LOFELT END USER LICENSE AGREEMENT
Last update: September 23th, 2020
This end user license agreement (hereinafter referred to as the “EULA”) constitutes a legal and binding agreement between Lofelt GmbH, with registered office at Oppelner Str. 27, 10997 Berlin, Germany, registered at Amtsgericht Berlin-Charlottenburg, HRB 159157 B, including its subsidiaries, affiliates and contractors acting on its behalf (hereinafter collectively referred to as “Lofelt”, “Us”, “We”, or “Our”) and any person or entity and their heirs, agents, successors and assigns (hereinafter singularly and collectively referred to as “You” or “Your”) that have purchased access to Lofelt’s Software by subscribing any of Our Subscription Plans lofelt.com/pricing.
IMPORTANT NOTICE: Your continued use of the Software constitutes Your expressed acceptance of, and agreement to be bound by, this EULA, as in force from time to time. Therefore, You understand and acknowledge that by downloading, accessing, installing or using the Software You agree to be bound by the terms of this EULA. If You do not accept such terms in their entirety, You must not download, access, install or use the Software. If You agree to this EULA on behalf of an entity, or in connection with providing or receiving services on behalf of an entity, You represent and warrant that You have the authority to bind that entity to this EULA. In such an event, “You” and “Your” will refer and apply to that entity or agency.
SECT.1 - PURCHASE, DELIVERY AND REQUIREMENTS
1.1 Authorized sources. You must lawfully acquire the Software by purchasing, downloading or accessing it from Our website lofelt.com or from any of Our authorized reseller, partner or provider (such as, Apple Store, Google Play Store, etc.). In the latter case, You shall also comply with the terms and conditions of such Lofelt’s resellers, partners or providers.
1.3 Delivery. The Software shall be deemed delivered on the date that We make such Software available to You, either with a direct download link or by creating an user account for Your access thereto.
1.4 Requirements. Only software running on the hardware and in the environment specified in the Software’s documentation is unconditionally eligible for running the Software, as well as for Our support and other services. You agree that You are solely responsible for these requirements, as well as for any needed changes, updates and fees.
SECT.2 - RIGHTS GRANTED
2.1 Grant of license. Subject to Your timely payment of all applicable Subscription Plan’s fees, You are granted a limited, worldwide, non-assignable, non-sublicensable, non-transferable and non-exclusive license to use the Software according to the purchased Subscription Plan, as well as to integrate certain Software’s functionalities (i.e., the related SDK - software development kit and the haptic assets generated by the Software) in Your own software, at the sole and exclusive purpose to make such functionalities available to Your customers.
2.2 Instances allowed. You are permitted to access and use the Software only by running the number of instances (i.e., Authorized Users) allowed by the relevant Subscription Plan.
2.3 Scope of the license. You agree that You will use the Software only in connection with Your own normal internal commercial use, and You will not – unless otherwise provided in this EULA or by the applicable Subscription Plan and/or authorized in writing by Us – sell, lease, re-distribute, provide managed service, or otherwise provide or make available, either directly or via other means, or otherwise, the Software to any third party or use it for the benefit of any third party.
2.4 Third-Party Software. You expressly acknowledge and accept that certain content, products and services available via our Software may include Third-Party Software, as specified in Software’s documentation. All Third-Party Software is licensed to You under the terms of this EULA, unless We provide other terms along with the Software’s documentation. To any Third-Party Software shall apply Sect. 8 (Warranty and liability) below; therefore, without limiting the foregoing, Lofelt is not responsible for examining or evaluating the content or accuracy of the Third-Party Software nor provides any warranty, express or implied, with respect to any Third-Party Software and expressly disclaims any warranty or condition of merchantability, fitness for a particular purpose, title, and non-infringement.
