End User License Agreement
1. Acceptance of the EULA
The download, installation, use or copy of Nuclear Instruments S.r.l. software (hereinafter also the “NI Software”), or any work based on the NI Software, implies the acceptance of the terms and conditions set out in this EULA, that shall immediately enter into force.
The NI Software has been copyrighted by Nuclear Instruments S.r.l. with registered office in Via Lecco, 16 – Lambrugo (CO) – ITALY (hereinafter also “NI”).
The Licensor hereby authorizes the end user (hereinafter also the “End User”) to use the NI Software within the context of the following licensing conditions, whereas this EULA represents a binding agreement between the End User and NI.
The term “NI Software” is used to identify the program received by the End User from NI and/or NI’s independent distributors, downloaded from NI’s official website or anyhow provided to the End User by NI. Such term does not include any other program that is covered by a separate license and distributed as a different entity.
The unauthorized reproduction and/or the unauthorized sale of the NI Software or of parts thereof, is liable to prosecution under the applicable criminal or civil law and will result in severe penalties and claims for damages.
Subject to the End User’s compliance with this EULA, NI hereby grants the End User with a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable, worldwide (except as limited below) license to download, install, access, and use the NI Software.
3. Proprietary rights
The NI Software and any accompanying documentation, local computer files installed or utilized by the installer application are in the property of NI and are protected by Italian and international laws.
This EULA defines the legal use of the NI Software, together with all updates, revisions, substitutions, and any copies of the NI Software made by or for the End User.
The End User further acknowledges and agrees that NI owns and shall continue to own all rights, titles, and interests in and to the NI Software, including associated intellectual property rights under copyright, trade secrets, patents, or trademark laws.
This EULA does not grant the End User any ownership interest in or to the NI Software, but only a limited and strictly personal right of use that is revocable in accordance with the terms of this EULA.
All rights not expressly granted to the End User are reserved to NI or to their respective owners.
The structure, organization, and code of the NI Software are NI’s valuable trade secrets and constitutes NI’s confidential information, that cannot be disclosed by the End User without NI’s prior written consent.
4. License Conditions
With regards to the NI Software and/or to any of its parts, the End User undertakes not to:
a) misrepresent the origin of the NI Software and/or alter the NI Software, user license or installer in any way;
b) use it commercially and/or for any promotional purposes;
c) use it on more than one device at a time;
d) provide any third party with the End User’s credential and password to access the NI Software and/or any other mean (e.g. token) that enables the access and/or use of the NI Software;
e) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify the NI Software, any updates, or any part thereof in order to modify the NI Software or any portion thereof;
f) sell, lease, loan, distribute, transfer, or sub-license the NI Software or access thereto or derive income from the use or provision of the NI Software, whether for direct commercial or monetary gain or otherwise, without NI’s prior, express and written permission;
g) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it;
h) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights;
i) use the NI Software in any unlawful manner and/or export, or re-export it in violation of any applicable law or regulations;
j) incorporate the NI Software into any electronic device manufactured by or for the End User except into those that you the End User have has received from NI and/or its partners or authorized by the latter;
k) use the NI Software to operate nuclear facilities, life support, or other critical application where human life or property may be at stake. The End User acknowledges that the NI Software is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which NI is not responsible;
l) disable or circumvent, or attempt to disable or circumvent, any technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any NI Software;
m) will not use the NI Software with any software or other materials that are subject to licenses or restrictions (e.g., open-source software licenses) that, when combined with the NI Software, would require us to disclose, license, distribute or otherwise make all or any part of such NI Software available to anyone, or grant others any rights to modify the Software;
n) incorporate any portion of the Software into its own programs or compile any portion of the Software in combination with its own programs;
o) claim any sponsorship by, endorsement by, or affiliation with NI;
p) except for the reproductions expressly authorized in this EULA, to create other reproductions of the NI Software or of the documentation, either wholly or in part, on the same or on other disks/carrier media; this also includes the output of the programmed code to a printer;
q) transfer the NI Software from one computer or modules to another computer or modules or recording device via a network or other data transfer channel, insofar as the receiving device is not a computer or other recording device of the End User, which is referred to in, and understood to be within, the framework of this EULA;
r) create works derived from the NI Software or documentation, or to reproduce, translate, change, or create works derived from the documentation, insofar as this is not necessary within the context of contractual use;
s) transfer the NI Software to third parties or provide access to the NI Software in any other form;
t) remove copyright endorsements, serial numbers or other features which serve to identify the program, unless NI has provided prior written authorization.
