End User License Agreement

BACKGROUND

This End User License Agreement (“EULA”) governs the access and use of the application developed by LumApps (hereinafter, the Application) by an authorized users who shall be in accordance with these conditions.

By using the Application and the Services, the authorized user acknowledges that he had read, understood and agreed to be bound and abide by the EULA and all policies and guidelines incorporated by reference, as they may be amended by LumApps in its sole and absolute discretion. It is Authorized User’s responsibility to review these conditions periodically, and if at any time he finds the conditions unacceptable, the Authorized User must immediately cease all use of the Application and/or Services.

The authorized user confirms that he is a person who is at least eighteen (18) years old. He has full legal capacity to conclude these terms of use and become a user of the Application.

If the license to use the Application had been purchased through a LumApps reseller, the authorized user agrees to comply with the terms of any agreement between LumApps and such reseller. In the event of an inconsistency between the EULA and any such reseller agreements, the EULA shall control.

The authorized user’s right to use a service will only become effective once the request to use the Application and access has been granted by LumApps to the Application.

OPERATIVE PROVISIONS

 

  1. Definitions and Interpretation

    In this Agreement, the following words have the following meanings:

     

    “Application” means the online software application for which a Subscription has been purchased and as such application is set out further on the ‘Product’ page at www.LumApps.com (as may be updated by LumApps from time to time).

    “Authorized User” means the persons who have a right of access and use of the Application

    “Data” means the data or materials entered into the Application from time to time by the Authorized Users for the purpose of using the Application or facilitating the use of the Application.

    “Documentation” means the operating manuals, user and technical documentation and/or other related materials (in any form) relating to the Application made available by LumApps from time to time.

    “Intellectual Property” means copyright, rights in software, trademarks, design rights, patents, know-how, confidential information, rights in inventions, processes and formulae, and all and any other intellectual property rights subsisting anywhere in the world, including all applications for the same.

    “LumApps” means LumApps, SAS. a French Société par Actions Simplifiée, with a share capital 506 667 Euros, having its Registered Office at 75 rue François Mermet 69160 TASSIN LA DEMI LUNE, who created the Application and who owns the entire intellectual property and for which a Subscription Fee had been paid.

    “Services” means the services provided by LumApps to the Authorized User, during the Term and according to the terms of the EULA, namely access to and use of the Application and Documentation only for a professional use.

    “Subscription ”: means the annual subscription to benefit from the Services, to access and use the Application for the number of Authorized Users indicated to LumApps;

    “Term” means term of the Subscription to access and use the Application for the Authorized User.

    “Third Party Software” means any software proprietary to a third party which is integrated or interfaces with the Application.

    “Virus” means anything or device which may prevent, impair or otherwise adversely affect the operation of any computer program, software, hardware or network, or the access to or operation of any program or data, including the reliability of any program or data, or adversely affect the user experience, including worms, Trojan horses and viruses.

     

  2. Access to Application
    1. LumApps grants to the Authorized User, for the Term and subject to the respect of the present conditions, a non-exclusive, non-transferable license and without right of sub-license, granting him the access to and the use of the Application and of the Documentation in the context exclusively of his professional activity.

       

    2. The Authorized User keeps a secure, unique password for its use of the Services and keeps the password confidential.

       

    3. The Authorized User will use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and, if any such unauthorized access or use occurs, will promptly notify LumApps and give LumApps all assistance it reasonably requires preventing such unauthorized access.

       

    4. LumApps may update the Application from time to time for the purposes of error correction, enhancement to functionality or otherwise from time to time in its discretion.

       

    5. Any deletion or modification of Services offered on the Application will be notified to the Customer by email.

       

       

  3. Authorized User’s Obligations
    1. The Authorized User:
          1. comply with all laws and regulations pertaining to its activities under this EULA;
          2. use the Services and Application only in accordance with these conditions;
          3. obtain and maintain all necessary licenses, consents and permissions for LumApps, its contractors and agents to perform their obligations to use any Third-Party Software; and
          4. obtain and maintain internet and network communications, computer equipment and a suitable web browser required to access and use the Application and complies with all other technical requirements notified to it from time to time.

