End User License Agreement (EULA)

Effective Date: 01 September 2024

This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or an entity, referred to herein as “Customer”, “End User” or “You”) and Raiqon GmbH (“Raiqon”), a company incorporated under the laws of Germany, with its principal place of business at Schelmenwasenstr. 32, 70567 Stuttgart (“Company” or “Licensor”), for the use of the products of Raiqon (the “Software”).

By downloading, accessing, installing, or using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not install or use the Software.

Raiqon grants the Customer a non-exclusive, non-transferable and non-perpetual subscription license to use the Software. By virtue of accepting the terms and conditions established in this EULA the Customer does not acquire any ownership of copyright or other intellectual property rights in any part of the Software. The Customer is only entitled to use the Software in accordance with the terms and conditions set forth in this EULA.

  1. License Grant and Restrictions
    1. On-Premise License: Subject to the terms and conditions of this EULA, Licensor hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited license to install and use the Software on Your premises solely for Your internal business operations.
    2. SaaS License (or “Cloud Software”): If You are using the Software through the SaaS model, the Licensor grants You a non-exclusive, non-transferable, non-sublicensable right to access and use the Software over the internet, subject to the applicable usage limits and terms described in the subscription agreement or invoice.
    3. Raiqon will use commercially reasonable efforts to make the Cloud Software available at least 99.0% of the time, as measured monthly, subject to the exclusions set forth below and also excluding scheduled downtime and any time necessary to implement any updates or other modifications to the Cloud Software (“Uptime Target”). Raiqon will notify Customer at least twenty-four (24) hours prior to any scheduled downtime and will use commercially reasonable efforts to minimize the effect of such maintenance. The Uptime Target shall not apply in the event of any causes beyond the reasonable control of Raiqon or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the internet generally, or any actions or inactions of Customer or any third party.
    4. Restrictions: Customer agrees not to: (a) decompile, decrypt, disassemble, reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software; (b) distribute, lend, lease, sell, transfer, grant sublicenses to, or otherwise make available the Software (or any portion thereof) to parties other than authorized Users; (c) create modifications to or derivative works of Software; (d) reproduce the Software; (e) attempt to modify, alter, or circumvent any license control mechanisms within the Software; (f) use or transmit the Software in violation of any applicable laws, including, without limitation, any data privacy or data protection laws; (g) allow access or permit use of the Software by anyone other than Users; (h) in any way access, use, or copy any portion of the Documentation or Software (including the logic and/or architecture thereof and any trade secrets included therein) to develop, promote, distribute, sell or support any product or service that is competitive with any Raiqon products or services; or (h) remove, obscure, or alter any copyright notices or any name, logo, tagline, or other designation of Raiqon displayed within the Documentation, Software or output therefrom (“Raiqon Marks”). 
  1. Intellectual Property Rights

As between the parties: (a) Customer shall retain ownership of all Customer Information, Customer intellectual property, requirements and other content of any kind uploaded by Customer and its Users through the Software (collectively, “Customer Data”); and (b) Raiqon and its suppliers will retain all right, title and interest in and to the Raiqon Marks, Software, Documentation, the Deliverables, and other derivative works of the Software and/or Documentation, including any and all intellectual property and other proprietary rights to the foregoing. Notwithstanding anything to the contrary herein, Raiqon may freely use and incorporate into Raiqon’s Software and services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users. Raiqon may monitor, collect, use, and aggregate Customer Content and data pertaining to use of the Software for purposes of conducting analysis, including providing support, verification of security and data integrity, capacity planning, improving and developing Raiqon products and services, and benchmarking, provided that such data will only be disclosed in an anonymous form in a way that neither Customer nor any User can be identified from such data. 

