VERISCAN™ SYSTEM LICENSE AGREEMENT: MOBILE DEVICE

Last Updated January 1, 2016
 

PLEASE READ ALL OF THE FOLLOWING VERISCAN™ SYSTEM LICENSE AGREEMENT BEFORE USING THE LICENSED SOFTWARE AND THE VERISCAN™ SYSTEM WTH THE APPLICATION (TERMS DEFINED BELOW). By using the Licensed Software and the VERISCAN™ SYSTEM on a Mobile Device through an Application available in the Apple Store and through the In-App Purchase API (terms defined below), you understand, acknowledge and agree to be bound by the terms and conditions of (a) this VERISCAN™ SYSTEM License Agreement (this "Agreement"), and the terms and conditions of our PAMP Website Terms & Conditions (the “Website Agreement”) and our PAMP Data Privacy Policy (the "Privacy Policy"). (This Agreement, the Website Agreement and the Privacy Policy are hereinafter referred to collectively as the “Agreements”); (b) the Application and the Apple In-App Purchase API (terms defined below); and (c) the Mobile Device. The terms of this Agreement shall govern in case of any conflict with the terms of the Website Agreement and the Privacy Policy.

IF YOU DO NOT AGREE TO BE BOUND BY THE ABOVE TERMS (AS DESCRIBED IN FURTHER DETAIL BELOW) YOU MAY NOT USE THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM OR THE APPLE IN-APP PURCHASE API.

THIS AGREEMENT CONTAINS IMPORTANT DISCLAIMERS AND LIMITATIONS OF LIABILITY.  WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE VERISCAN™ SYSTEM UTILIZING THE LICENSED SOFTWARE IS ACCESSED AND USED SOLELY AT YOUR OWN RISK, AND PROVIDES A SURFACE SCAN THAT HAS INHERENT LIMITATIONS AND DOES NOT GUARANTEE OR ASSURE AUTHENTICITY OR CORRECT, ACCURATE OR CONSISTENT RESULTS OR THAT OUR PRODUCTS, OR ANY OTHER PRODUCTS THAT WE MAY FROM TIME TO TIME AUTHORIZE TO BE SCANNED, ARE NOT COUNTERFEIT OR HAVE NOT BEEN TAMPERED WITH.  FOR EXAMPLE, THE VERISCAN™ SYSTEM UTILIZING THE LICENSED SOFTWARE ON ITS OWN, EVEN WHEN PROPERLY AND SKILLFULLY USED, IS NOT GUARANTEED TO DETECT IF THE PRODUCT WAS HOLLOWED OUT AND THE METAL INSIDE REPLACED WITH A LESSER VALUED MATERIAL.  THERE ARE OTHER FACTORS WHICH COULD CAUSE THE LICENSED SOFTWARE AND THE VERISCAN™ SYSTEM TO REPORT FALSE POSITIVES OR FALSE NEGATIVE RESULTS.  

The terms “we”, “our “, us” or “our” means PAMP S.A., a Swiss corporation and its domestic and foreign legal subsidiaries and affiliates. “you”, “your” or “yours” means the person or entity who is being licensed to use the Licensed Software . (you and PAMP each, a “Party” and collectively, the “Parties”).

 

1. DEFINITIONS

1.1 Definitions. Capitalized terms in this Agreement will have the following meanings: 
“Application” means applications, websites and services with which the Licensed Software and the VERISCAN™ SYSTEM are integrated in order to provide you the Licensed Software and the VERISCAN™ SYSTEM on a Mobile Device (defined below) and which are available to you through an Application Store (defined below), as well as related Documentation (defined below).
“Application Store” means a digital distribution platform for computer software including Applications. 
“Apple” means Apple, Inc., a California corporation or an affiliate thereof.
 “Apple Pay” means the Apple application program for use in, and to process subscriptions, renewals and payment transactions, and tax payment, collection remittance, and other functionality.
“App Store” means the Application Store branded, and owned and/or controlled by Apple.
“In-App Purchase API” means the Apple application program interface(s) that markets, solicits and obtains orders from end-users, and enables end-users to send payment information to an Application to be used in, and to process subscriptions, renewals and payment transactions made through the Apple Pay Application, and tax payment, collection, remittance and other payment-related functionality.
“Licensed Software” means certain proprietary software products including, without limitation the Application, and the Sublicensed Software (defined below) being provided to you under this Agreement, as well as the related Documentation (defined below).
“Mobile Device(s)” a wireless, web-enabled hand held mobile computing device utilizing an mobile operating system that interconnects and works with the In-App Purchase API, the Licensed Software and the VERISCAN™ SYSTEM.
“Sublicensed Software” means certain third party owned or licensed software and components being provided under this Agreement, embodying or that are required to properly enable or operate the Licensed Software.
“VERISCAN™ SYSTEM” means the Licensed Software, certain additional equipment, parts and consumables that together constitute our confidential and propriety or licensed technology that when utilized properly are designed to provide a surface scan of our products, and other products that we may from time to time authorize to be scanned.