2.5 Reservation of rights. We expressly reserve all rights not expressly granted to You in this EULA.
SECT.3 - YOUR RESPONSIBILITIES
3.1 General responsibilities. You are entirely responsible for the use of the Software and, to such purpose, You shall not use, encourage, promote, facilitate, instruct (or induce others to do the foregoing on) the Software for any activity that violates any Law, or for any other illegal, fraudulent, harmful, or offensive purpose, or to transmit, store, display, distribute or otherwise make available information, text, software, pictures, messages or any other Data or material, however named, that is illegal, harmful, offensive, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, inappropriate or that would encourage or constitute a criminal or civil liability under any Law. Examples of prohibited uses of the Software include: (i) take any action on the Software that violates any applicable Law and/or the rights of Lofelt or any third-party’s (including, without limitation, privacy, Intellectual Property Rights, etc.); (ii) uploading viruses or malicious code, or take any other action on the Software that could anyway compromise any functionality thereof; (iii) distributing the Software or any other licensed software distributed by Us, unless otherwise provided by the applicable Subscription Plan or authorized in writing by Us; (iv) exception made for Our software development kit (SDK) and the Data generated by the Software, incorporating a Software in any product designed, developed, marketed, shared, sold or licensed by You or any third party; (v) facilitating or encouraging any violations of this EULA.
3.2 Data lawfulness. You undertake to have all the interest and title (including, without limitation, any related Intellectual Property Right) in and to the Data that You may transmit, store, display, distribute or otherwise make available through the Software, and that You are the sole responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness thereof. Without limiting the foregoing, You warrant and represent that such Data is fully compliant with any applicable Law. In no way whatsoever We will be responsible for any of such Data.
3.3 Updates. In case the Software needs any Updates (as defined below), You expressly agree to install such Updates as soon they are available, bearing any and all the related costs, as communicated by Us. You shall bear full risk of any loss or damage in case any Updates are not properly and timely installed due to Your fault; Lofelt disclaims any liability in such respect.
3.4 Export regulations. You shall comply with all applicable Law with regards to economic sanctions, export controls, import regulations and trade embargoes (hereinafter collectively referred to as “Sanctions”), including those of the European Union and United States (and, specifically, the Export Administration Regulations - EAR). To such purpose, You expressly acknowledge that you are not a person targeted by Sanctions nor You are otherwise owned or controlled by or acting on behalf of any person targeted by Sanctions. Furthermore, You expressly acknowledge that You will not download or otherwise export or re-export Our Software’s content, products or services or any related technical data directly or indirectly to any person targeted by Sanctions or for any end-use prohibited or restricted by Sanctions.
3.5 Indemnification. To any third party’s claim arising out of a violation of Your obligations under this Section, Sect. 9 (Indemnification) below shall apply, in addition to any other rights or remedies afforded to Us under this EULA and/or as per the applicable Law.
SECT.4 - UPDATES, AVAILABILITY AND DISCONTINUATION
4.1 Updates. We, in Our sole discretion, reserve the right to add or remove tools, utilities, improvements, Third-Party Software, features or functions, or to provide programming fixes, updates and upgrades, to the Software in order to improve and enhance the features and performance thereof and/or according Our discontinuation policy (hereinafter collectively referred to as the “Updates”). To such purpose, You expressly acknowledge and agree that: (i) We have no obligation to make available and/or provide any Updates; (ii) in case We provide any Updates, this EULA shall automatically apply thereto, unless We provide other terms along with such Updates; (iii) the Software may contain automatic update technology, a feature used to provide maintenance (such as a bug fix, patches, enhanced functions, missing plug-ins, and new versions) and, by installing the proper software initially, You consent to the transmission of standard computer information and the automatic downloading and installation of maintenance software; (iv) We disclaim any liability in case any Updates result in an unavailability, deficiency or incompatibility of any Third-Party Software (and/or of any other pre-existing feature or function) with the updated Software.
4.2 Availability. We will use commercially reasonable efforts to ensure the availability of the Software for Our customers. Regardless, You acknowledge and agree that We have no control or liability over the availability of the Software on a continuous or uninterrupted basis, so that from time to time the same may be inaccessible or inoperable, including, without limitation, for: (i) equipment malfunctions, periodic maintenance procedures or repairs; (ii) Force Majeure or any other cause beyond Our reasonable control or that are not reasonably foreseeable (including, without limitation, threat to security, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures); (iii) limitations due to Your particular device or hardware; (iv) unavailability, deficiency or incompatibility of any Third-Party Software with the Software for any reason (e.g., third-party’s or Lofelt’s discontinuation policy, incompatibilities between any Updates and a Third-Party Software, etc.); (v) Your violation of any relevant provision of this EULA. Any unavailability of the Software under this Sect. 4.2) shall not excuse You from Your obligation to make timely payment(s) under the applicable Subscription Plan.
