Terms of Service
END USER LICENCE AGREEMENT
THIS END USER LICENCE AGREEMENT ("AGREEMENT") IS BETWEEN INTERACTIVE MOTION TECHNOLOGIES LIMITED, VALENCE TECHNOLOGIES LTD , AND ITS AFFILIATES HEREINAFTER "SYNCMO" AND THE END USER ("YOU").
TO INSTALL AND USE SOFTWARE AND SERVICES BY SYNCMO YOU MUST ACCEPT THE TERMS OF THE END USER LICENCE AGREEMENT BELOW.
PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING ALL OR ANY PORTION OF SYNCMO SOFTWARE OR SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE SYNCMO SOFTWARE OR SERVICES. SYNCMO RECOMMENDS THAT YOU KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
SECTION 15 OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY AS IT AFFECTS HOW DISPUTES ARE RESOLVED.
1. BACKGROUND TO THE AGREEMENT
- A. A reference in this Agreement to the «Product» means software products, services and any documentation provided by Syncmo.
- B. You wish to use the Product which includes: Custom Browser, Video analysis and motion tracking technology, supported toy drivers.
- C. Syncmo grants you a non-transferable non-exclusive licence to use the Product («Licence») on the terms and conditions of this Agreement.
In consideration of the payment by you of the applicable fee in respect of the Product (the «Fee») Syncmo grants to you a non-exclusive and non-transferable Licence to install and use the Product for your own personal purposes subject to the terms of this Agreement; make one copy of the Product for backup and disaster recovery purposes only; and use the Product strictly in accordance with the provisions of this Agreement. Syncmo reserves all rights not expressly granted to you in this Agreement.
The Product licensed to you may be used by a single person personally on one computer. Only you can use this copy of the Product. In order for someone else to use a copy of the Product they must obtain their own individual and separate Licence.
- (a) to supervise and control the use of the Product in accordance with the terms of this Agreement;
- (b) to ensure that (if applicable) your employees, sub-contractors and other agents who have authorised access to the Product are made aware of the terms of, and comply with this Agreement;
- (c) to not provide or otherwise make available the Product in any form to any person other than as permitted in this Agreement; and
- (d) to ensure that any permitted copy of the Product bears notice of Syncmo’s ownership of copyright.
You must not modify or alter the Product or merge all or any part of the Product with any other software without Syncmo’s written permission. If the Product is modiﬁed or altered:
- (a) the costs associated with the modiﬁcations or alterations will be borne solely by you; and
- (b) you will fully indemnify Syncmo against all liability, cost and expenses (including legal costs) which may be incurred by Syncmo if such modiﬁcations or alterations infringe any intellectual property rights of a third person or otherwise cause Syncmo to suffer loss, damages or expense.
The Product as modiﬁed or altered remains the property of Syncmo in all respects, whether modiﬁed by you, Syncmo or a third party and whether or not authorised pursuant to this Agreement. You must assign to Syncmo all intellectual property rights arising out of any modiﬁcations to the Product.
This Agreement applies to the Product as modiﬁed or altered.
Other than as required by law, you may not reverse engineer, reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse engineer, reverse assemble or reverse compile the whole or any party of the Product.
You are responsible for the use, supervision, management and control of the Product. You must use reasonable endeavours to ensure that the Product is protected at all times from misuse, damage, destruction or any form of unauthorised use. You must keep accurate records of use, copying, modiﬁcation and disclosure of the Product.
5. UPDATES AND NEW RELEASES
Syncmo may in its sole discretion notify you from time to time of any update or new release of the Product. Where an update or new release is provided by Syncmo:
- (a) you must immediately install the update or new release and Syncmo is not liable for, and will (notwithstanding any other provision of this Licence) not accept any liability for any previous version or release; and
- (b) you may be required to enter into a new Agreement for the new update or release and this Agreement (and any previous licence for the Product) will be terminated immediately upon your acceptance of those terms. In the event that no new licence agreement is supplied, this Agreement will continue to apply in all respects to the update or new release which shall be deemed to be the Product for the purpose of this Agreement.