  1. Term and Termination
    1. Either party may terminate this Agreement and/or an Order(s) entered pursuant hereto upon written notice to the other party if the other party materially breaches any term of this Agreement or the applicable Order and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party. The terms of this Agreement shall remain in effect with respect to any Order which has not been terminated as of the date of termination of this Agreement.
    2. Effect of Termination: Upon termination, You must cease all use of the Software and delete all copies of the Software, including backup copies.
  1. Fees and Payment
    1. Subject to the terms and conditions below, all fees for the Software licenses and/or Professional Services will be set forth on the applicable Order. Unless otherwise agreed to in writing by the parties, Customer will pay to Raiqon or, if applicable, one of its authorized resellers all undisputed fees owed within thirty (30) days after Customer’s receipt of an invoice pertaining thereto. Raiqon may charge interest on late payments at the lesser of 1.0% per month or the maximum rate permitted by law
    2. All fees are non-refundable, unless otherwise required by applicable law.
  1. Data Protection and Privacy
    1. SaaS Model: When using the Software as a SaaS solution, Your data may be processed by Licensor in accordance with its privacy policy. By using the Software, You agree to such data processing.
    2. On-Premise Model: For on-premise installations, You are responsible for complying with all applicable data protection and privacy regulations, including the General Data Protection Regulation (GDPR) of the European Union.
  1. Limited Warranty and Disclaimer
    1. Professional Services Warranty: Raiqon represents and warrants that it will perform all Professional Services in a professional manner consistent with industry standards and practices. In the event of any breach of this warranty, Customer shall provide written notice of such breach to Raiqon within thirty (30) days of completion of the Professional Services, and Raiqon shall, as its sole liability and Customer’s sole remedy, reperform the defective Professional Services. 
    2. Limited Software Warranty. For Self-Hosted Software, Raiqon represents and warrants for a period of ninety (90) days after Self-Hosted Software is first made available to Customer, that the Self-Hosted Software, when used as permitted under this Agreement and in accordance with the Documentation, will perform in all material respects as described in the Documentation. For Cloud Software, Raiqon represents and warrants that during the Subscription Term, the Cloud Software, when used as permitted under this Agreement and in accordance with the Documentation, will perform in all material respects as described in the Documentation. Raiqon represents and warrants that upon delivery, the Software will not contain any Harmful Code. In the event of any breach of the warranties in this Section, Raiqon shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies after receipt of written notice from Customer. If Raiqon determines that it is unable to remedy the deficiency, Raiqon will refund to Customer a pro-rata portion of the fees actually paid by Customer to Raiqon for the defective Software and, Customer’s right to use that Software will terminate. Raiqon will not be liable to the extent that any breach of the foregoing warranties are caused by: (a) third-party components (including in combination with the Software) not provided by Raiqon or any open source components or freeware; (b) modifications to the Software other than provided by Raiqon as part of Maintenance and Support; (c) unauthorized use or use of the Software other than in accordance with the Documentation; (d) Harmful Code introduced by Customer or its Users; or (e) use of any version of the Software other than the most recent version made available to Customer (collectively, “Exclusions”). 
    3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE SOFTWARE, PROFESSIONAL SERVICES, AND DELIVERABLES, ARE PROVIDED “AS IS” AND RAIQON HEREBY DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS, NONINFRINGEMENT, TITLE, ACCURACY, AND COURSE OF DEALING. RAIQON DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE. RAIQON’S SUPPLIERS MAKE NO WARRANTIES DIRECTLY TO CUSTOMER HEREUNDER AND RAIQON’S SUPPLIERS SHALL HAVE NO LIABILITY PURSUANT TO THIS AGREEMENT. 
  1. Limitation of Liability
    1. IN NO EVENT SHALL RAIQON BE LIABLE TO CUSTOMER, USERS, OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT, AND HOWEVER CAUSED, EVEN IF RAIQON IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
    2. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF RAIQON TO CUSTOMER, USERS, OR ANY THIRD PARTY, EXCEED THE FEES PAID BY CUSTOMER DURING THE PREVIOUS TWELVE (12) MONTH TERM.
  1. Indemnification
    1. Raiqon will defend and indemnify Customer from all damages, costs, and expenses arising from any claim or suit by a third party against Customer alleging that the Software infringes any trademark, copyright, or trade secret recognized in the United States, Canada or any member country within the European Union (a “Claim”). If the Software (or any component thereof) becomes, or in Raiqon’s reasonable opinion is likely to become, the subject of an infringement claim, Raiqon may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement; or (b) replace or modify the Software so that it is non-infringing and reasonably functionally equivalent. If neither of the foregoing options are commercially reasonable, Raiqon may terminate the applicable Order and refund to Customer a pro-rata portion of the applicable prepaid fees. Raiqon’s obligation as set forth in this paragraph is expressly conditioned upon the following: (i) Raiqon shall be notified promptly in writing by Customer of any Claim; (ii) Raiqon shall have sole control of the defense or settlement of any Claim; (iii) Customer shall cooperate with Raiqon in a reasonable way to facilitate the settlement or defense of any Claim; and (iv) the Claim does not arise from any combination of the Software with non-Raiqon programming or devices. 
    2. Raiqon’s indemnification obligations shall not apply to the extent that any Claim or liability results from any Exclusion or continued use of the Software after Customer has been made aware of a potential infringement claim. This Section states Raiqon’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions. 
    3. Customer will defend and indemnify Raiqon from all damages, costs, and expenses arising from or relating to the Customer Content or Customer’s failure to comply with Raiqon’s Acceptable Use Policy. Customer’s obligation is expressly conditioned upon the following: (a) Customer shall be notified promptly in writing by Raiqon of any claim; (b) Customer shall have sole control of the defense of any indemnified claim or suit; and (c) Raiqon shall cooperate with Customer in a reasonable way to facilitate the settlement or defense of any claim.
  1. Acceptable Use. 