 

2. SOFTWARE LICENSE, RIGHTS & RESTRICTIONS
 

2.1 Software License and Rights; Reservation of Rights. Subject to the provisions contained in this Agreement, and provided and for so long as you are in strict compliance with the terms and conditions of the Agreements, we hereby grant to you a limited, revocable, personal, non-sublicensable, non-exclusive, non-transferrable and non-assignable license to use the Licensed Software and the VERISCAN™ SYSTEM solely in order to perform scans of our products, and other products that we may from time to time authorize to be scanned. No title to the Licensed Software to the VERISCAN™ SYSTEM is sold or transferred hereby and your rights hereunder are strictly limited as set forth herein. Without limiting the foregoing, we hereby reserve any and all rights not expressly and explicitly granted in this Agreement including, without limitation, our right to license the Licensed Software and the VERISCAN™ SYSTEM to one or more third persons and entities in our sole and absolute discretion.
2.2 Restrictions. Without limiting the generality of the foregoing, you will use the Licensed Software, the VERISCAN™ SYSTEM and the Confidential Information (defined below) only for purposes set forth herein, and, further, you expressly agree that you DO NOT have rights to do (or allow any third party to do) any of the following:  (a) own any right, title or interest, or have any right to transfer, convey or provide any right title or interest in or to the Licensed Software, or the VERISCAN™ SYSTEM to another person or entity;
(b) sell, license, publish, display, distribute, or sublicense or otherwise transfer, convey, lend or provide any copy, in whole or in part, or any right, title or interest in relation to the Licensed Software or the VERISCAN™ SYSTEM, to any third person or entity;
(c) use or permit others the use of, the Licensed Software, or the VERISCAN™ SYSTEM in any manner not expressly authorized by us in writing in advance;
(d) pledge, hypothecate, alienate or otherwise encumber the Licensed Software, or the VERISCAN™ SYSTEM to, or for the benefit of, any third person or entity;
(e) modify, alter, enhance, reverse-engineer, decompile, disassemble or create substantially derived forms of the Licensed Software or the VERISCAN™ SYSTEM, any derivative works based on the Licensed Software or the VERISCAN™ SYSTEM or any device to perform the same or similar functions as the Licensed Software or the VERISCAN™ SYSTEM; 
(f) make any statement, representation, warranty, guarantee or claim, whether written, oral or digital, to any person or entity, either directly or indirectly, about, involving or in any way related to the Licensed Software or  the VERISCAN™ SYSTEM including, without limitation, as to its capabilities or the results that may be obtained by its usage, other than as we may expressly authorize in writing in advance  
You shall also (a) fully comply with the instructions received from us or our authorized distributors for the use of the Licensed Software and the VERISCAN™ SYSTEM, and (b) take all security precautions to avoid unauthorized use of the Licensed Software and the VERISCAN™ SYSTEM.
You may not access or use the Licensed Software, or the VERISCAN™ SYSTEM in any manner that could (a) damage, disable, overburden or impair the Licensed Software, or the VERISCAN™ SYSTEM (or any server or network to which any of them are connected), or (b) use any of them in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement.
2.3 Representations. By accepting this Agreement and/or using the Licensed Software and the VERISCAN™ SYSTEM, you represent and warrant, on acceptance of this Agreement and for so long as you shall use the Licensed Software and the VERISCAN™ SYSTEM that all information or data provided by you to us, either directly or through the App Store or the Apple In-App Purchase API in connection with the Agreements during the licensing process through the end of the term of this Agreement is true and accurate. You further represent and warrant that you are duly authorized to enter into this Agreement for and on behalf of any person or entity specified during the initial registration process for the Licensed Software. Should any of these representations or warranties prove untrue at any time, we or Apple may, in our sole and absolute discretion, immediately discontinue your access to and disable your use of the Licensed Software and the VERISCAN™ SYSTEM without notice and without recourse by you.
2.4 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement, and you hereby agree to cooperate with such inspection and enforcement, and to promptly notify us of any known violations of such restrictions and covenants.
2.5 Our Obligations. Upon execution of this Agreement and payment of the agreed upon license fee through the App Store and the Apple In-App Purchase API, and provided and only for so long as you continue in strict compliance with the terms and conditions of this Agreement, we will: 
(a) permit you to download or access a copy of the current version of the Licensed Software for your use in accordance with this Agreement;
(b) provide you with ongoing updates to the Licensed Software as we may consider needed in our sole and absolute discretion. In each such case, we will automatically provide access to such updates; and
(c) permit you to use the Licensed Software to the extent agreed upon at the time of your payment of the license fee, or as may be changed, altered or discontinued from time to time in our sole and absolute discretion.