5. Admitted reproduction of the NI Software
The End User may reproduce the NI Software only if such reproduction is strictly necessary for the use of the NI Software.
Necessary reproductions include the installation of the NI Software from the original system disk or from the downloaded installation archive on the mass memory of the hardware, as well as the loading of the NI Software into the main memory during NI Software operation.
Moreover, the End User may reproduce the NI Software for backup purposes. However, only one backup copy of the original system disk or the downloaded installation archive may be created and/or stored. Said copy must be marked as a backup.
Should a rotational backup of a system’s entire data set, including the NI Software programmers, be essential for a fast reactivation of the system following a complete breakdown, the End User may create backup copies in the required quantities. The pertinent system disks shall be marked accordingly. These backup copies may be used for archive purposes in connection with data backup only.
The End User will not modify the user guides, operating manuals and release notes made available by NI. Such documentation may:
a) only be used to support the End User’s use of the Software;
b) not be republished or redistributed to any unauthorized third party;
c) not be distributed or used to conduct training for which the End User, or any other party, receives a fee.
The End User shall take the necessary steps to prohibit unauthorized access to the NI Software and its documentation by third parties.
The original data media, as well as all backup copies, shall be stored in a secure place, safe from access by unauthorized third parties.
6. Disclaimer of Warranties by NI
To the maximum extent permitted by applicable laws and regulations, the NI Software is provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind.
NI, its licensors, and its and their affiliates disclaim all warranties, conditions, and representations (express, implied, oral, and written) with respect to the NI Software including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not NI knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing.
NI does not warrant that the NI Software will operate uninterrupted or be error free or that defects are correctable or will be corrected.
Any service obtained using the NI Software is done at the End User’s own discretion and risk, and the End User will be solely responsible for any damage to his/her computer system or loss of data that results from the download and/or use of any such material or service.
Without limiting the generality of the foregoing, NI, its licensors, and its and their affiliates make no warranty that:
a) the NI Software will operate properly;
b) that the NI Software will meet the End User’s system/technical requirements;
c) that the operation of the NI Software will be uninterrupted, bug free, or error free in any or all circumstances;
d) that any defects in the NI Software can or will be corrected by NI.
The terms set forth herein will apply to the maximum extent permitted by applicable laws.
7. Limitation of Liability
To the extent not prohibited by the applicable laws, in no event shall NI be liable for personal injury or any incidental, special, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption, or any other commercial damages or losses, arising out of or related to the End User’s use of or inability to use the NI Software, however caused, regardless of the theory of liability (contract, tort, or otherwise) and even if NI has been advised of the possibility of such damages.
In no event shall NI’s total liability to the End User for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the total amount of the fees paid for the NI Software license.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the foregoing limitations of liability shall apply only to the full extent permitted by the applicable law.
The End User is solely responsible for compliance with agreements the End User has executed with third parties.
The End User agrees to indemnify and hold NI harmless from any claim or demand, including reasonable legal fees, made by any third party in connection with or arising out of the End User’s use of the NI Software, the End User’s violation of any terms or conditions of the NI Software license and/or violation of applicable laws, or the violation of any rights of another person or entity.
