In this article
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE.
1.Grant of Licence
(a) When downloading/installing and/or using the Software as hereinafter defined, banana.ch SA, Lugano, Switzerland, (the "Licensor") grants you (the "Licensee") a non-exclusive, non-transferable Licence for the accompanying software product, Banana Accounting, including (if applicable) electronic documentation and associated material (the "Software"). This Licence governs also any update or new version or release of the Software. This Licence applies also if you have downloaded the Software form websites or e-shops other than Licensor’s website. Unless it was specified at the time of delivery or download or in the relevant pricing plan, the Licence permits you to use the Software on a single computer system for single use only upon the terms and subject to the conditions contained herein. The Software may NOT be transferred electronically from one computer to another nor used over a network, unless this was explicitly authorized by the Licensor at the time of delivery or download. Please contact the Licensor to purchase additional or special licences if you intend the Software to be used by multiple users or systems and this was not explicitly authorized at the time of delivery or download.
(b) The Licensee acknowledges that if so specified at the time of delivery or downloading of the Software, the use of the Software may be conditional upon the use of a security code provided by the Licensor.
(c) To the extent that the Software includes or interfaces with third parties’ software (including adds-ons or extension programs), the respective licensing provisions issued by such third parties shall apply and the Licensee undertakes to comply with them.
2.Licence Fee
(a) Unless otherwise specified by the Licensor, the Software is NOT free or shareware. The Licence Fee is specified by the Licensor and to be paid by you at the time of delivery or downloading of the Software or its first use or the start of the subscription.
(b) The pricing plans indicate which software features, extensions, documentation or services are made available and can be used and for what period (subscription). The pricing plan may vary depending on the region, usage type, recipient of use, or other elements specified in the plan description. The Licensor reserves the right to change plan prices, content and duration and delete a plan when it deems necessary.
(c) If a pricing plan has been established for a certain period (subscription), the right to use the Software or features and services provided by the plan will expire on the last day of the specified period. The fee is due at the beginning of the subscription. Unless otherwise stated in the pricing plan, you may cancel your subscription with a notice to be received 30 days before the expiry; otherwise the subscription will automatically be renewed for an additional same period, under the same conditions. Early termination or non-use of the Software does not entitle you to a refund of the licence fee already paid.
3.Obligations of Licensee
Upon accepting this Licence you undertake:
(a) not to copy the Software (other than for normal use of the Software in accordance with the terms of this Licence) nor (subject to mandatory applicable law rights) to disassemble, decompile or reverse engineer the Software;
(b) not to translate, modify, lease, rent, loan, redistribute, sublease, sublicense or create derivative works from the Software;
(c) to ensure that your employees, agents and other parties who will use the Software are notified of this Licence and the terms hereof prior to such employee, agent or party using the same;
(d) not to display or make available the Software on a public bulletin board, ftp site, worldwide web site, chat room or by any other unauthorised means;
(e) not to transfer, communicate or make available any licence or security code that was given by the Licensor to install or use the Software;
(f) within 14 days after the date of termination or discontinuance of this Licence for whatever reason, to destroy the Software and all upgrades or copies.
4.Transfer of the Software
Notwithstanding Clause 3 above, the Software may only be transferred to another party if the original and all copies (including back-ups) of the Software, documentation and this Licence are transferred permanently at no charge to the proposed new licensee. The new licensee will be deemed to have accepted this Licence when downloading/installing and/or using the Software. Upon such transfer you may retain NO copies of the Software or documentation.
5.Warranties
(a) The Licensor warrants that the Software will substantially operate in accordance with the user instructions contained in the materials delivered with the Software.
(b) You acknowledge that software in general is not error-free and agree that the existence of such errors shall not constitute a breach of this Licence. The Licensor may create new versions of the Software ("upgrades") which may correct such errors and although the Licensor has no obligation to notify existing licensees of such upgrades, the same will be made available at the same internet site as you downloaded/ordered the Software accompanying this Licence, at such cost as shall be indicated.
(c) In the event that you discover a material error in the Software which substantially affects the use of the same and notify the Licensor of the error within 90 days from the date of this Licence, the Licensor shall at its sole option either refund the licence fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply.
(d) Warranty is excluded in the case non-compliance has been caused by any modification, variation or addition to the Software not performed by the Licensor or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.