 

3.    COPYRIGHT AND MARKS
 

3.1 Copyright; Open Source Software. The Licensed Software and the VERISCAN™ SYSTEM, including any documentation, printed material, computer readable and other media, packaging and illustrations (collectively, “Documentation”), is copyrighted and constitutes our valuable owned or licensed property. The Licensed Software and the VERISCAN™ SYSTEM are protected under copyright and trade dress laws and international treaty provisions. Any Open Source Software (defined below) that may be included within or accompanying the Licensed Software or the VERISCAN™ SYSTEM, is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Open Source Software.  As used herein “Open Source Software” means open source software components that are licensed to you under the terms of the applicable licenses agreements included with such open source software components or other materials.  Notwithstanding anything else in this Agreement to the contrary, this Agreement does not apply to any Open Source Software and we disclaim any and all liability to you or any third party related thereto.  
3.2 Trademarks. Certain logos, product names and trade-marks owned by us (collectively, “Trademarks”) may be contained within the Documentation and physical and electronic manifestations of the Licensed Software or the VERISCAN™ SYSTEM, or which we otherwise may make available to you. As a material condition of this license grant, you undertake: (a to promptly notify us and our authorized distributor of any actual or suspected third party infringement or misuse of any copyright, patent and/or trademarks (collectively, “Intellectual Property”) involving or in any way relating to the Licensed Software or the VERISCAN™ SYSTEM that comes to your knowledge; (b) at our request or the request of our authorized distributor, to give your full cooperation to us and our authorized distributor in respect of any claim, action, suit or proceeding (collectively, “Claim”) that We or our authorized distributor might bring in respect of any such infringement or misuse; (c) to promptly notify us and our authorized distributor of the assertion or commencement of any third party Claim disputing the validity of any Intellectual Property relating to the Licensed Software or the VERISCAN™ SYSTEM; and (d) to refrain from disputing in any way the validity of any Intellectual Property involving or relating to the Licensed Software or the VERISCAN™ SYSTEM.         

 

