SIMPLYGON END-USER LICENSE AGREEMENT
Copyright (C) 2016, Donya Labs AB. All rights reserved.
Welcome to Simplygon Cloud, the web-based 3D-model (“3D Model”, “Asset”, “Model”) optimization service owned and operated by Donya Labs AB, a Swedish corporation (Hereinafter “Donya”). This End-User License Agreement (this “Agreement”, “EULA”) applies to all users of the Simplygon Cloud Service (collectively or individually, ”You”, “Users”, “Customer”).
BEFORE USING THE SERVICE, PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON “ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING (IF YOU ARE A USER BASED IN THE UNITED STATES) THE PROVISIONS OF SECTIONS 30 AND 31 UNDER WHICH YOU AGREE TO ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND AGREE NOT TO BRING CLASS ACTIONS CLAIMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT CLICK “ACCEPT,” IN WHICH CASE YOU WILL NOT BE ABLE TO USE THE SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
PLEASE NOTE THAT YOU ARE STRICTLY PROHIBITED FROM USING THE SIMPLYGON CLOUD SERVICES TO CREATE PROCESSED CONTENT FOR INCLUSION IN PRODUCTS AND SERVICES (I.E. VIDEO GAMES ETC.) WITH A BUDGET EXCEEDING ONE MILLION EURO UNLESS SPECIFICALLY PERMITTED; OR FOR CREATING PROCESSED CONTENT TO BE SOLD, LEASED, LICENSED OR OTHERWISE PROVIDED TO THIRD PARTIES ON A "STAND-ALONE" BASIS.
1. ACCEPTANCE. This End User License Agreement is a legal agreement between You and Donya, and governs your use of Simplygon Cloud and related products and services which includes computer software and third party integrations and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services (“Simplygon Cloud”, “Service”), provided to you by Donya. The purpose of this End Use License Agreement and the License is to allow You to use Simplygon Cloud and any updates thereto provided by Donya during the Term on the terms and conditions stated in this End User License Agreement. This EULA is made effective beginning on the date on which you first accept this EULA or download, install, load or otherwise use Simplygon Cloud (whichever occurs first) (the “Start Date”).
NOTWITHSTANDING THE FORGOING, PLEASE NOTE THAT BY DOWNLOADING, INSTALLING OR OTHERWISE USING SIMPLYGON CLOUD OR ANY RELATED SERVICE OR APPLICATION ETC. YOU AGREE TO ABIDE THE TERMS AND BE BOUND BY THE TERMS OF THIS EULA AND A LEGALLY BINDING AGREEMENT IS CREATED BETWEEN DONYA AND YOU. DONYA OWNS ALL INTELLECTUAL PROPERTY RIGHTS IN AND TO SIMPLYGON CLOUD AND PERMITS YOU TO USE SIMPLYGON CLOUD ONLY IN ACCORDANCE WITH THESE TERMS. YOUR USE OF SIMPLYGON CLOUD CONSTITUTES YOUR ACCEPTANCE OF THE EULA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, COPY, OR USE SIMPLYGON CLOUD.
ACCOUNTS. To use Simplygon Cloud you must either register a Simplygon Cloud account via Donya’s website, or access Simplygon Cloud through any permitted Application or Third Party asset stores etc, provide required user information and download and install certain software, “applications” or “plug-ins”. The account must be registered to only one (1) individual physical person (“Registered User”). Accounts registered and owned by a corporation or other legal entity must have one (1) physical person listed as the Registered User of the account who will be the only permitted person to use Simplygon Cloud. You may not, under any circumstances, whether intentionally, or through negligence or inaction, allow or enable others (another individual or entity etc.) to access your account, unless specifically permitted in writing by Donya. Donya reserves the right to disable or block accounts, end your subscription etc. without notice. You are not permitted to transfer your account, Processed Content etc. to another person or entity, unless specifically permitted in writing by Donya. You may delete your account at any time, but Donya reserves the right, but is not obligated to, keep copies of any asset you have created with Simplygon Cloud. You are only allowed to have one account of Simplygon Cloud Free (You as an individual and counting any association, corporation, partnership, trust etc.). However, You may have several premium accounts. You must have a Premium Account for each individual user using premium services.
