LOFELT TERMS OF SERVICE
Last update: September 24th, 2020
These terms of service (hereinafter referred to as the “ToS”) constitute 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 its heirs, agents, successors and assigns (hereinafter singularly and collectively referred to as “You” or “Your”) that purchased Our Services.
IMPORTANT NOTICE: Your continued use of, and access to, Our Services constitutes Your expressed acceptance of, and agreement to be bound, by these ToS, as in force from time to time. Therefore, You understand and acknowledge that by accessing or using the Services You agree to be bound by the terms of these ToS. If You do not accept such terms in their entirety, You must not access or use the Services. If You agree to these ToS 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 these ToS. In such an event, “You” and “Your” will refer and apply to that entity or agency.
SECT.1 - DEFINITIONS
1.1 The following capitalized terms shall have the meanings set forth below, provided that the singular includes the plural and vice-versa, and any gender shall include the other genders:
1.2 “Authorized Users” means, singularly and collectively, Your employees authorized to access and use the Services with Your account’s credentials, according to the applicable Subscription Plan.
1.3 “Confidential Information” means, collectively and indistinctly, all information regarding a Party and/or its activities, business or clients that is not generally known to the public or that constitutes a trade secret under any applicable law, regardless of how such information is disclosed to or learned by the recipient Party. “Confidential Information” will include, but not be limited to, data, technical information regarding a Party’s products, services, equipment, technical data, trade secrets, know-how, research, plans, software, inventions, patent applications, processes, techniques, hardware configuration information, agreements with third parties, lists of, or information relating to, employees, consultants, suppliers and customers of a Party, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information of a Party. This definition shall not limit any definition of confidential information or trade secrets or any equivalent terms under any applicable law.
1.4 “Data” means any information, text, message, software, picture, sound, video, haptic effect, music and any library, data, content or material transmitted or conveyed through the Software and/or the Services.
1.5 “Effective Date” means any of the following moments, whichever occurs first: (i) Your express acceptance of these ToS; (ii) Your download and/or installation of the Software; (iii) Your registration of an account on the Lofelt website platform at lofelt.com/api/login; (iv) Your acceptance of any valid communication with Us or any of Our authorised representative that refers to these ToS.
1.6 “Force Majeure” means any event or circumstance: (i) beyond the affected Party’s reasonable control; (ii) that it could not reasonably have been foreseen at the time of signature of these ToS; (iii) whose effects could not reasonably have been avoided or overcome by the affected Party. At the said conditions, “Force Majeure” include: war, hostilities, invasion, act of foreign enemies, extensive military mobilisation, civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy, currency and trade restriction, embargo, sanction, act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation, plague, epidemic, pandemic, natural disaster or extreme natural event, explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy, general labour disturbance (such as boycott, strike and lock-out, go-slow, occupation of factories and premises).
1.7 “Intellectual Property Rights” or “IP Rights” means all intellectual property and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including such rights in and to: (i) trademarks, trade dress, service marks, certification marks, logos, and trade names, and the goodwill associated with the foregoing; (ii) patents and patent applications, and any and all divisions, continuations, continuations-in-part, reissues, continuing patent applications, re-examinations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration, design registrations or patents and like rights; inventions, invention disclosures, discoveries and improvements, whether or not patentable; (iii) writings and other works of authorship; (iv) trade secrets, business, technical and know-how information, business processes, non-public information, proprietary information and confidential information and rights to limit the use or disclosure thereof by any person; (v) software, including data files, source code, object code, application programming interfaces, databases and other software-related specifications and documentation; (vi) domain names, uniform resource locators, and internet addresses; (vii) all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights”, “artist’s rights”, “droit moral”, or the like, to the maximum extent provided by the under applicable laws; (viii) privacy and publicity rights; (ix) any and all technical information, software, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge, invention disclosures or other data, not including works subject to copyright, patent or trademark protection; (x) advertising and promotional materials, whether or not copyrightable; and (xi) claims, causes of action and defences relating to the enforcement of any of the foregoing. In each case above, “IP Rights” include also any registrations of, applications to register, and renewals and extensions of, any of the foregoing with or by any governmental authority in any jurisdiction.