4. TITLE; OTHER REQUIRED EQUIPMENT: MOBILE APPLICATION. 
 

4.1 Title. You acknowledge that the Licensed Software, including any corrections, bug fixes, enhancements, updates or other modifications to the Licensed Software, together with any Documentation, whether made by us or any third party, are owned or licensed by us. You agree to protect the Licensed Software and VERISCAN™ SYSTEM from unauthorized use, reproduction, distribution or publication in electronic or physical form.
4.2 Other Required Equipment. Without limiting anything else in this Agreement, you understand, acknowledge and agree that in order to utilize the Licensed Software, you need to obtain and use certain additional equipment, parts and consumables from third parties (collectively, “Equipment”). We do not represent or warrant that the Licensed Software or Equipment is compatible with your hardware, software or other Equipment that you may have, purchase or acquire from third parties. You are responsible for purchasing, obtaining, connecting, integrating, maintaining and updating all telephones: computer hardware; Internet access services; and other Equipment or services needed to access and use the Licensed Software and the VERISCAN™ SYSTEM, and the terms of use and all costs and fees associated with the Equipment including, without limitation, Internet access or long distance charges incurred with regard to your access and use of our Licensed Software and the VERISCAN™ SYSTEM..
4.3 Mobile Application.  Access to, and utilization of, the VERISCAN™ SYSTEM on a Mobile Device requires, and are available through, Applications that may be accessed and downloaded from an Applications Store, including a payment API. The Mobile Device that you use must obtain and maintain an active internet connection through either a WiFi network or a cellular data plan, selected by you in your sole and complete discretion, and as to which selection, terms and conditions, compatibility, interoperability, connectivity, and operation we shall have and bear no responsibility or liability whatsoever.  As part of the installation process of the Applications, you may be changing your Mobile Device settings.  By installing the Applications, you agree to have approved such changes.  Such changes may include, without limitation, the following: allowing software updates of the Applications once a new version is released and showing notifications from the Applications; and allowing us and Apple or other third parties access to location-based information.  To uninstall the Applications, you will need to access and follow the uninstall procedures offered by your Mobile Device’s operating system.
4.4 App Store and Apple. The VERISCAN™ SYSTEM is designed to be accessed and utilized on a Mobile Device through an Application available in the App Store and through the Apple In-App Purchase API including, without limitation, enrolment and credential management, for which Apple is solely responsible.  In addition, payment for subscriptions of scans of our products, and other products that we may from time to time authorized to be scanned, is enabled through the Apple In-App Purchase API for which Apple is solely responsible. 
4.5 Notice Regarding Apple. You acknowledge that this Agreement is between you and us only, and not with Apple, and Apple is not responsible for the Application and the contents thereof, Apple has no obligation of any kind whatsoever to provide any maintenance and support services regarding the Application.   In case of the inability of the Application to conform with any applicable warranty, then you can notify Apple to terminate this Agreement and the scan subscription and Apple will refund the license fee, if any, as well as a pro rata portion of any scan subscription you paid for the remaining period of the term of the Agreement subsequent to termination.  Free scans are not reimbursable under any circumstances.  To the maximum extent permitted by law, Apple has no other warranty obligation whatsoever regarding the Application.  Apple is not responsible for addressing or processing any Claim by you or any third party relating to the Application, or your possession and/or use of the Application including, without limitation, (1) product liability Claims; (2) any Claim that the Application does not comply with any applicable law or regulatory requirements; and (3) Claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defence, settlement and discharge of any third party Claim that your possession and use of the Application infringes that third party’s intellectual property rights.  You agree to comply with any applicable third party terms when using the Application.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.  You hereby represent and warrant hereby that (1) you are not located in a country embargoed by the U.S. Government, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) that you are not listed on any U.S. Government list of prohibited or restricted parties. If we provide a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English language version shall prevail. 


5. WARRANTY AND INDEMNITY
 

5.1 Warranty. We warrant that we have the right to grant you a license to the Licensed Software and the Applications under and subject to the terms and conditions of this Agreement. We do not warrant, guarantee or accept, and hereby expressly disclaim, any condition or make any representation or warranty of non-infringement  or that the Licensed Software or the VERISCAN™ SYSTEM will meet your requirements or that the use of the Licensed Software or the VERISCAN™ SYSTEM will be uninterrupted or error-free. No Documentation, verbal or written statements, information or data provided by us, either directly or indirectly, will create or continue a warranty or in any way create or increase our liability, and you will not rely on such information or data.  We do not warrant, and hereby expressly disclaim, that Apple has the right to grant you a license to the App Store or the Apple In-App Purchase API or any other matter as to the Intellectual Property rights in or to the App Store or the Apple In-App Purchase API including, without limitation, as to ownership, right to use or non-infringement with respect to the Apple Store or the Apple In-App Purchase API including, without limitation, with respect to your use or inability to properly use, or misuse the Applications, which may be affected by, among other things, training and exposure conditions or other ambient conditions. These are among many factors which could cause the Licensed Software, the VERISCAN™ SYSTEM or the Application to report false positive or false negative results. 
5.2 DISCLAIMER. THERE ARE NO WARRANTIES FOR SERVICES OR PRODUCTS. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES, OR ACCEPT ANY CONDITIONS EXCEPT THOSE EXPRESSLY STATED IN SECTIONS 5.1 ABOVE. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES AND JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS. THEREFORE, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, AND ALL DOCUMENTATION AND OTHER INFORMATION AND DATA ARE PROVIDED “AS IS”, “WHERE IS”, AND “WITH ALL FAULTS”. WE DO NOT AND CANNOT REPRESENT OR WARRANT THE PERFORMANCE, QUALITY, CONSISTENCY OR RESULT YOU MAY OBTAIN BY USING THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, MOBILE DEVICE OR THE APPLE IN-APP PURCHASE API.