If enabled by Donya in its sole discretion, you may establish a Simplygon Cloud account with account data provided to Donya by a third party such as a social networking service, in which case you may have a separate, additional account relationship with such third party. Please note however that you may not have more than one Simplygon Cloud Free account.
3. INTERNET ACCESS. A high speed Internet connection is required for proper transmission of and access to Simplygon Cloud. You are responsible for procuring and maintaining the network connections that connect Your network to Simplygon Cloud, including, but not limited to, “browser” software that supports protocols used by Third Parties, including Secure Socket Layer (SSL) protocol or other protocols accepted by Third Parties and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Donya or our partners. We assume no responsibility for the reliability or performance of any connections as described in this section.
4. APPLICATIONS, PLUG-INS ETC. An application or a plug-in is a software, tool or interface that You may need to access and/or download and install in order to access and use Simplygon Cloud. Such application and/or plug-ins may be available for download, free of charge or for a fee.
5. SIMPLYGON CLOUD. When You have registered an account for Simplygon Cloud You may upload content (hereinafter “Original Content”) for processing onto the Simplygon Cloud servers or equivalent. Through Simplygon Cloud You are able to automatically create LODs and other optimized 3D models by uploading Original Content to the Simplygon Cloud Service. After uploading and processing the Original Content for automatic optimization in the Simplygon Cloud Service You will have created optimized Processed Content from you Original Content (hereinafter “Processed Content”) that can be downloaded and used on certain conditions stated in this EULA. Simplygon Cloud consists of two types of services: free services (“Simplygon Cloud Free”) and premium fee-based services (“Simplygon Cloud Premium”).
PLEASE NOTE THAT DONYA DOES NOT PERMIT ANY NEW CUSTOMERS TO PROCESS MATERIALS IN THE SIMPLYGON CLOUD SERVICES.
6. REPRESENTATION. You represent and warrant that you own the Original Content you upload for processing or otherwise have all licenses, rights, consents, and permissions necessary for the inclusion of Original Content within the Service and use of materials in the manner contemplated by Donya and this Agreement.
7. SIMPLYGON CLOUD FREE. Simplygon Cloud Free is a service with basic features that has a limit for the number of assets that can be processed per month and limitations for the commercial use of the Processed Content. Simplygon Cloud Free users has access to one (1) effective hour per month of processing on the Simplygon Cloud Free servers, and their Original Content may be placed in a waiting line before processing. You may use Simplygon Cloud Free for commercial use if you are i) a legal entity with annual gross revenues of less than US$100,000 (based on latest available completed fiscal year reporting) or raised funding of less than US$100,000 (raised funding including but not limited to loans, investments obtained (venture capital, public offerings, private equity etc.),crowd funding etc.); ii) an educational, academic, non-profit or government entity, with a total annual budget for the entire fiscal year; or iii) an Individual (natural person) (hereinafter “Micro Enterprises”, ”ME”). Any legal entity with annual gross revenues in excess of US$100,000 (based on latest available completed fiscal year reporting) or with raised funding of more than US$100,000 (raised funding including but not limited to loans, investments obtained (venture capital, public offerings, private equity etc.), crowd funding etc.) (hereinafter “Larger Enterprises”) may only use Simplygon Cloud Free for testing and evaluation, on terms and conditions stated in section 9 but not for any other use. Any prohibited use of the Simplygon Cloud Free service, including commercial use above and beyond the allowed limits, will result in a penalty of € 50,000 (Fifty Thousand Euros) per occurrence, termination of this Agreement and an obligation to Compensate Donya for any and all losses and damages herewith. Donya reserves the right to keep copies of all Customers’ Processed Content created with Simplygon Cloud Free for the purposes of verifying that such Processed Content are not used for commercial use beyond allowed limits etc.