1.8 “Law” means, collectively and indistinctly, any applicable local, state, national, and international law, statute, rule, ordinance or regulation.
1.9 “Party” means either You or Us, while “Parties” means, collectively, both You and Us.
1.10 “Personal Data” means any Data referred to an identified or identifiable natural person.
1.11 “Software” means, collectively and indistinctly, the Lofelt’s proprietary software applications and any Third-Party Software integrated thereto, made available to You with the purchase of a Subscription Plan and either: (i) installed and executed on a local computing machine (hereinafter “Studio Desktop”), or (ii) executed within the web browser of a computing device (hereinafter “Studio Web”), or installed and executed on a mobile device (hereinafter “Studio Mobile Application”). The definition of “Software” includes also any of the said Lofelt softwares’ documentation (including, without limitation, standard product documentation, user and technical documentation, further documents that describe the standard functionalities thereof, etc.), tool, application, application programming interface (API), component, user interface, appearance (including, without limitation, images, designs, fonts, etc.), code (including, without limitation, assemblers, applets, compilers, source code, source code listings, object code), plug-ins into Third Party Software, development libraries and Data, as well as any fixes, patches, updates or upgrades to such Software.
1.12 “Services” means, collectively and indistinctly, the services (including, without limitation, SaaS, internet-based service, etc.) made available to You according to the Subscription Plan You purchased. To such purpose, “Services” include also any Software or Data to which is provided access to You as part of the Services.
1.13 “Subscription Plan” means the subscription plan purchased by You among those available on lofelt.com/pricing.
1.14 “Third-Party Software” means, collectively and indistinctly, any software developed, distributed or sold by an entity other than the Parties, including, without limitation, computer software, documentation (including, without limitation, standard product documentation, user and technical documentation, further documents that describe the standard functionalities thereof, etc.), tool, application, application programming interface (API), development libraries, user interfaces, component, user interface, appearance (including, without limitation, images, designs, fonts, etc.), code (including, without limitation, assemblers, applets, compilers, source code, source code listings, object code, plug-in, etc.), as well as any fixes, patches, updates or upgrades to such items.
SECT.2 - OVERVIEW
2.1 Services. Our Services provide a suite of applications and tools for authoring haptics and integrating those haptics into software, with the following features: (i) automatic generation of haptics from input audio files; (ii) editing of said haptics via a graphic user interface; (iii) encapsulation of said haptics into portable and lightweight haptic files; (v) libraries and game development plug-ins for playback of said haptic files on various devices and platforms. The license of use of any Software to which is provided access as part of the Services is also subject to the terms and conditions of the Lofelt EULA lofelt.com/eula which shall be incorporated herein by reference.
2.2 Rights granted. Subject to these ToS, You are granted a limited, non-assignable, non-sublicensable, non-transferable and non-exclusive license to access and use the Services, within the limits specified in the applicable Subscription Plan purchased. We expressly reserve any and all rights not expressly granted to You in these ToS.
2.3 Requirements. Only software running on the hardware and in the environment specified in the Services’ documentation is unconditionally eligible for running the Services and any related Software. You agree that You are solely responsible for these requirements, as well as for any needed changes, updates and fees.
2.4 Language. The Services, the Software and the related official documentation are provided by Us in English.
2.5 Age limit. You represent and warrant that You are the minimum age in order for Us to lawfully provide the Services to You without parental consent (including using Your Personal Data).
2.6 Scope. You agree that You will use the Services only in connection with Your own normal internal commercial use, and You will not – unless otherwise authorized in written by Us – sell, lease, re-distribute, provide managed service, or otherwise provide or make available the Services to any third party or use it for the benefit of any third party.