WITHOUT LIMITING THE FOREGOING, WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INVOLVING OR REGARDING THE ACCURACY, CORRECTNESS AND COMPLETENESS OF THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, AND PRODUCTS ASSOCIATED WITH OUR LICENSED SOFTWARE, OUR VERISCAN™ SYSTEM OR THE APPLE IN-APP PURCHASE API, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, NONINFRINGEMENT, OR TITLE, OF THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, AND PRODUCTS ASSOCIATED WITH OUR LICENSED SOFTWARE, OUR VERISCAN™ SYSTEM, THE APPLE IN-APP PURCHASE API OR MOBILE DEVICE. IT IS YOUR SOLE RESPONSIBILITY AND OBLIGATION TO INDEPENDENTLY AND FULLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, AND PRODUCTS ASSOCIATED WITH OUR LICENCED SOFTWARE, OUR VERISCAN™ SYSTEM, THE APPLE IN-APP PURCHASE API AND MOBILE DEVICE. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE, AND HEREBY EXPRESSLY DISCLAIM, THAT THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, THE APPLE IN-APP PURCHASE API OR MOBILE DEVICE ARE FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION INCLUDING, WITHOUT LIMITATION, FINANCIAL INFORMATION AND DATA.

Without limiting the forgoing, the Licensed Software, the VERISCAN™ SYSTEM, the Apple In-App Purchase API and Mobile Device  are subject at any time and from time to time to human, mechanical or other errors, oversights, mistakes, limitations, delays, service interruptions, (i) including, without limitation, as may be due in whole or in part to, related to or arising out of our, or Apple’s computer hardware and software, telecommunication and operating systems, databases, or business processes and procedures, (ii) as well as other problems inherent in, or which may be associated with, the use of the internet and electronic communications including, without limitation, force majeure events (See Section 11.4 below) as well as government, regulatory and acts and omissions of third persons or entities affecting or impacting the Licensed Software, the VERISCAN™ SYSTEM, or such communications, or the Apple In-App Purchase API or the Mobile Device. You acknowledge and agree that we are not responsible or liable for delays, failures, or other loss, cost, damage or expense including, without limitation, personal injury or property damage (collectively, “Loss”) as may be due, in whole or in part to, or caused by or resulting from any such problems or similar problems, in whole or in part.

WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE VERISCAN™ SYTEM UTILIZING THE LICENSED SOFTWARE IS ACCESSED AND USED SOLELY AT YOUR OWN RISK, AND PROVIDES A SURFACE SCAN THAT HAS INHERENT LIMITATIONS AND DOES NOT GUARANTEE OR ASSURE AUTHENTICITY OR CORRECT, ACCURATE OR CONSISTENT RESULTS, OR THAT OUR PRODUCTS, OR ANY OTHER PRODUCTS THAT WE MAY FROM TIME TO TIME AUTHORIZE TO BE SCANNED, ARE NOT COUNTERFEIT OR HAVE NOT BEEN TAMPERED WITH.  FOR EXAMPLE, THE VERISCAN™ SYSTEM UTILIZING THE LICENSED SOFTWARE ON ITS OWN, EVEN WHEN PROPERLY AND SKILLFULLY USED, IS NOT GUARANTEED TO DETECT IF THE PRODUCT WAS HOLLOWED OUT AND THE METAL INSIDE REPLACED WITH A LESSER VALUED MATERIAL. THERE ARE OTHER FACTORS WHICH COULD CAUSE THE LICESNED SOFTWARE AND THE VERISCAN™ SYSTEM TO REPORT FALSE POSITIVES OR FALE NEGATIVE RESULTS 

This Agreement, and our providing you with access and use of the Licensed          Software and the VERISCAN™ SYSTEM: (a) is not, and should not be construed as, an offer to buy or sell, or as a solicitation of an offer to buy or sell, any regulated or unregulated products, securities or investments; (b) does not and should not be construed as acting to sponsor, advocate, endorse or promote any regulated or unregulated products, securities or investments; (c) do not, and shall not be construed as, making any recommendation or providing any investment or other advise with respect to the purchase, sale or other disposition of any regulated or unregulated products, securities, or investments including, without limitation that any particular transaction is appropriate or suitable for any investment objective or financial situation of any prospective investor. A decision to invest in any regulated or unregulated products, securities or investments should not be made in reliance on any of the information or materials accessible through the Licensed Software or the VERISCAN™ SYSTEM. Before making any investment decision, prospective investors should seek advice from their financial, legal, tax and accounting advisors, take into account their individual investment needs and circumstances and carefully consider the risks associated with such financial decision.         