8. PERMITTED TESTING OF SIMPLYGON CLOUD FREE BY A LARGER ENTERPRISE. A Larger Enterprise may only use Simplygon Cloud Free in order to test and evaluate the Simplygon Cloud service, for example to test whether the Simplygon Cloud services might solve its needs/problems, fits into its workflow, is of sufficient quality etc. Such testing and evaluation may only take place for a trial period, not to exceed 30 days, starting from the day the Large Enterprise gets access to Simplygon Free. A party may only be permitted to one (1) trial period, unless Donya states otherwise in writing.
9. SIMPLYGON CLOUD PREMIUM. Simplygon Cloud Premium Services are premium services with more features and faster processing that allows for more assets to be processed into Processed Content. Simplygon Cloud Premium may be used for creation of Processed Content for Commercial Use by Customers who desires a more complete set of services, faster processing etc. Larger Enterprises must obtain a Simplygon Premium Account for any commercial use of Simplygon Cloud services.
10. COMMERCIAL USE. Commercial Use is the use or exploitation of any Processed Content in a manner that in any way results in direct or indirect compensation or commercial gain, benefit, advantage in any form, personal or otherwise, to You or any other party, independent of whether You actually sell, lease or offer etc. any products and/or services containing any Processed Content.
11. CREATING A SIMPLYGON CLOUD PREMIUM ACCOUNT. You can create a Simplygon Cloud Premium account or upgrade from Simplygon Cloud Free to Simplygon Cloud Premium Services at any time by registering a Simplygon Cloud Premium Account and paying the applicable fees for a Simplygon Cloud Premium Services. You may also be provided a Premium Account (“Simplygon Cloud Premium Account”, “Premium Subscription”, “Subscription”) from Donya or Third Party partners. When you open a new Simplygon Cloud Premium account or upgrade to Simplygon Premium Account you authorize Donya or its partners to charge your credit card, or use other forms of payment methods accepted by Donya, for the Subscription Fees ordered in accordance with the payment terms (as may be amended by Donya or its partners from time to time). You are responsible for reviewing the EULA or the Service for any changes in the fee or payment terms etc. If a change is unacceptable to you, you may, as your sole and exclusive remedy, terminate and close your Account as described in the termination section below. You are responsible for paying all applicable taxes (including those taxes and tariffs etc. Donya or its partners are not required to collect) and for all hardware, software, Internet service costs and other costs you incur to access the Service. Donya and its partners reserve the right to change the Fees, the payment terms, any availability of the Simplygon Cloud and its services etc. at any time without notice; provided, however, such changes will not affect the fees and payment terms for any products and services already purchased and paid for in full.
ALL FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, UNLESS STATED OTHERWISE BY DONYA IN WRITING.
PLEASE NOTE THAT DONYA DOES NOT PERMIT ANY NEW SIMPLYGON CLOUD PREMIUM ACCOUNTS.
12. PAYMENT. Please note that once you have ordered a service on Simplygon Cloud, you have started consuming the service, and you cannot disclaim the ordered service or demand return payment, unless there is a major default in the Service that hinders your enjoyment of ordered service over an extended period of time. You agree to fully pay any and all Fees for the Services purchased through your account with any form of payment methods accepted by Donya You are responsible for providing Donya with valid credit card information to secure payments. Donya reserves the right to cancel any premium service ordered if any funds are insufficient, the credit card information you provide is not valid or you are not signed up for a subscription plan or have agreed to pay rental fees etc. Payments may be processed in cooperation with third party payment service providers.
You must be connected to a Donya or partner store to be able to purchase a Premium service or Premium account. You are informed of the fees, charges and payment terms during the registration or purchase process. Donya may also offer other services, either for one-time fees or for recurring fees. The current fees and payment terms may be viewed on Donya’s website, third party stores or in other locations as informed to you by Donya and/or partners. Donya and/or partner stores may amend the fees and payment terms at any time. All fees are in EURO, unless otherwise specified. If your purchases etc. are subject to any type of applicable taxes, then Donya and partners may also charge you for any such taxes.
13. ACCESS. In consideration of the payment of the applicable Fees, if any, and subject to compliance by yourself with the terms contained herein, Donya shall provide you with access to Simplygon Cloud and enable you to access and use Simplygon Cloud. If Donya is unable to process any applicable payment at any time, your access to Simplygon Cloud may be suspended or terminated at Donya’s discretion.