4.3 Discontinuation policy. You expressly acknowledge and accept that the Software is subject to Our discontinuation policy and, therefore, We reserve the right – without Our liability in such respect towards You or any other third party – to discontinue any Software’s feature, content or service (including, without limitation, access to technical support, access to Third-Party Software, etc.), in accordance with such discontinuation policy. The preceding applies also to any Third-Party Software, which is subject to such third party’s discontinuation policy, without Our liability towards You or any other third party in case any Updates result in an unavailability, deficiency or incompatibility of any pre-existing Third-Party Software with the updated Software.
SECT.5 - TERM AND TERMINATION
5.1 Term. The rights herein conferred to You are provided as of the Effective Date and for the entire term of the relevant Subscription Plan.
5.2 Termination. In case of Your breach of any term herein provided not cured within 10 (ten) days after Our initial notice thereof, We are entitled to terminate the EULA and/or the relevant Subscription Plan. In such case, You must pay all amounts accrued prior to such termination, as well as all sums remaining unpaid for the Services under the purchased Subscription Plan, plus related damages, taxes and expenses.
5.3 No access after termination. Upon the termination of this EULA, You no longer have rights to access or use the Software and We will delete or otherwise make inaccessible any Data in the Software.
5.4 Obligations surviving termination. Provisions that survive termination or expiration of this EULA are those relating to limitation of liability, indemnification, Intellectual Property Rights and others which by their nature are intended to survive.
SECT.6 - INTELLECTUAL PROPERTY RIGHTS
6.1 Lofelt’s credit. If You purchased the “Starter” and “Individual” Subscription Plans, You shall display the notice “Haptics by Lofelt” in Your software.
6.2 Lofelt ownership. We hold and retain all an any title and interest in and to the Software, as well as in any Intellectual Property Right associated with the same and, therefore, nothing in this EULA will be interpreted as a transfer, in whole or in part, of rights in the Software to You or any other third party.
6.3 Your obligations for Our Intellectual Property Rights preservation. You must not, and must not cause or permit others to: (i) remove or alter any Software identification code, marking or notice of Lofelt or its licensors; (ii) make the the Software available in any manner to any third party for use in such third party’s business operations; (iii) copy, modify, adapt, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Software, or access or use the Software in order to build or support, or assist a third party in building or supporting, products or services competing with the Software; (iv) perform or disclose any benchmark or performance tests of the Software or any associated infrastructure (such as, without limitation, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, etc.); and (v) license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Software to any third party.
6.4 Your Data. You expressly grant Us a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to perform any operation or set of operations (including, without limitation, use, modify, collect, record, organise, structure, store, adapt, alter, retrieve, consult, use, disclose, combine, reproduce, erase, destroy, etc.) on the Data that You provide to Us in any way (by upload or other mean), as far as necessary for the purposes of providing You the Services and improve the functionalities of the Software.
SECT.7 - PRIVACY AND DATA PROTECTION
7.2 Our right to access Data. To the maximum extent permitted by the applicable Law, We expressly reserves the right to access, read, preserve, and disclose any information as we may reasonably believe necessary to: (i) satisfy any applicable Law or any authority request; (ii) enforce this EULA (including investigation of potential violations thereof) or Our Intellectual Property Rights; (iii) detect, prevent, or otherwise address fraud, anti-piracy, security or technical issues (including, without limitation, verify a valid registration, the number of instances the Software launches, the device IP address, and/or the version of the Software, etc.); (iv) conduct internal statistics and analytics, on an anonymized basis; in particular, We may trace the use of the Software for the purpose of obtaining statistics on the use and proper functioning of the Software, as well as for the purpose of correctly provide functionalities and improvements, or for security reasons.
SECT:8 - WARRANTY AND LIABILITY
8.1 Limited warranty. THE SOFTWARE IS PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. TO THE FULLEST EXTENT PERMITTED OR AUTHORIZED BY LAW AND WITHOUT LIMITATION OF THE FOREGOING, WE DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS EULA.