(e) In the event of Software licensed for free, the Software is provided “as is” and any and all warranties, whether implied or express, are disclaimed to the maximum extent allowed under the applicable law.
(f) Unless otherwise provided for in this Clause 5, to the extent permitted by the applicable law, the Licensor disclaims all other warranties with respect to the Software, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
(g) Without limiting the generality of the foregoing, Licensor disclaims any warranty in relation to:
– third parties’ software, components and contents which may operate with the Software;
– adds-on or extension programs, including apps that are designed and made available by third parties or communities to operate with the Software and their interoperability with the Software and any new version thereof, even if they are made available on the Licensor website or are delivered by the Licensor together with or through the Software;
– additional or ancillary materials such as templates, forms and sheets incorporating texts, data, formula or programs and related documentation, whether designed by the Licensor or third parties, and their non-compliance with local legislation, requirements or standards and/or their accuracy and that they are up-to-date;
– third parties’ websites and their content with which the Software or Licensor’s website can connect;
– change of any parameter in law, regulation, tax or accounting rules or standards that may not be reflected in the Software;
– failure of internet connection to the extent that such connection is necessary or useful for the user to operate the Software or any additional feature connected thereto;
– failure of third parties to provide from their websites specific or up–to-date contents or services that are necessary or useful for the use of the Software.
(h) You acknowledge and agree that on certain occasions the Software will connect to Licensor’s website to transfer or download information (such as updates, security codes, versions, languages etc.), information relating to the subscription, the subscriber and the authorized users. You shall be responsible to ensure the internet connection at the relevant time and Licensor disclaims any warranty as to the continuity of internet connection and any corruption or interception of information during the transfer or download.
6.Limitation of liability
(a) Any liability (whether in contract, tort or other legal basis) of the Licensor for the breach of any obligation hereunder (including breach of warranty) or in connection with the delivery to, or downloading or use by, you of the Software is excluded, unless the Licensor has acted with gross negligence or in wilful intent.
(b) Notwithstanding the generality of Clause 6(a) above and to the maximum extent allowed under the applicable law, the Licensor expressly excludes liability for consequential loss, damage of, or corruption to, other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.
7.Intellectual Property Rights
All copyright, trade marks and other intellectual property rights subsisting in or used in connection with the Software (including but not limited to all images, animations, audio and other identifiable material relating to the Software) are and remain the sole property of the Licensor.
8.Termination
You may terminate this Licence at any time by destroying the Software, licence or security code, documentation and all copies. No Licence Fee is refundable. The Licensor may terminate this Licence at any time if you are found in breach of any of these terms. Further the Licensor may terminate this Licence forthwith if you do not timely pay the Licence Fee. Further if the installation or use of the Software is conditional upon the activation of a security code which has been provided by the Licensor specifying that this had only a limited period of validity, the Licence shall be deemed automatically terminated upon expiry of such period. If you are notified of such termination or upon expiry of the validity period of the security code, you must comply with the provisions of Clause 3(f) above.
9.Processing of personal data
Personal data relating to the Licensee and/or authorized users collected at the time of purchase, installation or use of the Software, and in particular the identity, email address, subscription and pricing plan, license fee payment information, and product usage information, is processed by the Licenser for the execution of the agreement. Data collected in this way or collected through the Licensor's website is processed in accordance with the Privacy Policy published on the Licensor's website at https://www.banana.ch/en/node/9245.
10.Miscellaneous
(a) Assignment: Unless otherwise expressly provided for herein, the Licensee shall not assign or otherwise transfer all or part of the Software or this Licence without the prior written consent of the Licensor;
(b) Waiver: Failure or neglect by the Licensor to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Licensor's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice the Licensor's rights to take subsequent action;
(c) Headings: The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Licence;
(d) Severability: In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law and the invalid, unlawful or unenforceable provision shall be replaced by a valid, lawful and enforceable provision that, from its commercial purpose, it comes closed to the invalid, unlawful or unenforceable provision.
11.Governing Law and Jurisdiction
(a) This Licence shall be subject to and governed by Swiss Law;
(b) The Courts of Lugano, Switzerland, shall have exclusive jurisdiction on any dispute, controversy or claim arising out of or in relation to this Licence, including the validity, invalidity, breach or termination thereof. Notwithstanding the preceding sentence, the Licensor shall be entitled to bring action against the Licensee in the courts at the latter’s domicile.
Last updated: September 21, 2020.