Neither Customer nor any User shall use the hosting services or Software in connection with any: (a) infringement or misappropriation of any intellectual property right of any third party; (b) defamation, libel, slander, obscenity, or violation of the rights of privacy or publicity of any third party; or (c) other offensive, harassing or illegal conduct. Customer shall, and will ensure that all Users shall, comply with the terms and conditions of the Acceptable Use Policies pertaining to the use of the hosting services and Software as provided or made available by Raiqon. 

  1. Confidentiality.
    1. General. Each party acknowledges that it may have access to certain confidential information of the other party (“Discloser”). “Confidential Information” shall include, but not be limited to, this Agreement, the Software, Customer Content, each party’s proprietary technology and trade secrets, and all information concerning the Discloser’s business, plans, customers, products, services, technical know-how, patent applications, suppliers, product roadmaps, concepts, ideas, methods and procedures of operations, marketing plans and materials, and financial information, and which the Discloser, in the case of tangible disclosures, marks as “Confidential” or with a similar legend, or in the case of nontangible disclosures, designates as confidential at the time of disclosure; provided, however, that regardless of whether so marked or designated, any information which the receiving party (“Recipient”) knows or reasonably should know is confidential or proprietary to the Discloser shall be deemed Confidential Information of the Discloser. 
    2. Protection of Confidential Information. Each party shall: (i) maintain the Discloser’s Confidential Information in confidence and shall not disclose Confidential Information, or any portion thereof, to any third party, and shall protect the Confidential Information with at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no case less than reasonable care; (ii) restrict disclosure of Confidential Information solely to employees, contractors, and professional advisors of the Recipient who have a need to know such Confidential Information in connection with this Agreement; provided such employees, contractors, and professional advisors are bound to confidentiality obligations no less restrictive than the terms of this Agreement before they receive such Confidential Information; and (iii) use Confidential Information received from Discloser only as authorized herein. These obligations will last for a period of five (5) years from the date of return or destruction of the Confidential Information, regardless of when this Agreement terminates. 
    3. Exclusions from Confidential Information. The obligations in the above Sections do not apply to Confidential Information that: (a) is or becomes publicly available through no fault of Recipient; (b) was known by Recipient without a confidentiality obligation prior to receipt from Discloser; (c) is provided to Recipient without an obligation of confidentiality by a third party who has no obligation to Discloser; or (d) is lawfully and independently developed by Recipient without use of or reference to Discloser’s Confidential Information. 
    4. Required Disclosures. If Recipient becomes subject to an order that requires Recipient to disclose Confidential Information, Recipient will, to the extent permitted by law: (a) promptly notify Discloser of the order’s terms and the circumstances surrounding its issuance; (b) consult in good faith with Discloser regarding possible responses to the order and, if requested by Discloser, make reasonable efforts to narrow the order’s scope, obtain a protective order from the court, or produce documents to the court or government body under seal with appropriate instructions regarding preservation of the information’s confidentiality; and (c) disclose only the Confidential Information that, in the opinion of Recipient’s counsel, is legally required to be disclosed, consistent with a reasonable interpretation of the order.
  1. Governing Law and Jurisdiction

This EULA is governed by and construed in accordance with the laws of Germany, without regard to its conflict of law principles. Any disputes arising under or in connection with this EULA shall be subject to the exclusive jurisdiction of the courts of Stuttgart, Germany.

  1. Miscellaneous
    1. Customer agrees that Raiqon may use Customer’s name and logo in advertisements, other promotional material and the Raiqon’s website. 
    2. Amendments: Licensor reserves the right to modify or amend this EULA at any time. Such changes will be effective upon notice to You or upon Your continued use of the Software.
    3. Severability: If any provision of this EULA is held invalid or unenforceable, the remaining provisions will remain in full force and effect.
  1. Entire Agreement: This EULA constitutes the entire agreement between the parties regarding the use of the Software and supersedes any prior agreements, understandings, or communications.