SYNCMO WARRANTS THAT IT HAS AUTHORITY TO GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
SYNCMO WILL NOT BE LIABLE UNDER THIS CLAUSE TO THE EXTENT THAT A DEFECT IS CAUSED BY YOUR USE OF THE PRODUCT OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING THE FAILURE BY YOU OR A THIRD PARTY TO MAINTAIN THE OPERATING ENVIRONMENT DESIGNATED IN THE DOCUMENTATION OR TO OTHERWISE USE THE PRODUCT IN ACCORDANCE WITH ANY SPECIFICATIONS ISSUED BY SYNCMO.
YOU ACKNOWLEDGE THAT THE PRODUCT IS DISTRIBUTED AS IS AND SYNCMO IN NO WAY GUARANTEES THAT IT WILL OPERATE UNINTERRUPTED OR BE ERROR FREE. YOU ACKNOWLEDGE THAT THE EXISTENCE OF ANY ERRORS DOES NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
YOU FURTHER ACKNOWLEDGE THAT GOOD DATA PROCESSING PROCEDURES DICTATE THAT ANY PRODUCT BE THOROUGHLY TESTED WITH NON-CRITICAL DATA BEFORE RELYING ON IT. YOU ASSUME THE ENTIRE RISK OF USING THE PRODUCT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
YOU ACKNOWLEDGE THAT YOU HAVE EXERCISED YOUR INDEPENDENT JUDGEMENT IN LICENSING THE PRODUCT AND HAVE NOT RELIED ON ANY REPRESENTATION MADE BY SYNCMO WHICH HAS NOT BEEN STATED EXPRESSLY IN THIS AGREEMENT OR UPON ANY DESCRIPTIONS OR ILLUSTRATIONS OR SPECIFICATIONS CONTAINED IN ANY DOCUMENT INCLUDING PUBLICITY MATERIAL PRODUCED BY SYNCMO.
SYNCMO SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES MADE IN REGARDS TO THE AMOUNT OF PERFORMANCE, STABILITY, PRIVACY OR SECURITY IMPROVEMENT PROVIDED BY THE PRODUCT. A SIGNIFICANT AMOUNT OF EFFORT WAS INVESTED IN CREATING THE PRODUCT THAT WILL BENEFIT THE CUSTOMER HOWEVER THE ULTIMATE BENEFIT ON EACH COMPUTER VARIES. FURTHER, SYNCMO MAKES NO CLAIM OF PARTICULAR DEFECT, UNDERPERFORMANCE OR DEFICIENCY IN RESPECT TO YOUR COMPUTER SYSTEM AND ANY SUCH CLAIM IS THAT OF A POTENTIAL IMPROVEMENT THAT MAY NOT BE REALISED ON A PARTICULAR COMPUTER.
BY USING THE PRODUCT, YOU WARRANT THAT YOU UNDERSTAND AND AGREE THAT THE PRODUCT IS NOT DESIGNED OR LICENSED FOR MISSION CRITICAL USE, INCLUDING WITHOUT LIMITATION NUCLEAR FACILITIES, AIRCRAFT COMMUNICATION OR NAVIGATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS OR LIFE SUPPORT SYSTEMS, OR ANY SUCH ENVIRONMENT WHERE A DEFECT OR FAILURE IN THE PRODUCT MAY RESULT IN INJURY, INJURY TO PERSONS OR PHYSICAL DAMAGE.
OTHER THAN IMPLIED BY LAW, THE WARRANTIES IN THIS CLAUSE REPRESENT ALL OF THE WARRANTIES GIVEN BY SYNCMO AND NO TERM OR WARRANTY WILL BE IMPLIED.
7. THIRD PARTY PRODUCTS
Certain software or services may be included, bundled, installed by or referenced by the Product, Syncmo websites, documentation or e-mail correspondence («Third Party Products»). Syncmo acts solely as a distributor or an advertising channel for Third Party Products. Such Third Party Products may be subject to different licence terms. Syncmo makes no representations or warranties regarding Third Party Products. By accepting this Agreement, you also agree that Syncmo is not responsible for any consequence of you installing and using Third Party Products. You will look solely to the Third Party Product providers for all such claims.
8. LIVE SUPPORT TERMS
Syncmo may offer you live support (also referred to as technical support, sales support, live assistance, live help desk services and so on) via live chat by showing live chat links on the web site, in the Product and in e-mail correspondence. Live chat support may be offered in other languages with the help of automatic translation tools.