9. NI Software Updates
NI undertakes to provide all the services and technical maintenance services, together with all the relevant additional services, if any, as indicated in the applicable CAEN and/or NI terms and conditions (“Terms & Conditions”).
10. Consent to the Use of Data
The End User agrees that NI may remotely extract and collect, at any time and without any obligation to notice the End User, technical and performance data concerning the NI Software’s usage by the End User and its performance, and all the necessary related information.
Such technical and performance data will be collected, stored and used by NI and/or NI’s technical partners (such as CAEN S.p.A.) only for the purpose of monitoring and improving the performance of the NI Software, to prevent and/or fix technical failures and/or bugs as well as to facilitate the performance of any technical support activity.
In addition to the above, NI and/or its technical partners (such as CAEN S.p.A.) might collect personal data of the End User for the sole purposes of the management of the license and the performance of technical additional services.
The personal data collected by NI and/or its technical partners (such as CAEN S.p.A.) might consist in the following:
a) End User’s name and last name;
b) End User’s e-mail;
c) End User’s “MyCAEN” chosen username;
d) the identifier number of the device from which the End User is accessing and downloading the NI Software (the “Machine ID”);
e) the IP address of the End User’s internet connection.
NI and/or its technical partners shall process the personal data collected in accordance with the applicable data protection laws, as specified in NI’s and/or its technical partners’ privacy notices provided to the End User during the registration process and/or immediately after such process.
11. Audit Rights and Non-compliance
During the term of this EULA, the End User will maintain electronic and other records sufficient for NI to confirm that the End User has complied with the terms and conditions of this EULA.
NI may audit, and/or have third party to audit, the End User’s records and computer systems (including servers, databases, and all other applicable software and hardware) to ensure that the End User has fully complied with this EULA.
The End User shall cooperate with NI’s audit team and promptly and accurately respond to database queries, location information, system reports, and other reports requested by NI.
If the End User is not in compliance with the NI Software licenses, the End User will be deemed to have acquired additional NI Software licenses at NI’s then-current list price to bring the End User into compliance, and it shall pay directly to NI the relevant due royalties.
12. Export Control
This EULA involves software, products and/or technical data that may be controlled under laws and regulations that might forbid and/or regulate the export of such software, products and/or technical data (“Export Laws”).
The End User shall comply with all Export Laws to assure that the NI Software is not exported, directly or indirectly, in contravention of the applicable Export Laws.
13. Term and Termination
The End User may terminate the NI Software license by discontinuing use of all or any of the NI Software and by destroying all copies of the applicable NI Software.
The license terminates automatically if the End User violates any terms of the EULA, if NI sends a written notice of termination to the End User and in all the other cases set forth in the Terms & Conditions.
After a termination, the End User shall immediately:
a) cease any use of the NI Software;
b) fully delete all NI Software, in particular the original files, any backup copies and any pertinent NI Software files installed on the End User’s devices;
c) delete/destroy/return any documentation related to the NI Software.
NI has the right to demand a sworn statement from the End User regarding the fulfillment of its obligations under the present paragraph.
14. Unilateral amendments to the EULA
NI has the right, at any time, when necessary, to unilaterally amend and modify the EULA without the obligation to priorly inform the End User of such changes.
15. Applicable Law
This NI Software License and the relationship between the End User and the Licensor is governed by the laws of Italy and shall be interpreted accordingly.
The United Nations Convention on the International Sale of Goods does not apply to the NI Software License.
Any dispute arising out of or in connection with this EULA shall be referred to and finally resolved by a sole Arbitration under the provisions of the CAM Milan Chamber of Commerce Arbitration Rules. The Arbitrator shall be nominated in accordance to the said Arbitration Rules.
The place of Arbitration shall be Milan, Italy and the language shall be English.
This EULA constitutes the entire understanding between the parties regarding the use of the NI Software, superseding all prior agreements between the End User and NI in the event of any conflict between the EULA and the Terms & Conditions of the NI Software, the Terms & Conditions will prevail.