Basemark GPU Free - END USER LICENCE AGREEMENT


THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN BASEMARK OY, A COMPANY WITH REGISTERED ADDRESS IN KORKEAVUORENKATU 34, 00130 HELSINKI, FINLAND ("BASEMARK") AND YOU ("LICENSEE").

BASEMARK OWNS ALL INTELLECTUAL PROPERTY RIGHTS IN Basemark GPU ("APPLICATION") AND PERMITS YOU TO USE THE APPLICATION ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING THE APPLICATION, INSTALLING, STARTING OR OTHERWISE USING THE SOFTWARE. ANY OF THE ABOVE ACTIONS INDICATE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND TO THOSE TERMS AND CONDITIONS.

SHOULD YOU NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL, START OR OTHERWISE USE THE APPLICATION. PERMANENTLY DELETE ALL POSSIBLE COPIES AND INSTALLATIONS OF THE APPLICATION IN ITS ENTIRETY FROM ALL OF YOUR DEVICES AND FILE SYSTEMS.

THIS LICENSE IS IN EFFECT AS OF JUNE 1, 2018 AND MAY BE UPDATED AT ANY TIME BY BASEMARK.

1.	LICENSE

Subject to the terms and conditions of this Agreement, Basemark hereby grants Licensee a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use one copy of this Application in object or executable form subject to the terms of the Agreement. Any other use of the Application in deviation of this Agreement is expressly forbidden. 

These rights and License are temporary and valid only for as long as this Agreement is in force and Licensee operates under the terms and conditions of this Agreement.

Licensee agrees that Licensee is solely responsible (and that Basemark has no responsibility to Licensee or to any third party) for the use of the Application, any breach of Licensee’s obligations under the Agreement, and for the consequences (including but not limiting to any loss or damage which Basemark may suffer) of any such breach.

Permitted use is limited to a non-commercial user for benchmarking of a device and receiving a test result from the use of the Application. 

Commercial use of any kind under the present End User License Agreement is prohibited. Commercial use includes, but is not limited to, benchmarking of one or more devices or components by a commercial entity. Additionally, benchmarking by any entity for any purpose related to the development or marketing of any device or component, regardless if that includes the device or component being benchmarked,  is prohibited. For any commercial use of the Application, Basemark reserves the right to charge the user a fair and reasonable rate in accordance with its standard commercial agreements relating to the Application. By using the Application in a commercial manner the user hereby agrees to accepting such charges.

2.	WARRANTS

Licensee warrants that it shall not develop software or mechanism to interfere with the performance measurement function of the Application.

3.	INTELLECTUAL PROPERTY RIGHTS

Basemark and its licensors solely retain all right, title and interest including but not limited to all intellectual property rights (including but not limited to patents, copyrights, trademarks, trade secrets, know how, registrations, applications, and rights to apply therefore, whether issued or pending and whether registerable or not as well as information and data gathered during use of the Application which is submitted to Basemark [e.g. to Power Board] ) in and to the Application. All rights, titles and interest shall at all times remain solely the property of Basemark. 
Licensee understands, that Basemark, Browsemark, OMSMark, VRBench, VRTrek, VRScore and Rocksolid are included in the group of trademarks or registered trademarks solely owned and controlled by Basemark and are protected by applicable trademark law, and may not be used to any extent without the express prior written consent of Basemark in each instance. 

This Agreement shall not be deemed to result in the sale, transfer or any other conveyance of patents, trademarks, copyrights, individual and aggregated benchmarking data or any other intellectual property right of whatsoever nature held or used by Basemark to licensee. The Application is protected by at least copyright laws, international treaty provisions and other applicable national laws. Aspects of the Application may be protected by one or more US or foreign Letters Patent or covered in one or more US or foreign applications for patent.

Licensee agrees that by default, all benchmarking data generated through use of the Application will be sent to Basemark and will be property of Basemark.

Licensee agrees to not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source or binary code from the Application or content that may be presented or accessed through the Application for any purpose, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Application, (iii) use the Application to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, (iv) to build an automated test system or to collect information with the help of Application in any automated way, or (v) remove, obscure, or alter Basemark's or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Application.