You may not, without the prior written approval of Syncmo, disclose Conﬁdential Information (as deﬁned below). You will not be in breach of this Agreement in circumstances where you are legally compelled to disclose Conﬁdential Information.
You must take all reasonable steps to ensure that you, your employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not disclose Conﬁdential Information.
You may disclose Conﬁdential Information:
- (a) to related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement; or
- (b) if required to disclose the information by law or the rules of any Stock Exchange.
This clause will survive the termination of this Agreement.
11. AUTOMATIC RENEWALS
When you purchase the Product, you are purchasing a subscription to the product for a ﬁxed term. At the end of each subscription period, you will receive an email notification to your last email on record. Online option to cancel subscription is provided together with your license key. Unless this Agreement is terminated, SyncMo will automatically renew the subscription at the end of each subscription term for another period (Renewal Term) by directly charging your account the current renewal price.
12. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that the Product is the subject of intellectual property rights including copyright (the «Rights»). You shall not during or any time after the termination of this Agreement permit any act (including without limitation copying the Product except as permitted in this Agreement) which infringes those Rights. For the avoidance of doubt the Licence granted to you under this Agreement does not give you any right to use any trademarks of Syncmo associated with the Product. You will fully indemnify Syncmo against all liability, cost and expenses (including legal costs) which may be incurred by Syncmo as a result of your breach of the provisions of this clause.
13. LIMITATIONS AND RESTRICTIONS ON USE
You may not do any of the following: (a) copy the Software, the Documentation or any other material accompanying the Software; (b) transfer, sublicense, rent or lease any portion of the Software; (c) modify the Software or create derivative works based on the Software or any portion thereof; (d) reverse engineer, decompile, reverse assemble, disassemble or otherwise attempt to obtain the source code for the Software; (e) make any third party software contained in the Software a stand-alone product; (f) use the Software in any manner not permitted by this Agreement; (g) use this Software in any way that is unlawful, or (h) remove any proprietary notice of SyncMo or any other party from your copy of the Software or Documentation. In addition, you may not use the Software in automatic, semi-automatic or manual tools designed to create or detect malware (viruses, spyware, screenscrapers, keylogging tools, etc).
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SYNCMO’S TOTAL LIABILITY TO YOU IN RESPECT OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE PRODUCT INCLUDING CLAIMS UNDER ANY INDEMNITY OR FOR NEGLIGENCE SHALL BE STRICTLY LIMITED TO THE FEE PAID UNDER THIS LICENCE.
SYNCMO SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOST PROFITS OR FOR PUNITIVE OR EXEMPLARY DAMAGES EVEN IF SYNCMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF ANY CONDITION OR WARRANTY IS IMPLIED INTO THIS AGREEMENT BY LAW AND CANNOT BE EXCLUDED, THE LIABILITY OF SYNCMO FOR BREACH OF THE CONDITION OR WARRANTY IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE GOODS IN THE CASE OF GOODS AND TO THE SUPPLYING OF THE SERVICES AGAIN IN THE CASE OF SERVICES.
You agree to defend Syncmo, its afﬁliates and its and/or their respective successors and assigns, as well as their respective ofﬁcers, directors, employees, agents, licensors, representatives, operational service providers and suppliers against any and all claims, demand and/or actions and indemnify and hold Syncmo, its afﬁliates and its and/or their respective successors and assigns, as well as their respective ofﬁcers, directors, employees, agents, representatives, suppliers, licensors and contractors harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees), resulting from your breach or violation of this Agreement, infringement, misappropriation or your violation of the rights of any other party, your violation or non-compliance with any law or regulation, or your alteration or export of the Product. Syncmo reserves the right to assume, at its expense, the exclusive defense and control of any claims or actions and all negotiations for settlement or compromise, and you agree to fully cooperate with Syncmo upon its request.
16. BINDING ARBITRATION AND CLASS ACTION WAIVER
This Section 15 shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section, such provisions will not apply to you. Hereby you agree to have any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Product (collectively, «Disputes») settled by binding individual arbitration before the American Arbitration Association («AAA») under the Federal Arbitration Act («FAA»), and not to sue in court in front of a judge or jury. The arbitrator’s decision will be ﬁnal except for a limited right of appeal under the FAA.