14. LICENSE. Upon establishing a valid account, registered to one (1) individual Registered User as stated in section 2, Accounts, above, and subject to your continued compliance with the End User License Agreement Donya grants you the following rights on a limited, non-exclusive, revocable basis: A personal, non-sublicensable, non-transferable, revocable license to install, use, access, display and run Simplygon Cloud, including plug-ins, on one (1) computer, such as a workstation, terminal or other device ("Workstation Computer") in order to use Simplygon Cloud to create Processed Content for inclusion in your products and services (i.e. videogames etc.). However, you are allowed to install use, access, display and run Simplygon Cloud on a secondary (and tertiary) device, provided that Simplygon Cloud may only be accessed on such device by the Registered User, and that you may not be logged in on more than one device simultaneously (the system will automatically log you out from the first device if you log into a second device), unless stated otherwise in the Simplygon Cloud Service. You may not, under any circumstances, whether intentionally, or through negligence or inaction, allow or enable others (another individual, legal entity etc.) to access Simplygon Cloud without the prior written consent of Donya.
PLEASE NOTE THAT DONYA DOES NOT PERMIT ANY NEW CUSTOMERS LICENSES TO PROCESS MATERIALS IN THE SIMPLYGON CLOUD SERVICES.
15. PROHIBITED USE. Simplygon Cloud may not be used for creating Processed Content that are to be sold, leased, licensed or otherwise provided to third parties on a “stand-alone” basis, i.e. You may only use the Simplygon Cloud services to create Processed Content for inclusion in your own products and services (i.e. videogames etc.). You may not create and sell etc. Processed Content on its own for re-use by other parties, unless you have received Donya’s prior written consent and agrees to pay a license fee as stipulated by Donya. Simplygon Cloud may furthermore not be used for creating Processed Content that is to be included, used, inserted or otherwise utilized in products and services (i.e. video games etc) with an actual or estimated production budget exceeding EURO 1,000,000 (One Million Euro) unless specifically permitted. For the avoidance of doubt: You may only use the Simplygon Cloud services to create Processed Content for inclusion in products and services with a budget of less than EURO 1,000,000 (One Million Euro) unless specifically permitted by Donya. Please contact Donya Labs for any inquiries regarding prohibited use or specific permission requests.
16. STORAGE OF CONTENT. Donya will use commercially reasonable efforts to save all your Content (Original and Processed Content) on its servers for 24 hours, but has no obligation to do so. Donya may save information regarding Your Content such as settings, complexity-analysis data etc. as well as the actual individual 3D assets or models on its servers perpetually, but is not obligated to do so. Donya shall use commercially reasonable efforts to maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Content but shall have no responsibility for any loss, infringement or hacking etc. thereof by any third party and any related damages or losses etc. unless such losses etc. are due to Donya’s gross negligence or willful disregard. We shall not: (a) modify Your Content with the exceptions stated in this Agreement; (b) disclose Your Content except as compelled by law, this Agreement or as expressly permitted in writing by You; or (c) access Your Content except as permitted in this Agreement, to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. You are responsible for the Content you store and create with Simplygon Cloud in the cloud, including its maintenance, operation and compatibility in and with the cloud, and any third-party claims regarding the same. You understand and agree that neither Donya nor any third party service providers or other Cloud Partners have control over the Content or other material If You transmit to another storage system such transmission and any related interaction is solely on your risk. Neither Donya, any third party service provider or other Cloud Partners will be responsible for any disclosures, modifications or deletions of your Content etc. resulting from any such transmission. Neither Donya, any third party service provider or other Cloud Partners makes any warranties about, or will have any liability for, such transmissions. Simplygon Cloud may be subject to limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, or other usage limits. We will use commercial reasonable efforts to notify You of such limits.
17. CONSENT TO USE OF DATA. You agree that Donya may collect and use technical information and data gathered as part of the product support services provided to you, if any, related to Simplygon Cloud and Donya may share generic, non-customer specific information with its affiliates and partners but no customer specific data, and not to any other third party. Donya, affiliates and partners may use such generic information for various metrics. Donya may use this information solely to improve Simplygon Cloud, its products and services or to provide customized services or technologies to the customers and will not disclose this information in a form that personally identifies you, without your consent.