SECT.3 ACCOUNT REGISTRATION AND ACCESS
3.1 Account registration. When You subscribe to a Subscription Plan, You will be assigned a username and a password for an account, of which You are entirely responsible for safeguarding and maintaining the confidentiality thereof. You acknowledge and accept that We will assume that any person accessing and using the Services with Your username and password, either is You or is authorized to act for You.
3.2 Authorized Users. You may authorize Authorized Users to access the Services with Your credentials, provided that such access shall be for Your sole benefit and in full compliance with these ToS. To such purpose, You shall: (i) be responsible for Your Authorized Users’ compliance with these ToS as well as for all activities that occur under Your usernames, passwords or accounts or as a result of any Authorized Users’ access to the Services; (ii) identify and authenticate all the Authorized Users, approve their access to the Services, control against unauthorized access by the same Authorized Users, and maintain the confidentiality of usernames, passwords and account information.
SECT.4 - SUBSCRIPTION PLAN
4.1 Subscription Plan. In order to access and use our Services, You are requested to subscribe to a Subscription Plan, choosing among various plans that differ in terms of features, number of accessible services and prices. In particular: (i) the “Starter” Subscription Plan allows You to access Studio Web for the authoring and refining of haptic experiences with a limited playback duration, and includes the right to access one (1) Studio Mobile Application; (ii) the “Individual” Subscription Plan allows You to access all components of the “Lofelt Studio” Software and includes one (1) Authorized User minimum, for the authoring and refining of haptic experiences with unlimited playback duration, and includes the right to access two (2) Studio mobile Applications at a time; (iii) the “Teams” Subscription Plan allows You to access all components of the “Lofelt Studio” Software and includes three (3) Authorized Users minimum, for the authoring and refining of haptic experiences with provision for service level agreements and unlimited playback time clip duration, as well as the right to access unlimited Studio Mobile Applications; (iv) the “Enterprise” Subscription Plan allows You to access all components of the “Lofelt Studio” Software and includes five (5) Authorized Users minimum, for the authoring and refining of haptic experiences with provision for service level agreements and unlimited playback time clip duration, as well as the right to access unlimited Studio Mobile Applications. The full list of the features of each Subscription Plans is available at lofelt.com/pricing.
4.2 Trial Period. The trial period is designed to enable You to evaluate – for free and for a limited period – all or part of the Services before taking out a paid Subscription Plan. In case You apply for a free trial, We will make the required Services available to You until the earlier of: (i) the end of the agreed free trial period, or (ii) the start date of any Subscription Plan purchased before the end of the trial period. In the first case, Lofelt shall not be liable towards You, any Authorized User or any other third party for any Data and/or customization that might be lost.
4.3 Subscription Plan update/downgrade. Changes of Subscription Plans are allowed and immediately effective upon payment only in case such change implies an upgrade of the preceding Subscription Plan. Any change implying a downgrade of the then-current Subscription Plan shall be effective only after the expiry of the latter.
SECT.5 - FEES AND BILLING TERMS
5.1 Fees. When You subscribe to a Subscription Plan, You agree to pay any and all related applicable fees according to the specific terms thereof. Unless otherwise provided, all prices are stated in Euro (EUR). The prices are exclusive of all taxes, levies, or duties imposed by taxing authorities, for which You shall be responsible for the related payment.
5.2 Recurring billing. Subscription fees are invoiced in advance, according to the periodicity set out in the purchased Subscription Plan (i.e., monthly or yearly), and are paid by You via credit card billing (direct or via a payment gateway such as PayPal). To such purpose, You expressly agrees: (i) to provide the payment gateway with valid, up-to-date and complete debit/credit card, contact and billing details associated with You; (ii) to authorize the payment gateway to bill such debit/credit card on the corresponding effective date (and renewals ones) for the due Subscription Plan’s fees; (iii) that We may at Our option – if, for any reason, Your credit/debit card company refuses to pay the amount billed for the the purchased Subscription Plan – suspend or terminate Your access to the features of the Subscription Plan, and require You to pay the overdue amount by other means acceptable to Us, plus an interest rate of one and one-half percent (1.5%) per month or the highest applicable legal rate, from the due date until such amount is paid.