6. LIMITATION OF LIABILITY AND REMEDIES
 

6.1 LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU OR ANY OTHER PERSON OR ENTITY, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION OR DATA, THE COST OF RECOVERING LOST INFORMATION OR DATA, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY OR OTHER LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, MOBILE DEVICE, (INCLUDING, WITHOUT LIMITATION, ITS SELECTION, HARDWARE, SOFTWARE, TERMS AND CONDITIONS, COMPATABILITY, INTEROPERABILITY, CONNECTIVITY AND OPERATION)  THE APPLICATIONS, THE APPLE STORE, OR THE APPLE IN-APP PURCHASE API (INCLUDING, WITHOUT LIMITATION, THE ENROLMENT, CREDENTIALS MANAGEMENT, SUBSCRIPTION AND PAYMENT PROCESSES HANDLED ON A MOBILE DEVICE BY APPLE THROUGH AN APPLICATION AVAILABLE THROUGH THE APP STORE AND THROUGH APPLE IN-APP PURCHASE API). REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES IN RESPECT OF ANY AND ALL CLAIMS. OUR AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO ONE HUNDRED ($100.00) U.S. DOLLARS. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS OR LIABILITY, EVEN IF SUCH LOSS OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR, SHALL BEAR NO LIABLITY, AND YOU SHALL HOLD US HARMLESS FROM AND AGAINST, ALL ERRORS, DELAYS AND ANY OTHER PROBLEMS OR ANY LOSSES THAT MAY BE CAUSED BY OR RESULT FROM THE ACTIONS OR OMMISSIONS OF APPLE, YOUR MOBILE DEVICE MANUFACTURER, YOUR TELECOMMUNICATIONS PROVIDER(S) OR ANY OTHER THIRD PARTY INCLUDING, WITHOUT LIMITATION, INVOLVING OR IN ANY WAY RELATING TO THE AVAILABILITY, USE OR OPERATION OF THE LICENSED SOFTWARE, THE VERISCAN™ SYSTEM, OR THE APPLE IN-APP PURCHASE API.  ALTHOUGH WE WILL TRY TO ASSIST YOU IN RESOLVING ANY SUCH PROBLEMS, YOU UNDERSTAND AND AGREE THAT ANY SUCH ERRORS, DELAYS OR OTHER PROBLEMS WITH SUCH THIRD PARTIES ARE THE SOLE RESPONSIBLITY OF APPLE AND SUCH THIRD PARTIES.   

NEITHER YOU NOR WE MAY INSTITUTE ANY CLAIM IN ANY FORM INVOLVING, RELATED TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSIONS MAY NOT APPLY.

6.2 Your Indemnification of Us. You shall defend, indemnify and hold harmless us and our affiliates, and their respective officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all Loss including, but not limited to, reasonable attorneys' fees and expenses, in whole or in any part involving, arising out of, or relating or in any way attributable to: (i) any breach or violation of this Agreement by you or someone using your computer or account; (ii) Your failure to provide accurate, complete and current personally identifiable information requested or required by us or Apple; (iii) Your access or use of the Licenced Software, the VERISCAN™ SYSTEM, the VERISCAN™ SYSTEM or the Apple In-App Purchase API; (iv) access or use of the Licensed Software or the Apple In-App Purchase API under any password that may be issued to you or the use of the Licensed Software, the VERISCAN™ SYSTEM,  or the Apple In-App Purchase API by someone using your account; (v) Your transmissions and submissions and/or (vi) any Loss to the extent caused by your acts or omissions. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully and timely cooperate with us in asserting any available defence or counterclaim. You acknowledge and agree to pay our reasonable attorneys’ fees and expenses incurred in connection with any and all Claims brought against you by us under these terms and conditions and any other terms and conditions   , including, without limitation, Claims arising from your failure to indemnify us pursuant to these terms and conditions.

 

7. SUCCESSORS AND ASSIGNS
 

7.1 Successors and Assigns. You may not assign your rights and duties under this Agreement to any person or entity at any time. Any attempt to do so shall be void and of no force and effect. This Agreement will endure to the benefit of and will be binding on us and our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, we will have the right to transfer and assign our rights and obligations hereunder to any third party, upon written notice to you.

 

8. CHANGES; UPGRADES


8.1 Changes.  We retain the right in our sole and absolute discretion at any time and from time to time and without notice to change, alter or discontinue entirely, in whole or in or any part, the Licensed Software and the VERISCAN™ SYSTEM including, without limitation, (a) hardware, software, Applications or any of the operating or other specifications, which changes or alterations may require you to purchase or otherwise acquire additional or alternative Equipment, Mobile Devises and Applications which shall be at your sole cost and expense, and (b) the terms, conditions and policies for access and utilization of the Licensed Software and the VERISCAN™ SYSTEM including, without limitation, our policies and practices as well as our specific decisions regarding individual customers, as to the initial or continuing availability of free scans for existing or new customers of our products and other products that we may from time to time authorize to be scanned.
8.2 Upgrades; Support; Defects. Other than our obligation under Section 2.5(b) above, we shall have no obligation whatsoever to provide updates or support services, or to provide upgrades, enhancements or remedies for errors, defects or deficiencies.