4.	TERMINATION

This Agreement will continue to apply until terminated by either Licensee or Basemark as set forth below. Licensee may terminate this Agreement at any time by permanently deleting the Application from all devices to which it is installed to. Licensee’s rights terminate automatically and immediately without notice from Basemark if Licensee fails to comply with any provision of this Agreement. In such event, Licensee must immediately delete the Application and any data derived therefrom permanently from all devices to which it is installed to.

5.	INDEMNITY

To the maximum extent permitted by law, Licensee agrees to defend, indemnify and hold harmless Basemark, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of or accruing from Licensee’s use of the Application, including Licensee’s downloading, installation, or use of the Application, or Licensee’s violation of this Agreement.

6.	DISCLAIMER OF WARRANTIES

THE APPLICATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BASEMARK AND ITS AUTHORIZED DISTRIBUTORS ASSUME NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE APPLICATION. LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO MOBILE DEVICE, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING, INSTALLATION, USE OF THE APPLICATION OR OTHERWISE IN CONNECTION WITH THE APPLICATION.

LICENSEE ACKNOWLEDGES THAT BASEMARK HAS NO CONTROL OVER LICENSEE’S USE OR EXPLOITATION OF THE APPLICATION. LICENSEE THEREFORE AGREES TO INDEMNIFY AND HOLD BASEMARK HARMLESS AGAINST ANY COSTS, CLAIMS, DEMANDS, EXPENSES AND LIABILITIES OF WHATSOEVER NATURE BY ANY THIRD PARTY ARISING FROM SUCH USE OR EXPLOITATION.

IN NO EVENT SHALL BASEMARK, OR ITS SUBSIDIARIES, AFFILIATES, LICENSORS OR AUTHORIZED DISTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE APPLICATION, EVEN IF BASEMARK OR ITS AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BASEMARK AND ITS AUTHORIZED DISTRIBUTORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE APPLICATION OR THE MEDIA, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE APPLICATION, THE MEDIA, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE, MEDIA, DATA OR EQUIPMENT OR CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.

LOCAL LEGISLATION IN SOME COUNTRIES DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THE ABOVE LIMITATIONS OR EXCLUSIONS MAY APPLY TO LICENSEE ONLY PARTLY OR NOT AT ALL.

7.	PRIVACY

Basemark’s general Privacy Policy applies to this Application and Agreement. Use of this Application is deemed consent to the terms of Basemark’s general Privacy Policy. A copy of the Privacy Policy can be found at https://www.basemark.com/privacy-policy.
a.	GDPR. Licensee herein certifies that they will adhere to all of the requirements of the EU’s General Data Protection Regulation (GDPR) EU 2016/679 with regards to being a Controller of any data generated by the Application under the GDPR. Licensee herein indemnifies Basemark for any breaches of any part of the GDPR by Licensee with regards to personal data obtained from use of the Application.


8.	MISCELLANEOUS

This Agreement constitutes the entire agreement between Licensee and Basemark relating to the Application and governs the use of the Application, and completely replaces any prior or contemporaneous agreements between the Licensee and Basemark regarding the Application.

The failure of Basemark to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision, which will still be available to Basemark.

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable. 

The rights granted in this Agreement may not be assigned or transferred by the Licensee without the prior written approval of Basemark. The Licensee is not permitted to delegate its responsibilities or obligations under this Agreement without the prior written approval of Basemark.

This Agreement and the Licensee’s relationship with Basemark under this Agreement will be governed by the laws of Finland without regard to its conflict of laws provisions. The Licensee and Basemark agree to submit to the exclusive jurisdiction of the courts located within the country of Finland to resolve any legal matter arising from this Agreement. Notwithstanding this, Licensee agrees that Basemark will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. However, if the Licensee is considered to have a status of a consumer, Basemark might and is fully capable to choose another jurisdiction and forum such as forum of domicile of the Licensee. In such a case, the applicable law of the proceedings will be the national trade law or, when obligatory, the consumer legislation of the said forum. This might be especially applicable to those consumers residing in the European Union. 

Licensee acknowledges that Licensee has the authority to execute this Agreement and licensee further acknowledges and agrees that this Agreement constitutes a valid and legally binding obligation on the part of the Licensee.