5.3 Prices change. We are entitled to review the fees of any Subscription Plan and, to such purpose, You will be informed at least three (3) months before the change takes effect. In any case, the then-current Subscription Plan’s price shall not be affected by the change, as such new fees shall be applied to the subsequent Subscription Plan’s periods.
5.4 No refunds. We do not refund any fee for any reason; therefore, in case of credit card payments, no chargebacks are allowed.
SECT.6 AVAILABILITY, SUPPORT, UPDATES AND MAINTENANCE
6.1 Availability. We will use commercially reasonable efforts to ensure the availability of the Services for Our customers. Regardless, You acknowledge and agree that We have no control or liability over the availability of the Services 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 or services provider; (v) Your violation of any relevant provision of these ToS. Any unavailability of the Services under this Sect. 5.1) shall not excuse You from Your obligation to make timely payment(s) under the applicable Subscription Plan.
6.2 Technical support. Technical support, if provided by the purchased Subscription Plan, will be provided by Us 9 am to 5 pm UTC (Berlin Time) Monday to Friday, German holidays excluded. We may use a variety of methods (e.g., in-product, internet, chat, e-mail, remote control and phone and online meetings) to provide technical support and customer service in connection with the Services. Support may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. In any case, the support service shall be considered as part of the Services for all the purposes of these ToS.
6.3 Updates and maintenance. We, in Our sole discretion, reserve the right to add additional tools, utilities, improvements, third party applications, features or functions, or to provide programming fixes, updates and upgrades, to the Services in order to improve and enhance the features and performance thereof. In case We provide any of such updates and fixes, these ToS shall automatically apply thereto, unless We provide other terms along with such updates. Furthermore, You acknowledge that the Services may contain automatic update technology in order to provide maintenance (such as a bug fix, patches, enhanced functions, missing plug-ins, and new versions).
6.4 Backup. As We don’t provide any backup or restoration service, unless provided in the related Subscription Plan, You are encouraged to archive Your Data regularly and frequently. Therefore, You shall bear full risk of loss and damage of Your Data; We disclaim any liability in such respect.
SECT.7 - YOUR RESPONSIBILITIES
7.1 General responsibilities. You are entirely responsible for the use of the Services and, to such purpose, You shall not use, encourage, promote, facilitate, instruct (or induce others to do the foregoing on) the Services for any activity that violates any applicable Law, or for any other illegal, fraudulent, harmful, or offensive purpose, or to transmit, store, display, distribute or otherwise make available any Data 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 Services include: (i) creating, uploading, modifying and/or distributing any Data, or take any action using the Services, that is illegal, fraudulent, harmful, or violates any applicable Law; (ii) creating, uploading, modifying and/or distributing any Data, or take any action using the Services, that violates any Lofelt’s right or any third party’s (including, without limitations, privacy, Intellectual Property Rights, etc.); (iii) uploading viruses or malicious codes, or take any other action using the Services that could in any way compromise any functionality thereof; (iv) accessing any account belonging to someone else or sharing Your account password with any third party; (v) distributing the Services or any other licensed software distributed by Us, unless otherwise provided by the purchased Subscription Plan or authorized in writing by Us; (vi) incorporating the Services in any product designed, developed, marketed, shared, sold or licensed by You or any third party, unless otherwise provided by the purchased Subscription Plan or authorized in writing by Us; (vii) facilitating or encouraging any violations of these ToS.
7.2 Account security. You undertake not to share the account password to any third party or let anyone else access the Services (exception made for Authorized Users), or do anything else that might jeopardize the security thereof. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services and agree to notify Us immediately of any unauthorized use thereof.
7.3 Data lawfulness. You undertake to have all the interest and 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 Services, 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.
7.4 Personal Data. Without limiting the foregoing, in case any Data is a Personal Data, You appoint Lofelt as “processor” of the Personal Data in order to process them for the purpose of hosting, processing (including, without limitation, reformat, manipulate, etc.) at the purpose to provide You with the Services. In particular, by accepting these ToS, You accept to be bound also by the Lofelt Data Processing Addendum available at lofelt.com/dpa, which is an integral part of these ToS and is incorporated herein by reference.