18. INTELLECTUAL PROPERTY RIGHTS. Donya owns all right, title, copyright, and other intellectual property rights and interest, including but not limited to All trademarks, service marks, and trade names etc. in Simplygon Cloud, software, material, any documentation and any copies thereof and retains all such rights and any other products and services. Except as expressly granted in this EULA; no license, right or interest in any Donya patent, trademark, copyright, trade name or service mark is granted hereunder. Simplygon Cloud is licensed, not sold. Except as expressly authorized by Donya, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works or competing services from, or otherwise make unauthorized use of Simplygon Cloud or other Donya Materials. You agree not to assert against Donya any claim, action or proceeding for infringement of any patents, patent rights or other intellectual property rights. You are not required to provide any ideas, feedback or suggestions regarding the Simplygon or any of Donya’s products or services (collectively, “Feedback”) to Donya. To the extent you do provide any Feedback to Donya, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to Donya and acknowledge that Donya may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
19. LICENSE RESTRICTIONS. You agree not to (i) attempt to reverse engineer, decompile, translate, or disassemble Simplygon Cloud or related software or materials; (ii) rent, lease, or transfer Simplygon Cloud, or related software or materials; (iii) disclose the results of any performance benchmarks of Simplygon Cloud or related software or materials to any third party without Donya’s prior written consent. You agree to abide by all applicable laws and regulations in using Simplygon Cloud. You expressly agree that you shall not: (a) use Simplygon Cloud for any illegal purpose; (b) use Simplygon Cloud in any manner which violates the rights of a third party, including without limitation intellectual property rights; or (c) use Simplygon Cloud in any manner that breaches the EULA. Nor may You take any action that imposes an unreasonable or disproportionately large load on the System or servers etc. You may not without specific prior written consent from Donya use your own or third-party software to modify any content appearing within Simplygon Cloud or its environment or change how Simplygon Cloud is used. You may not, without express permission, use Simplygon Cloud or any information accessible through the System, to bypass the System login architecture or create or provide any other means through which the System may be accessed and/or the Services may be used by others.
20. LINKS TO OTHER WEBSITES. The Service may contain links to other websites. Donya does not review or evaluate the websites linked to in Simplygon Cloud and is not responsible for the accuracy, copyright compliance, legality, decency, or appropriateness of the content on these websites, nor is it responsible for the advertising, products, or other materials that appear on or are offered by such websites. You should carefully review the respective conditions of use for each of these websites. Under no circumstances shall Donya be held responsible or liable, directly or indirectly, for any loss or damages caused or alleged to have been caused by your use of or reliance on any content, goods, or services available on such websites.
21. ELECTRONIC COMMUNICATIONS. When you use Simplygon Cloud, or access Simplygon Cloud through any Third Party Store Provider (for example the Unity Asset Store etc.) or send e-mails to us etc., you are communicating with us electronically. You consent to receiving communications from us electronically and communicate with us electronically. We will communicate with you by e-mail or by posting notices in the Service or by other means Donya finds suitable. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
22. TERMS AND TERMINATION. The term of this EULA and the license granted herein shall begin on the Start Date, as defined above, and shall be ongoing until terminated. Donya may terminate this Agreement at any time with 30 days’ notice. You may terminate the EULA with regard to your Account at any time, by registering such termination on Donya’s webpage, www.simplygon.com. Termination of the EULA will result of your account being deactivated and your Simplygon Cloud license being deactivated. Notwithstanding anything to the contrary herein, this EULA shall terminate, upon your failure to comply with or breach of any term or provision of this EULA, and such breach has not been cured within 10 days of notice of breach by Donya or any Third Party Store Provider. Upon expiration or termination of this agreement you shall (i) immediately cease use of Simplygon Cloud and (ii) destroy all copies of Simplygon Cloud, plug-ins etc. within your possession and any item containing confidential information, and all of its component parts, within your possession, unless your use is otherwise specifically permitted by Donya. If Donya terminates Simplygon Cloud, you will not receive a refund of prepaid fees. Articles 3, 7, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 shall survive expiration or termination of this agreement.
