End-User License Agreement for Liquid Office (v1.1l, PDF version)
§ 1 (DEFINITIONS): For the purpose of this End-User License Agreement (hereinafter “EULA”) the following capitalized terms have the following meanings:
(a) “ILIA”: the individual enterprise, registered under the European Tax Identification Code ATU 6718 4334 and based in Vienna, Austria.
(b) “BUSINESS PARTNER”: a professional within the meaning of Art. 6 (1) of the Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I).
(c) “PARTIES”: the parties to this EULA, i.e. ILIA and BUSINESS PARTNER.
(d) “CONTRACT VALUE”: the payment actually made by BUSINESS PARTNER and received by ILIA for using the PRODUCT.
(e) “FENG OFFICE”: a project management software, provided by FengOffice Secure Data SRL.
(f) “PRODUCT”: a suite of mobile business applications, marketed by ILIA under the brand name “Liquid Office”, which allows to connect mobile devices of BUSINESS PARTNER via the Apache 2.0 licensed “Liquid Office plug-in for Feng Office” to existing installations of FENG OFFICE.
(g) “DIRECT DAMAGES”: all the payments made under this EULA by BUSINESS PARTNER to ILIA during periods of non-availability of the PRODUCT.
§ 2 (EXCLUSIVELY B2B): (1) ILIA offers its PRODUCT exclusively to BUSINESS PARTNERS. By using the PRODUCT, users
(a) confirm, that they are BUSINESS PARTNERS and
(b) agree without any reservation to this EULA.
(2) Entities, that do not fully accept each provision of this EULA must neither download nor use the PRODUCT.
§ 3 (LICENSE, NOT A SALE): The PRODUCT is not sold to BUSINESS PARTNER, but licensed. BUSINESS PARTNER may use the PRODUCT only under the terms of this EULA. ILIA reserves all rights not expressly granted to BUSINESS PARTNER.
§ 4 (GRANTED USE): This EULA is limited to a non-transferable license to use the PRODUCT on any mobile device that BUSINESS PARTNER owns or controls. This EULA does not allow BUSINESS PARTNER to use the PRODUCT on any device that BUSINESS PARTNER does not own or control, and BUSINESS PARTNER may not distribute or make the PRODUCT available over a network where it could be used by multiple devices at the same time. BUSINESS PARTNER may not rent, lease, lend, sell, redistribute or sub-license the PRODUCT. BUSINESS PARTNER may not copy (except as expressly permitted by this EULA), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the PRODUCT, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the PRODUCT). Any attempt to do so is a violation of the rights of ILIA and its licensors. If BUSINESS PARTNER breaches this restriction, BUSINESS PARTNER may be subject to prosecution and damages. The terms of this EULA will govern any upgrades provided by ILIA that replace and/or supplement the original PRODUCT, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
§ 5 (DURATION): This EULA is effective until terminated by BUSINESS PARTNER or ILIA. BUSINESS PARTNER’s rights under this EULA will terminate automatically without notice from ILIA if BUSINESS PARTNER fails to comply with any term(s) of this EULA. Upon termination of this EULA, BUSINESS PARTNER shall cease all use of the PRODUCT, and destroy all copies, full or partial, of the PRODUCT.
§ 6 (DUE DILIGENCE): The PRODUCT has been developed with due diligence. However, due to the complexity of the PRODUCT and the fact that the PRODUCT is based upon open sourced middle ware, unexpected behavior of the PRODUCT can only be reduced, but not completely excluded. Therefore, BUSINESS PARTNER declares to have carefully read, understood and freely agreed to this EULA, especially that
(a) the PRODUCT is based upon the Apache 2.0 licensed “Liquid Office plug-in for Feng Office”, connecting PRODUCT to existing installations of FENG OFFICE;
(b) taking own precautions, especially not using the PRODUCT uncritically, prevents or at least reduces potential damage to property and/or injury to persons of BUSINESS PARTNER and third parties, that may otherwise result from unexpected behaviour of the PRODUCT;
(c) providing feedback to ILIA in a timely manner, prevents or at least reduces damage to property and/or injury to persons of BUSINESS PARTNER as well as other entities.
§ 7 (PERSONAL SCOPE OF DISCLAIMER): The limitations of liability according to this EULA shall apply in favour of
(b) mutatis mutandis – BUSINESS PARTNER;
(c) any legal representative, employee, vicarious agent, sub-contractor or any other person acting on behalf of ILIA and/or BUSINESS PARTNER.
§ 8 (LIMITATION OF LIABILITY): (1) ILIA shall, irrespective of the legal basis (contract, tort or otherwise), not be liable for any damages or expenditures arising out of or related to the performance or non-performance according to this EULA. This exclusion of liability does not apply
(a) in case of intentional misconduct or
(b) to extreme gross negligence (Austrian Supreme Court, RS0016582) or
(c) to actions, which result in death and/or personal injury, or
(d) in cases required by compulsory law or statute.
(2) With respect to DIRECT DAMAGES caused by gross negligence of ILIA, the overall liability of ILIA shall be limited to the maximum of hundred percent of the gross total CONTRACT VALUE irrespective of
(a) the number of events which cause liability or
(b) the fact whether the contract for using the PRODUCT has ceased or not.
(3) With respect to DIRECT DAMAGES caused by ordinary negligence of ILIA, the overall liability of ILIA shall be limited to the maximum of twenty-five percent of the gross total CONTRACT VALUE irrespective of
(a) the number of events which cause liability or
(b) the fact, whether the contract for using the PRODUCT has ceased or not.
(4) Claims for compensation of DIRECT DAMAGES may only be asserted by BUSINESS PARTNER, provided that,
(a) BUSINESS PARTNER has notified ILIA of the non-availability of the PRODUCT explicitly under this provision and in writing,
(b) ILIA did not respond within 90 days,
(c) BUSINESS PARTNER can prove, that the non-availability was caused by ILIA, and
(d) the period of time of non-availability already exceeded five percent of the duration of this EULA.
(5) Damages of BUSINESS PARTNER other than those explicitly named in this EULA, based on contract, tort or any other legal reason, in particular, claims for loss of profits or revenues and consequential damage, are excluded, unless explicitly declared mandatory according to statutory law.
§ 9 (LIMITATION OF CLAIMS): Claims and rights associated with this EULA expire within six months after BUSINESS PARTNER or ILIA have gained knowledge of the damage and the liable PARTY and unless otherwise stipulated under mandatory law.
§ 10 (AMENDMENTS): Amendments to this EULA can only be done in written form and require unanimous vote of ILIA and BUSINESS PARTNER.
§ 11 (SEVERANCE PROVISION): When any provision of this EULA is held in whole or in part to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which this provision or relevant part is intended to be effective, the provision or relevant part of that extent is deemed not to form part of the EULA but the validity and enforceability of the remaining part of this EULA is not affected. The provision of this EULA, held in whole or in part to be illegal, invalid or otherwise unenforceable shall be replaced by a legal, valid and enforceable provision, whose effects are as close as possible to the economic objectives pursued by ILIA and BUSINESS PARTNER with the illegal, invalid or otherwise unenforceable provision respectively.
§ 12 (GOVERNING LAW): This EULA is governed by and construed in accordance with the laws of the Republic of Austria, excluding its conflict of law rules. The venue of any cause of action is the court of competent jurisdiction in the city of Vienna, Austria.