7.5 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 Services’ 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.
7.6 Indemnification. To any third party’s claim arising out of a violation of Your obligations under this Section, Sect. 11 (Indemnification) below shall apply, in addition to any other rights or remedies afforded to Us under these ToS and/or as per the applicable Law.
SECT.8 - TERM AND TERMINATION
8.1 Term. These ToS and the rights herein conferred are effective as of the Effective Date for renewable subscription terms of one (1) calendar year each. You can withdraw the Subscription Plan by means of a thirty (30) days’ prior written notice, and the withdrawal shall take effect after the expiration of the then-current subscription term, original or renewed.
8.2 Termination. In case of Your breach of any term herein provided is not cured within 10 (ten) days after Our initial notice thereof, We are entitled to terminate these ToS 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 such Subscription Plan, plus related damages, taxes and expenses.
8.3 No access after termination. Upon the termination of these ToS, You no longer have rights to access or use the Services and, if applicable, We will delete or otherwise make inaccessible Your account and any Data in the Services, if any.
8.4 Obligations surviving termination. Provisions that survive termination or expiration of these ToS are those relating to limitation of liability, indemnification, payment, Intellectual Property Rights and others which by their nature are intended to survive.
8.5 Restoration of terminated Services. Restoration of Services of a terminated Subscription Plan is at Our sole discretion and unconditionally acceptance of the remedy provided by Us. Restoration of service is provided to You as a plea and We reserve the right to decide the provision thereof on a case-by-case basis. In any case, Lofelt shall not be liable towards You, any Authorized User or any other third party for the loss of any Data and/or customization after the termination of a Subscription Plan.
SECT.9 - PRIVACY AND DATA PROTECTION
9.1 Security measures and data breach. We will use best efforts to keep Data on the Services secure and confidential by implementing appropriate technical and organisational security measures to prevent unauthorised access to Data and/or loss or corruption thereof. We will promptly notify You in writing if it becomes aware that Data has been breached.
9.3 Right to access Personal Data. To the maximum extent permitted by the applicable Law, We expressly reserves the right to access, read, preserve, and disclose any Personal Data as it may reasonably believe necessary to: (i) satisfy any applicable Law or any authority request; (ii) enforce these ToS (including investigation of potential violations thereof) or any Lofelt’s Intellectual Property Rights; (iii) detect, prevent, or otherwise address fraud, anti-piracy, security or technical issues (including, without limitation, verify a valid registration, the device IP address, etc.).
9.4 Anonymised Data analysis. We are allowed to analyse anonymised Data (i.e., Data that are no more Personal Data and that, therefore, do not include personal identifiers of a person, such as his or her name, e-mail address, address, etc.) for the purpose to maintain, update or improve the Services, as well as to conduct internal statistics and analytics on the use and proper functioning of the Services. You have no right, title or interest in any result of these analyses performed by Us, which shall be deemed as Lofelt’s Intellectual Property Rights.
SECT.10 - INTELLECTUAL PROPERTY RIGHTS
10.1 Lofelt’s credit. If You purchased the “Starter” and “Individual” Subscription Plans, You shall display the notice “Haptics by Lofelt” in Your software.
10.2 Lofelt’s IP Rights. Notwithstanding any different provision herein, Lofelt holds and retains all and any title and interest in and to the Services, as well as in and to any Intellectual Property Right associated therewith and, therefore, nothing in these ToS will be interpreted as a transfer, in whole or in part, of rights in the Services to You, the Authorized Users or any other third party.