Exception. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Class Action Waiver. You agree that combining individual proceedings without the consent of all parties, class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity, against Syncmo and any of Syncmo’s subsidiaries, related companies, afﬁliates, agents, employees, predecessors in interest, successors and assigns under this Agreement or any prior agreements between us, shall not be allowed.
Arbitration Procedures. If you have a Dispute, you agree to send your claim to Syncmo customer support ﬁrst and give us 30 days to try and resolve it. If the Dispute is not resolved after 30 days, you may start arbitration. Any Dispute must be ﬁled for arbitration within 1 year from the date when the event giving rise to the Dispute occurred. The AAA will conduct any arbitration under its Consumer Arbitration Rules. To start arbitration, submit the form available at aka.ms/arbitration to the AAA; mail a copy to Syncmo. In a Dispute involving USD10,000 or less, any hearing will be by telephone unless the arbitrator ﬁnds good cause to hold an in-person hearing instead. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
Right to Opt Out. If you do not wish to be bound by this Arbitration and Class Action Waiver provision, you must notify Syncmo in writing within 30 days of the date of your product order via email to Syncmo customer support or by mail at the address in this Agreement. Your written notiﬁcation must include your name, address and your Syncmo software order number, and must contain a clear statement that you do not wish to resolve Disputes with Syncmo through arbitration. Your decision to opt out of this arbitration provision will have no adverse effect on your relationship with Syncmo or the delivery of products or services to you by Syncmo. If you do not provide Syncmo with an Opt-out Notice within the 30 day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth under Exception in this clause.
Severability. If any part or all of this arbitration provision or class action waiver is found to be unenforceable as to all or some parts of a Dispute, the remaining parts of this provision will still apply and the remaining parts of the Dispute will proceed in arbitration.
THIS PROVISION SHALL SURVIVE TERMINATION OF THE END USER LICENCE AGREEMENT.
A party may terminate this Agreement immediately by written notice if:
- (a) the other party is in material breach of any term of this Agreement and such breach is not remedied within thirty (30) days of notiﬁcation; or
- (b) the other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
Upon termination of this Agreement you must immediately cease using the Product and destroy all copies of the Product.
You may not assign this Licence without the written consent of the other party (such consent not to be unreasonably withheld or delayed).
Any express statement of a right of Syncmo under this Agreement is without prejudice to any other rights of Syncmo expressly stated in this Agreement or existing at law.
The obligations of the parties under this Agreement are suspended during the continuance of any Force Majeure Event to the extent that those obligations are affected by the Force Majeure Event.
You submit to the jurisdiction of the courts exercising jurisdiction at the place of incorporation of Syncmo or its afﬁliates, provided however, that Syncmo retains the right to pursue any litigation arising from your use of the Product in your national courts.
All notices must be in writing and addressed includes the case of notices to Syncmo to its registered ofﬁce.
Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
This Agreement contains the entire agreement between the parties with respect to its subject matter.
Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about its subject matter except as provided in this Agreement.
No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.
Any variation of this Agreement must be in writing signed by each party.
19. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires:
«Conﬁdential Information» means the conﬁdential information which relates to the subject matter of this Agreement and includes information relating to:
- (a) the design, speciﬁcation and content of the Product;
- (b) the personnel, polices or business strategies of Syncmo; and
- (c) the terms upon which the Product is being supplied and installed pursuant to the Licence granted in this Agreement.
«Force Majeure Event» means any event not within the control of a party whose obligations are affected;
In this Agreement, unless the context otherwise requires:
- (d) headings are for convenience only and do not affect interpretation;
- (e) the singular includes the plural and conversely;
- (f) the gender includes all genders;
- (g) where a word or phrase is deﬁned, its other grammatical forms have a corresponding meaning;
- (h) a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
- (i) a reference to a clause is to a clause of this Agreement;
- (j) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
- (k) a reference to any agreement or document is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
- (l) a reference to any legislation or to any provision of any legislation includes any modiﬁcation or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
- (m) a reference to conduct includes, without limitation, any omissions, statement or undertaking, whether or not in writing;
- (n) all references to $ are to US dollars; and
- (o) where two or more persons have rights or obligations they are bound jointly and severally.