End User Licence Agreement
References in this end user licence agreement (hereinafter “the Agreement”) to:
- “LumApps” shall mean LumApps SAS, located 75 Avenue François Mermet, 69160 Tassin-la-Demi-Lune, Lyon, France;
- “Reseller” shall mean an authorised reseller of LumApps;
- “Customer” shall mean the corporate entity which has purchased a subscription to access and use the Application;
- “Application” shall mean the online software application for which the Customer has purchased a subscription, as identified in the Customer’s agreement with the Reseller, 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).
- The Authorised User’s right to use the Application shall only become effective once the Customer’s request to use the Application (submitted via the Reseller) has been accepted by LumApps and access has been granted by LumApps to the Application.
1. Definitions and Interpretation
In this Agreement, the following words have the following meanings:
- Authorised Users: the employees, agents, independent contractors and other personnel and suppliers of the Customer or its Permitted Affiliates who are authorised to use the Application;
- Customer Data: the data or materials inputted from time to time by the Customer, Authorised Users and/or LumApps on the Customer’s behalf for the purpose of using the Application or facilitating the Customer’s use of the Application;
- Documentation: 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;
- G Suite: software applications made available by Google to end users, which are interoperable with the Application from time to time, which may include Google Drive, Gmail and/or Google Docs;
- Intellectual Property: 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 related to the Application;
- Parties: LumApps and the Authorised User.
- Permitted Affiliates: affiliates of the Customer who have been authorised in the Reseller Customer Agreement to access and use the Application and Documentation under and in accordance with the terms of this Agreement;
- Reseller Customer Agreement: the agreement concluded between the Customer and the Reseller under which the Customer has purchased a subscription to access and use the Application;
- Services: the services provided by LumApps to the Authorised User, during the Term, subject to the terms and conditions of this Agreement, including: (a) granting the non-exclusive, non-transferable, non-sublicensable right and licence for the Authorised Users to access and use the Application and Documentation solely for the Customer’s internal business purposes; and (b) providing the support services via the Super Administrators.
- Super Administrators: the Authorised Users who have special permissions to use restricted functionality of the Application and who are responsible for administering and managing the Application on behalf of the Customer;
- Term: the term of the Customer’s subscription to access and use the Application, as granted under to the Customer under the Reseller Customer Agreement;
- Third Party Software: any software proprietary to a third party which is integrated or which interfaces with the Application, including G Suite;
- Virus: any malware program 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. Headings used in this Agreement shall not affect the interpretation of this Agreement. Words imparting the singular shall include the plural and vice versa. References to persons include an individual, company, corporation, firm or partnership. The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
2. Access to Application
- LumApps grants to the Authorised User, during the Term only, and subject to compliance with this Agreement, a non-exclusive, non-transferable, non-sub-licensable right and licence to access and use the Application and Documentation solely within the framework of his professional activity.
- The Authorised User shall ensure to keep a secure password for its use of the Application and keeps such password confidential.
- The Authorised User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Application and, in the event of any such unauthorised access or use, shall promptly notify LumApps and shall give LumApps all assistance that it reasonably requires to prevent such unauthorised access.
- The Authorised User acknowledges that the Application is likely to evolve and that as such, the Services could be adapted accordingly. Any deletion or modification of the Services will be notified to the Authorised User by email.
3. Authorised User’s obligations
- The Authorised User shall:
- comply with all applicable laws and regulations with respect to its use of the Application;
- use the Application in accordance with this Agreement;
- obtain and maintain all necessary licences, consents and permissions necessary for LumApps, its contractors and agents to perform their obligations under this Agreement or the ones necessary to use any Third Party Software;
- ensure that it has all necessary internet and network communications, computer equipment and a suitable web browser required in order to access and use the Application and complies with all other technical requirements notified to it from time to time.
- declare complete and accurate information when registering, and update them in case of change.
- The Authorised User shall not:
- Use the Application in any way that breaches any applicable local, national or international law, regulation or code of practice, or is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect, or infringes any Intellectual Property right from LumApps or any Third Party or right to privacy;
- use the Application to send, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation to any person;
- use its passwords and/or logins for purposes other than their strict authentication purpose. In this regard, the Authorised User must not, without this list being exhaustive, communicate, diffuse, share, make accessible, in any way, its identification elements to third parties,
- impersonate or attempt to connect to another account than its own,
- access, store, distribute or transmit any Viruses, or any other material that:
- is deemed to be unlawful, harmful, threatening, defamatory, obscene, infringing, abusive, harassing or racially or ethnically offensive or discriminatory;
- may facilitate or promote illegal activity; or
- may cause damage or injury to any person or property;
- attempt to access without authority, interfere with, damage or disrupt any part of the Application or LumApps’ IT systems;
- except as expressly permitted by this Agreement and as may be allowed by any applicable law which cannot be excluded, attempt to reverse compile, 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;
- access all or any part of the Application in order to build a product or service which competes with the Application; or
- license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise commercially exploit, or otherwise make the Application available to any third party except the Authorised Users,
- and LumApps reserves the right, without liability, to suspend or terminate access to the Application in the event of a Virus being transmitted or other material security threat relating to the Application occurring, or in the event that the Customer’s or any of the Authorised User’s use of the Application is in breach of this clause 3.2.