10.3 Your obligations for Our Intellectual Property Rights preservation. You shall not, and shall not cause or permit others to: (i) remove or modify any program markings or any notice of Lofelt’s Intellectual Property Rights or those of its licensors; (ii) make the programs or materials resulting from the Services available in any manner to any third party for use in such third party’s business operations, unless otherwise provided by the purchased Subscription Plan or authorized in written by Lofelt; (iii) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Services, or access or use the same in order to build or support, and/or assist a third party in building or supporting, products or software competitive to Lofelt’s; (iv) perform or disclose any benchmark or performance tests of the Services 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 Services to any third party.
10.4 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.
10.5 Your feedback and suggestions. We may freely use Your feedback, suggestions, or ideas in any way, including in future modifications of the Services or of any other related product, service, advertising or marketing material. To such purpose, You warrant Us that You hold the Intellectual Property Right in and to any of Your feedback or suggestion, and You grant Us a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to use the feedback and suggestions provided to Lofelt in any way. Notwithstanding the preceding, We will not publish or share such feedback in a way that could identify the Customer without its explicit permission.
10.6 Your name, trademarks or logos. You grant Us the right to mention Your name, trademarks or logos as reference or case-study in any Lofelt’s websites, presentations, marketing activities or materials, or in proposals to be sent to prospective clients.
SECT.11 - WARRANTY AND LIABILITY
11.1 Limited warranty. THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, LOFELT DISCLAIMS 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, LOFELT DOES NOT WARRANT THAT THE SERVICES 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 ACCESS TO THE SERVICES 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 THESE TOS.
11.2 Disclaimer of liability. IN NO EVENT LOFELT SHALL 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 SERVICES, EVEN IF LOFELT IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, LOFELT IS NOT LIABLE FOR THE ACTS OR OMISSIONS OF ITS CONTRACTORS, VENDORS, CLOUD PROVIDER OR OTHER SERVICE PROVIDER. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THESE TOS.
11.3 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 – LOFELT’S LIABILITY SHALL IN THE AGGREGATE EXCEED THE FEES EFFECTIVELY PAID BY YOU FOR THE RELEVANT SUBSCRIPTION PLAN, DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING CONSTITUTES YOUR SOLE REMEDIES AVAILABLE TO YOU WITH RESPECT TO ANY OF OUR LIABILITY UNDER THESE TOS.
11.4 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.12 - INDEMNIFICATION
12.1 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) arising 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 these ToS; (ii) violation of any applicable Law, whether or not referenced herein; (iii) violation of any rights of any third party; or (iv) use or misuse of the Services.
12.2 Remedies. You expressly agree and acknowledge that any violation of Your obligations pursuant to these ToS may cause Us irreparable harm and damage, which may not be recovered at law. Therefore, You agree that Our remedies for breach of these ToS may be in equity by way of injunctive relief, as well and any other relief available, whether in law or in equity.
SECT.13 - MISCELLANEOUS
13.1 No assignment. You are not allowed to assign these ToS or any rights hereunder, unless with Our previous written consent. Conversely, We are allowed, at Our sole discretion, to assign these ToS or any rights hereunder to any third party, without giving You any prior notice.
13.2 Force majeure. A Party shall not be responsible for any failure to perform due to any event of Force Majeure. In the event of any such delay, the affected Party will be excused from such performance to the extent it is delayed or prevented by such cause. However, the other Party may terminate these ToS forthwith on written notice if such condition continues for a period of sixty (60) days.
13.3 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 these ToS 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 these ToS and/or the applicable Law.
13.4 Governing law and exclusive jurisdiction. These ToS are 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, these ToS shall be submitted to the exclusive jurisdiction of the Court of Berlin (Germany).
13.5 Prevailing language. In case these Terms are made available in other languages, the English version thereof shall prevail.
13.6 Severability. Should any part of these ToS be declared illegal or unenforceable, the remaining portion will remain in full force and effects.
13.7 Amendments. We may, in our sole discretion, amend these ToS at any time by posting a revised version thereof on Our website at lofelt.com/tos. It is Your responsibility to check our website periodically for changes. Your continued use of the Software following changes to these ToS after the effective date of a revised version thereof constitutes Your expressed acceptance of, and agreement to be bound by, these ToS as in force from time to time.