             

    2. The Authorized User will not to:
          1. use the Services or the Application in any way that
            1. breaches any local, national or international law, regulation or code of practice
            2. is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; or
            3. infringes any Intellectual Property right or right to privacy of any third party;
          2. use the Services or the Application to send, or arrange for sending, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation to any person;
          3. access, store, distribute or transmit any Viruses, or any material during its use of the Services or Application that:
            1. is unlawful, harmful, threatening, defamatory, obscene, infringing, abusive, harassing or racially or ethnically offensive or discriminatory;
            2. facilitates or promotes illegal activity; or
            3. causes damage or injury to any person or property;
              1.  
          4. attack the Application via a denial-of-service attack, distributed denial-of-service attack or other method;
          5. attempt to access without authority, interfere with, damage or disrupt any part of the Application or LumApps’ IT systems;
          6. except as permitted by this Agreement or as required by law, attempt to decompile, disassemble or reverse engineer any part of the Application, or copy, modify, create derivative works from, transmit, or distribute all or any part of the Application and/or Documentation in any form or media;
          7. access all or any part of the Services or Application to build a product or service which competes with the Services or Application; or
          8. license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise commercially exploit, or otherwise make the Services or the Application available to any third party except the Authorized Users.
          9.  
          10.  
    3. The Authorized User is solely responsible for the content that it publishes on the Application, in particular its identification elements. He guarantees that its content respects public order and morality, does not infringe the rights of third parties, particularly with regard to intellectual property, privacy, reputation and image of third parties, does not contain there is no denigrating, defamatory or discriminatory statement about LumApps or other Authorized Users and that it complies with applicable regulations.

       

    4. LumApps reserves the right to evaluate the use of the Application made by the Authorized User at any time to verify that it operates in compliance with clause 3.2. In the event that this evaluation reveals any breach of clause 3.2 by the Authorized User, LumApps may immediately suspend or terminate the access rights to the Application, in accordance with article 8.2 below.LumApps, without liability, may suspend and/or terminate any Authorized User’s access to the Services and/or the Application if any Authorized User breaches this Section 3.  LumApps, as soon as practicable, will notify the Authorized User of the reason for the suspension or termination.Authorized User is always fully responsible and liable for all acts and omissions and he agrees to indemnify LumApps for all claims and losses related to any such acts and/or omissions.

       

  4. Authorized User Data
    1. The Authorized User shall own all rights in his Data and shall have sole responsibility for the legality, reliability, integrity and accuracy of the Data. LumApps shall have no responsibility or liability for the legality, reliability, integrity or accuracy of this Data.

       

    2. LumApps will back up Data held on the Application at such intervals as LumApps deems appropriate.
      LumApps shall have no liability in respect of, or any responsibility to back up, any data or information (including Customer Data) inputted to or held on any Third-Party Software (whether or not via or accessed through the Application) from time to time.

       

    3. The Authorized User approves and acknowledges that by accessing the Application, LumApps may store, process and use its data for performing the Services, in accordance with provisions of the French Law “Informatique et Libertés” of January 6th, 1978. This information is strictly confidential and is for the sole use of LumApps.

      The Authorized User is informed that his data will be likely to be processed outside the European Union, and in particular in the United States. However, in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data “(hereinafter” the ” Regulation “), Lumapps guarantees the same level of security and confidentiality as the Data processed in the European Economic Area.The Authorized User is responsible for processing within the meaning of Article 28 of the Regulations, being its subcontractor in charge of implementing the Service that is the subject of this EULA.As data processor, LumApps is required to process personal data on behalf of the  Authorized User and in compliance with his documented instructions.The Authorized User is entitled, in accordance with national and European regulations, to an access right, rectification right, a right to erase its personal data, right to restriction of processing, right to object and right to data portability. It can exercise its rights in contacting: privacy@lumapps.com.The Authorized User also has a right to lodge a complaint with a supervisory authority. Finally, it has the right to define guidelines as regards what happens to its personal data after death.

       

    4. LumApps highest priority is maintaining the confidentiality, integrity and security of Authorized Users’ personal information. A complete statement of LumApps’s current privacy policy can be found on the LumApps‘s web site. LumApps’s Privacy Policy is expressly incorporated into these conditions by reference.

       

  5. Third Party Services
    1. The  Authorized User acknowledges that the Application may enable or assist it to access the services or website content of third parties via third party websites or Third-Party Software (including G Suite), and that the  Authorized User accesses such services and content solely at its own risk. It is the Authorized User ’s responsibility to obtain and maintain during the Term the relevant rights and licenses to use the Third-Party Software.