23. CREATION AND OWNERSHIP OF PROCESSED CONTENT. You own all Processed Content created by you with the use of Simplygon Cloud provided that you have abided by the EULA, paid any applicable fees, and your rights has not been terminated by Donya or any Third Party Provider.
24. LICENSE TO PUBLICALLY DISPLAY YOUR PROCESSED CONTENT CREATED WITH THE SIMPLYGON CLOUD FREE SERVICES. As part of the Simplygon Cloud Free terms You grant Donya a perpetual, global, fully paid up, non-exclusive and non-revocable right and license to publically display/publish any Processed Content created under a Simplygon Cloud Free Account for, including but not limited to, promotional purposes etc. For the avoidance of doubt, content processed with a Simplygon Cloud Free account may be publically displayed/published by Donya even if You acquire or upgrade to a Premium account.
25. CONFIDENTIALITY. You acknowledge that Simplygon Cloud, and any documentation etc., contains confidential and proprietary information. You agree to maintain the confidentiality of Simplygon Cloud and documentation during the term of this EULA. For a period of 10 years after expiration or termination of this EULA, you agree that the documentation shall be treated as confidential information. Simplygon Cloud shall be treated as confidential in perpetuity. You agree to take commercially reasonable steps to ensure that confidential information is not disclosed or distributed by you.
26. DISCLAIMER OF WARRANTY. DONYA WILL USE REASONABLE EFFORTS TO PROVIDE YOU WITH A SERVICE THAT IS FAST, RELIABLE AND ENJOYABLE. HOWEVER, DONYA MAKES NO REPRESENTATION OR WARRANTY AS TO THE COMPLETENESS OR ACCURACY OF SIMPLYGON CLOUD OR INFORMATION CONTAINED THEREIN, NOR DOES IT REPRESENT OR WARRANT THAT SIMPLYGON CLOUD WILL BE AVAILABLE AT ALL TIMES OR THAT IT WILL FUNCTION IN A MANNER OR AS FAST OR EFFICIENT AS YOU MAY EXPECT OR DESIRE. THE INFORMATION CONTAINED IN SIMPLYGON CLOUD MAY BE INCOMPLETE, MAY CONTAIN ERRORS, OR BECOME OUT OF DATE AT ANY TIME. SIMPLYGON CLOUD IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY EXPRESS WARRANTIES. DONYA SHALL HAVE NO OBLIGATION TO CORRECT ERRORS IN, PROVIDE UPDATES FOR OR OTHERWISE SUPPORT SIMPLYGON CLOUD. DONYA RESERVES THE RIGHT TO ADD, MODIFY, OR DELETE ITS SIMPLYGON CLOUD SERVICES ETC. AT ANY TIME. YOU BEAR THE RISK OF USING IT. DONYA DOES NOT GIVE ANY EXPRESS OR STATUTORY REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS. DONYA ALSO EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ETC. NOTHING IN THIS AGREEMENT SHALL AFFECT THOSE STATUTORY RIGHTS WHICH YOU MAY BE ENTITLED TO AS A CONSUMER AND THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY DO NOT APPLY IF AND TO THE EXTENT YOU SUSTAIN DAMAGES WHICH WERE CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF DONYA.
