement, either Party shall be entitled to terminate this Agreement with immediate effect by giving notice of termination to the other Party. However, if the breach of the above material provision is avoidable, the Party shall give the other Party at least 15 days' notice to remedy such breach, prior to termination with immediate effect. If such notice is not effective, the Party shall be entitled to terminate this Agreement with immediate effect. The followings qualify as a material breach of this Agreement:
- on your behalf: breach of the provisions relating to the use of the Software and your obligations as set out in clauses 1 and 2 of this Agreement; your breach on the provisions identified as material in the Purchase Agreement or the Service Agreement if you entered into such agreement with the Company
- breach on behalf of the Company: a defect in the operation of the Software for which the Company is solely responsible; the Company’s breach on the provisions of clause 1 of this Agreement related to the authorisation of use.
- In the event of termination or expiration of this Agreement as set forth above, you shall
- immediately cease using the Software (including any shared or occasional use);
- contact the Company immediately, but no later than within one business day, to remove the Software from the Device or the power drive system as well as cooperate fully with the Company in this regard, especially refrain from wasting time or incurring costs to the Company;
- pay or reimburse the Company for all fees due for the use of the Software and for the cost of repairing any damage to the Software for which you may be responsible promptly, and in any event no later than 5 business days after termination or expiration of the Agreement, or such other period as the Parties may agree.
- If you breach any material provision of this Agreement, the Company shall be entitled to restrict the operation and availability of the Software remotely to the extent it is not necessary for the safe operation of the Device.
- This Agreement shall be governed by Hungarian law. The competent Hungarian courts shall have jurisdiction in any dispute arising out of or in connection with this Agreement.
- DATA PRIVACY
- The Company's Privacy Notice is available on the Company's website at [www.ekraft.hu/hu/adatkezelesi-tajekoztato] and the latest version is attached to this Agreement. This Privacy Notice contains information about the processing of personal data by the Company as data controller as well about your related data protection rights and remedies available to you.
- This Agreement has been prepared in a Hungarian and English version. In case of divergence between the language versions of Annex 1, the English version shall prevail. In any other cases of divergence between the language versions of this Agreement, the Hungarian version shall prevail. The Company is not subject to any code of conduct.
- If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
- The failure of the Company to exercise or enforce any right under this Agreement shall not constitute a waiver of that right or provision.
- This Agreement does not grant any right to use the Company's trademark or any other designation. Without the Company's permission you shall not create the appearance that you have any business relationship with the Company or that your activities are sponsored by the Company in any other way than the Company performing its contractual obligations.
- The copyright notice required by the BSD licence is attached to this Agreement to indicate that an open source software component under the BSD licence has been used to create the Software. It should be emphasised, however, that the Software is provided by the Company expressly and exclusively as proprietary Software as described in this Agreement.
Annex 1: The 3-Clause BSD License
Copyright <2021> <eKraft Europe Kft.>
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.