 

9. CONFIDENTIALITY


9.1 Confidentiality. You agree to retain in confidence and not disclose to any third parties any confidential and proprietary information ab out the Licensed Software and the VERISCAN™ SYSTEM that may be inadvertently disclosed to You. 

 

10. TERM AND TERMINATION


10.1 Term. The term of this Agreement will commence on the date of your agreement to these terms and conditions and shall continue until terminated or expired in accordance with this Agreement.
10.2 Termination. Notwithstanding Section 10.1above, you agree that each of the terms and conditions of the Agreements are material and that your failure to strictly comply with the terms and conditions of the Agreements shall constitute sufficient cause for us to terminate this Agreement immediately which we may exercise in our sole and absolute discretion. You may terminate this Agreement at any time by discontinuing your use of the Licensed Software and the VERISCAN™ SYSTEM and the Application, or uninstalling the Application. Such termination shall not entitle you to a refund or reimbursement of any portion of the scan subscription you paid. 
10.3 Our Termination Without Cause. Notwithstanding Sections 10.1 and 10.2, we have the right to terminate this Agreement at any time with or without cause and without notice. If our termination is without cause, we shall repay to you through the Apple In-App Purchase API a pro rata portion of any scan subscriptions you paid to us for the period of the term of this Agreement subsequent to termination. Free scans granted are not reimbursable under any circumstances.
10.4 Your Termination. If you wish to cancel the subscription, the procedure, terms and conditions, and the description of any pro-ration return of unused subscription, are described in, and effected through, the In-App Purchase API. 

 

11. GENERAL


11.1 Captions; Drafter. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it. This Agreement shall not be construed against us on the basis that we are the drafter of this Agreement.
11.2 Entire Agreement; Waiver. This Agreement represents the entire agreement between you and us regarding the Licensed Software and the VERISCAN™ SYSTEM. This Agreement governs your use of the Licensed Software and the VERISCAN™ SYSTEM, and supersedes all other previous agreements, understanding and/or representations regarding the same. Any waiver, either expressed or implied, by either Party of any default by the other in the observance and performance of any of the conditions and/or covenants of duties set forth herein shall not constitute or be construed as a waiver of any subsequent or other default.
11.3 Equitable Relief. You agree that any breach of this Agreement by you would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, we will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
11.4 Force Majeure. Notwithstanding anything herein to the contrary, we shall not be liable to you for any delay or failure in the performance of our obligations hereunder, or impact on access and use of the Licensed Software or the VERISCAN™ SYSTEM, if and to the extent such delay or failure is caused, directly or indirectly, and in whole or in any part, by fire, flood, explosion, war, terrorism, earthquake, elements of nature or acts of God or a public enemy; riots, civil disorder, rebellions or revolutions in any country; embargoes; strikes, lockouts or labor difficulties; any failure in electrical or other mechanical equipment; the quality, unavailability or incompatibility of Equipment; civil or military authority; inability to secure materials or transportation facilities; acts or omissions of telecommunications, internet or other carriers, vendors or suppliers; inability to obtain any relevant information or data, access links or other communications facilities; any government requirements; or any acts or failures to act of any governmental authority; or any other cause or reason, whether or not similar to the foregoing, which is or may be beyond our reasonable control.
11.5 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, a partnership or joint venture. Except as expressly provided in this Agreement, neither we nor you will have any power or authority to act in the name or on behalf of the other Party, or to bind the other Party to any legal agreement or as to any other matter.
11.6 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court of competent jurisdiction to be illegal, invalid or unenforceable, in whole or in part, this Agreement will be deemed to have effect as if such provision were severed from this Agreement and the remaining provisions of this Agreement shall not in any way be affected thereby and shall nevertheless be binding between the Parties. Any such illegal, invalid or unenforceable provision hereof shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
11.7 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
11.8 Exclusive Dispute Resolution and Governing Law: Consent to Jurisdiction. You irrevocably agree that the courts of the canton of Geneva Switzerland shall have exclusive jurisdiction to resolve any dispute or claim of whatever nature arising out of or relating to this Agreement, and that the laws of Switzerland shall govern such dispute or claim, without regard to its conflict of laws’ provisions or the United Nations Convention for the International Sale of Goods. You consent to the personal jurisdiction of such courts and waive any objection to such personal jurisdiction based on inconvenient forum or any other basis. However, we retain the right to bring Claims in any jurisdiction where we determine that a breach of these Agreements is taking place or originating. You are responsible for compliance with any laws of the country from which you access the Licensed Software or the VERISCAN™ SYSTEM.
11.9 Amendments of this Agreement; Survival. Notwithstanding anything in this Agreement to the contrary, we reserve the right to update, amend and/or change this Agreement at any time and from time to time in our sole discretion and without notice. Updates and amendments to this Agreement will take effect immediately upon us posting on our website the updates and amendments to this Agreement. You are encouraged to revisit our website from time to time in order to review any updates or amendments to this Agreement that have been made. The date on which this Agreement was last updated will be noted immediately above this Agreement. Your continued access and use of the Licensed Software following the posting of any such changes shall automatically be deemed your acceptance of all changes.