27. LIMITATION OF LIABILITY AND REMEDIES. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE (UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW), SHALL DONYA (INCLUDING BREACH OF ANY WARRANTY HEREUNDER) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM YOUR USE OF SIMPLYGON CLOUD OR RELATED DOCUMENTATION OR IN CONNECTION WITH OR ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF DONYA OR A DONYA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF DONYA AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON SIMPLYGON CLOUD UP TO EURO 100. IN NO EVENT SHALL DONYA’S AGGREGATE LIABILITY FOR ALL INCIDENTS DURING THE TERM OF THE AGREEMENT EXCEED EURO 100. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.IN ORDER TO BE ENTITLED TO ANY INDEMNIFICATION OR COMPENSATION FROM DONYA YOU MUST (I) PROMPTLY NOTIFY DONYA IN WRITING OF THE CLAIMS (WHETHER OR NOT LITIGATION OR OTHER PROCEEDING HAS BEEN FILED OR SERVED), (II) GIVE DONYA, AT DONYA’S OPTION AND EXPENSE, SOLE CONTROL OVER THE DEFENCE AND/OR SETTLEMENT OF THE CLAIMS, AND (III) AT YOUR OWN EXPENSE, YOU SHALL COOPERATE WITH DONYA IN ALL REASONABLE ASPECTS IN CONNECTION WITH THE DEFENSE OF ANY SUCH CLAIM. DONYA SHALL HAVE NO LIABILITY TO YOU IN THE EVENT THAT YOU HAVE FAILED TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
28. INDEMNIFICATION. Your use of Simplygon Cloud constitutes your agreement to defend, indemnify, and hold harmless Donya, its parents and affiliates, partners, and their respective employees, contractors, officers, and directors, from and against any actions, claims, demands, liability and expenses, including reasonable attorneys’ fees, arising out of your use or misuse of Simplygon Cloud and the rights granted under this Agreement. You agree that Donya may seek and shall be entitled to injunctive, equitable, or other similar relief to protect, maintain, defend, enforce, and preserve such rights, in addition to any other available remedies without the necessity of posting a bond.
29. ARBITRATION. If you are located within the United States of America, the following applies to you: Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
30. CLASS ACTION WAIVER. YOU AGREE THAT ANY CLAIMS SUBJECT TO ARBITRATION UNDER SECTION 30 MUST BE MADE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
31. CLAIMS. YOU AND DONYA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
32. GOVERNING LAW. (a) If you are located outside of the United States of America this Agreement shall be governed by and construed in accordance with the laws of Sweden, without giving effect to any principles of conflicts of law, and the parties hereby consent to the sole and exclusive jurisdiction of the courts of Sweden, with the district court of Linköping (Linköpings Tingsrätt) as first venue, to resolve any disputes arising out of or relating to this Agreement. (b) If you are located within the United States of America, and unless otherwise required by a mandatory law of any jurisdiction, this Agreement shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration as set forth above in Section 26 shall be filed only in the state or federal courts in and for New York County, New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. (c) Notwithstanding anything to the contrary, Donya may apply to any court of competent jurisdiction for injunctive or other equitable relief.
33. MODIFICATION. Donya reserves the right, at its discretion, to update or revise the EULA at any time. Donya will post such changes on its Cloud Service, and/or its Website, and/or communicate such changes via electronic mail or otherwise communicate such terms to you in a suitable manner decided by Donya and these additional or revised terms will become part of the EULA effective immediately. Please check Simplygon Cloud, EULA or the Website periodically for changes. Your continued use of Simplygon Cloud constitutes your binding acceptance of the EULA, including any changes or modifications made by Donya as permitted above.
34. WAIVER. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
35. SEVERABILITY. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions which shall continue in full force and effect.
36. ASSIGNMENT. You shall not, without the prior written consent of Donya, assign, transfer, charge, sub-contract, license or deal in any other manner with all or any of Your rights or obligations under this EULA. Donya may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this EULA without notice to you.
37. NO PARTNERSHIP. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Donya and you. Neither party hereto shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
38. CREDITS IN THE PRODUCTS. You shall use best efforts to include Donya’s logo in the opening section, include a credit in the end credits, Credits in PR materials etc. to Donya when you publish or demonstrate your Processed Content, games, entertainment products and services etc. that includes Processed Content, created or optimized with Simplygon Cloud, for example: "Uses Simplygon (TM), Copyright (c) - 2016 Donya Labs AB". Current versions of Donya’s logotype, credit terms etc. can be found at www.simplygon.com/company/media.
39. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between the parties with respect to this specific subject matter hereof and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement or Guidelines made by Donya as set forth in Section 34 above.
40. DISCLOSURES. The services hereunder are offered by Donya Labs AB, a Swedish corporation, with registered and business offices at Gjuterigatan 5, S-582 73 Linköping, Sweden, email: firstname.lastname@example.org.
Last Updated: October 25, 2016