8.2 Disclaimer of liability. IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR PROFITS, BUSINESS INTERRUPTION, ETC.) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE, EVEN IF WE ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY CASE, WE ARE NOT LIABLE FOR THE ACTS OR OMISSIONS OF OUR CONTRACTORS, VENDORS, CLOUD PROVIDER OR OTHER SERVICE PROVIDER. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS EULA.
8.3 Remedies. EXCEPT FOR CLAIMS WITH RESPECT TO FRAUD, DEATH OR PERSONAL INJURY, FOR WHICH NO LIMIT SHALL APPLY, IN NO EVENT – TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW – OUR LIABILITY SHALL IN THE AGGREGATE EXCEED THE FEES EFFECTIVELY PAID BY YOU FOR THE RELEVANT SOFTWARE LICENSE, DURING THE 12 (TWELVE) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. Notwithstanding the preceding, in case the Software infringes or misappropriates any third party’s Intellectual Property Rights and We believe – in Our sole discretion – that this is likely to result in an adverse ruling for Us, then We will at Our sole discretion: (i) modify such Software to be non-infringing; (ii) replace such Software with non-infringing substitute Updates; or (iii) terminate this EULA and provide a pro-rata refund of the fees actually paid by You for the allegedly infringing Software. In the cases (i) and (ii) mentioned above, You shall install the new Software or the Updates as soon they are available. THE FOREGOING CONSTITUTES YOUR SOLE REMEDIES AVAILABLE TO YOU WITH RESPECT TO ANY OF OUR LIABILITY UNDER THIS EULA.
8.4 Mandatory legal provisions. Some jurisdictions do not allow certain limitations of warranty or liability, therefore some or all of the limitations above provided may not apply to You. In such case, the limitations provided herein shall be applicable to the fullest and maximum extent permitted by the applicable Law.
SECT.9 - INDEMNIFICATION
9.1 Indemnification. You shall indemnify and hold Us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) arose by any claim made by any third party (including, without limitation, any agency, public administrations, entities, etc.) against Us in connection with any of Your: (i) violation or breach of any term of this EULA; (ii) violation of any applicable Law, whether or not referenced herein; (iii) violation of any rights of any third party; (iv) use or misuse of the Software.
9.2 Remedies. You expressly agree and acknowledge that any violation of Your obligations pursuant to this EULA may cause Us irreparable harm and damage, which may not be recovered at law. Therefore, You agree that Our remedies for breach of this EULA may be in equity by way of injunctive relief, as well and any other relief available, whether in law or in equity.
SECT.10 - MISCELLANEOUS
10.1 No assignment. You are not allowed to assign this EULA or any rights hereunder, unless with Our previous written consent. Conversely, We are allowed, at Our sole discretion, to assign this EULA or any rights hereunder to any third party, without giving You any prior notice.
10.2 No implied waiver. Any tolerance or silence by Us, even if on a continuous and reiterated basis, in relation to any breach or default by You of any provision of this EULA shall not be considered as a consent to such breaches and defaults and shall not affect the validity of the clause breached nor shall be construed as a waiver to any of the rights pertaining to Us pursuant to this EULA and/or the applicable Law.
10.3 Governing law and exclusive jurisdiction. This EULA is governed by the substantive and procedural Laws of the Federal Republic of Germany, without application of the “United Nations Convention on Contracts for the International Sale of Goods”. Any dispute arising out of, or relating to, this EULA shall be submitted to the exclusive jurisdiction of the Court of Berlin (Germany).
10.4 Prevailing language. In case this EULA is made available in other languages, the English version thereof shall prevail.
10.5 Severability. Should any part of this EULA be declared illegal or unenforceable, the remaining portion will remain in full force and effects.
10.6 Amendments. We may, in our sole discretion, amend this EULA at any time by posting a revised version thereof on Our website at lofelt.com/eula. It is Your responsibility to check our website periodically for changes. Your continued use of the Software following changes to the EULA after the effective date of a revised version thereof constitutes Your expressed acceptance of, and agreement to be bound by, the EULA as in force from time to time.