       

    2. LumApps makes no representations or commitments and will have no liability or obligation in relation to any such third-party services or content, or for any transactions completed by the Customer with any such third party or for any Third Party Software integrated, or which interfaces, with, or which can be accessed via, the Application.

       

    3. LumApps will have no responsibility for hosting any Third-Party Software and will have no liability for any unavailability of or faults in any Third-Party Software.

       

  6. Intellectual Property
    1. The Application and Documentation (and any modifications and updates to the Application and Documentation) and all Intellectual Property rights are, and will remain, the exclusive property of LumApps. Those works are protected by copyright laws and treaties around the world. Except as expressly stated herein, the EULA do not grant the  Authorized User any rights to or in any such Intellectual Property rights, or any other rights regarding the Application and/or Services.

       

    2. The Authorized User agrees to indemnify, defend, and hold harmless LumApps, officers, directors, shareholders, employees, agents, successors, assigns, from any and all third party actions, claims, demands, loses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise, arising directly or indirectly out of or relating to this EULA or the infringement of any intellectual property right or other right of any person or entity.
    3.  
  7. Liability
    1. LumApps shall ensure the availability and continuity of the Application. However, LumApps shall not in any way be held responsible for any malfunction of the Application due to maintenance, technical problems, network congestion or failure of any other remote transmission system, which could prevent the application from functioning.

       

    2. LumApps does not guarantee the continuity and quality of the communication links with the Authorized User. Thus, access to the Application may be interrupted without notice for a reasonable period of time, in particular for maintenance reasons or for any other reason than a fault of LumApps.

       

    3. LumApps shall not be held liable in the event of a bad execution of the Services caused by incorrect information or information that would have not been updated by the Authorized User.

       

    4. In case LumApps’ liability would be engaged in any way, in particular because of a malfunction of the Application, LumApps may defeat such action, in its sole discretion, by correcting the defect or updating the Application.

       

  8. Term and Termination
    1. Term. These conditions will commence on the date on which the Authorized User is granted access to the Application by LumApps and will, unless terminated earlier in accordance with the EULA are valid for the entire duration of the use of the Application by the Authorized User

       

    2. Termination. LumApps may suspend or terminate without liability the access to the Application and the Service if LumApps reasonably determines that the Authorized User do not respect its obligations detailed in Article 4 and the obligation to respect intellectual property rights

       

    3. Effect of Termination. Upon expiration or termination of these conditions:
      1. the license and rights granted to the Customer under this EULA will cease immediately and LumApps will immediately remove the access and rights to use the Application by the Customer;
      2. the Authorized User shall cease to use the Application and shall return Documentation and other items (and any copies thereof) owned by LumApps.

         

  9. Change in Law
    If required because of any changes to any laws relevant to the Services, LumApps on thirty (30) days’ notice to the Customer may amend any provision of these conditions.

     

  10. General
    1. Waiver. A waiver of any right under the EULA is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the EULA are cumulative and do not exclude rights provided by law

       

    2. Severability. If any provision (or part of a provision) of the EULA is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

       

    3. Force Majeure. LumApps will have no liability to the Authorized USer if it is prevented from or delayed in performing its obligations under these conditions by acts, events or omissions beyond its reasonable control, including strikes or other industrial disputes, failure of a utility service or transport network, any failure or interruption of any telecommunications network, distributed denial-of-service attacks or any other malicious attacks, act of God, war, riot, malicious damage, compliance with any law, order, rule or regulation, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. LumApps will notify the Authorized User of such an event and its expected duration.

       

    4. Cumulative Remedies. Except as expressly stated in these conditions, the rights and remedies provided under the EULA are in addition to and not exclusive of each other and any rights or remedies provided by applicable law.

       

    5. Notices. Any notice required to be given under the EULA shall be in writing, by email and shall be delivered by hand or sent by recorded delivery post.This clause 11 shall not apply to the service of any proceedings or other documents in any legal action.

      6. Availability. LumApps shall use reasonable endeavors to make the live production version of the Application available 99.9% of the time in each month

       

  11. Governing Law and Jurisdiction.
    This Agreement and any disputes or claims arising out of or in connection with it (including non-contractual disputes or claims) are governed by the law of France and the competent courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these conditions.