All software license restrictions, disclaimers and limitations of liability set forth in this Agreement, as well as all covenants, agreements, representations and warranties made by you in this Agreement, as this Agreement may be amended by us, from time to time, shall survive the termination of this Agreement.

If you have questions, comments, concerns or feedback regarding this Agreement or the Licensed Software, the VERISCAN™ SYSTEM, or the Applications, please contact us at info.mypamp@pamp.com.

 


PAMP DATA PRIVACY POLICY 

Our Data Privacy Policy outlines how we treat any private information you provide about yourself to us. It covers the data that we collect, what use is made of that information and your data privacy rights that we observe in offering the Licensed Software and the VERISCAN™ SYSTEM. In using the Licensed Software or the VERISCAN™ SYSTEM, you consent to the terms of the version of this Data Privacy Policy current at the time of use.

1. Compliance: We, PAMP S.A, make all reasonable efforts to comply with the applicable data privacy laws of Switzerland.

2. Data Collection: We may collect personal information from our users on registration by users for a particular service. Your personal data will normally be used only to supply you with one of the services available from PAMP.

3. Data Privacy: We respect the privacy of our users and will not sell or make available in any way personal information to any third party, except in exceptional circumstances where required by a legal or other regulatory authority to disclose the information or when you the user require us to make available your personal information to you.

4. Data Security: We endeavour to take reasonable steps to protect your data against unauthorised access by third parties, (including making use of encryption technology), but cannot guarantee or assure the security of any data you disclose online. You accept the Internet is not entirely secure and you acknowledge and agree that, to the fullest extent permitted by law, we shall not be held responsible for any unauthorised use, distribution, damage or destruction of personal data.

5. Links: At present, we do not intend to make available any personal information provided by users to any third party or partner company. However, our site may link to other websites and we are not responsible for their data policies or procedures or their content.

6. Exclusive Dispute Resolution and Governing Law; Consent to Jurisdiction: This policy and consent forms part of our VERISCAN™ System You irrevocably agree that the courts of the Canton of Geneva, Switzerland shall have exclusive jurisdiction to resolve any dispute or claim of whatever nature arising out of or relating to this policy and consent or otherwise to the use of your personal data, and that the laws of Switzerland shall govern such dispute or claim without regard to its conflict of laws provisions or the United Nations Convention for the International Sale of Goods. You consent to the personal jurisdiction of such courts and waive any objection to such personal jurisdiction based on inconvenient forum or any other basis.  However, we retain the right to bring Claims in any jurisdiction where we believe that infringement of our intellectual property rights or breach of this policy is taking place or originating. You are responsible for compliance with any laws of the country from which you are accessing our website, or our products or our services. We operate this website from Switzerland and make no representation or warranty that the information contained herein is appropriate, available for use or complies with any law or regulation applicable in locations outside Switzerland.

7. Third Parties: In order to access and utilize the VERISCAN™ SYSTEM on a Mobile Device through an Application Store and Applications including, without limitation, the App Store and the use of the Apple In-App Purchase API to pay for scans of our products and other products that we may from authorize from time to time to be scanned, certain personally identifiable information, financial information and other information and data of yours are or may be required to be submitted.  You should carefully and periodically review and consider the privacy polices of all third parties who have or may gain access to any such information and data. We bear no responsibility or liability for the acts and omissions of such third parties or other persons with respect to their access and use of such information and data.