- The Authorised User is solely responsible for the content it publishes on the Application, including its identification elements. The Authorised User guarantees that its content respects public order and morality, does not infringe the rights of third parties, especially regarding intellectual property, privacy, reputation and image of third parties, does not contain any comments denigrating, defamatory or discriminating against LumApps and other Authorised Users and that it complies with the relevant regulations.
- LumApps reserves the right to review the Authorised User’s use of the Application at any time to assess the Authorised User’s compliance with clause 3.2. Should such review reveal any breach by the Authorised User of clause 3.2, LumApps may, with immediate effect, suspend or terminate access to the Application according to article 8.2.
4. Customer Data
- The Authorised User shall own all rights in the Customer Data and shall have sole responsibility for the legality, reliability, integrity and accuracy of the Customer Data. LumApps shall have no responsibility or liability for the legality, reliability, integrity or accuracy of the Customer Data.
- 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.
- The Authorised 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, 2017, as modified by the Law dated October 7th, 2017. This information is strictly confidential and is for the sole use of LumApps.
- The Authorised 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 firstname.lastname@example.org. The Authorised 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.
5. Third party services
- The Authorised User acknowledges that the Services 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 it does so solely at its own risk. It is the Authorised User’s responsibility to obtain and maintain at all times during the Term the relevant rights and licences to use the Third Party Software.
- LumApps makes no representations or commitments and shall have no liability or obligation whatsoever in relation to any such third party services or content, or for any transactions completed by the Authorised User with any such third party or for any Third Party Software which is integrated, or which interfaces, with, or which can be accessed via, the Application.
- LumApps shall have no responsibility for hosting any Third Party Software and shall have no liability for any unavailability of or faults in any Third Party Software.
6. Intellectual Property
- The Application (and any modifications to it) and Documentation and all Intellectual Property Rights are, and shall remain, the exclusive property of LumApps and its licensors. Those works are protected by copyright laws and treaties around the world. Except the right to use the Application granted in accordance with article 2.1 of the Agreement, the Authorised User shall not have any rights to or in any such Intellectual Property Rights, or any other rights whatsoever in respect of the Application.
- 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.
- LumApps does not guarantee the continuity and quality of the communication links with the Authorised 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.
- 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 Authorised User.
- 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
- This Agreement shall commence on the date on which the Authorised User is granted access to the Application by LumApps and shall, unless terminated earlier in accordance with its terms, continue for the Term.
- As an exception to the foregoing, each of the Parties may terminate this Agreement in case of failure of the other Party to fulfil one of its obligations, by way of written notice of termination showing its intention to enforce the hereby clause, provided that the defaulting Party fails to remedy the breach within a period of 15 business days from the written notice thereof. This termination will take effect immediately if the breach cannot be remedied. In case of termination attributable to the Authorised User, the latter will be informed of the termination of its user account by email.
- In particular, shall be considered as commitments the non-performance of which may result in the termination of the Agreement, the obligations of the Authorised User detailed in Article 3, the obligation to respect intellectual property rights and the obligation of confidentiality.
- On expiry or termination of this Agreement and/or the Reseller Customer Agreement for any reason:
- the licence and rights granted to the Authorised User under this Agreement shall immediately terminate and LumApps shall with immediate effect terminate the Authorised User ‘s access to and use of the Application;
- each Party shall return and make no further use of any property, Documentation and other items (and all copies) belonging to the other Party;
- the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
9. Force majeure
- LumApps shall have no liability to the Authorised User if it is prevented from or delayed in performing its obligations under this Agreement 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.
10. Change in Law
- If required as a result of any changes to any applicable laws relevant to the Services, LumApps may by giving 30 days’ notice to the Authorised User amend any provision of this Agreement.
- A waiver of any right under this Agreement 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 this Agreement are cumulative and do not exclude rights provided by law.
- If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall 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 shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
- Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
- This Agreement, and any documents referred to in this Agreement, constitute the whole agreement between the Parties and supersede, replace and extinguish any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person to the subject matter of this Agreement, other than as expressly set out in this Agreement.
- The Authorised User shall not, without the prior written consent of LumApps, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. LumApps 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 Agreement.
- Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by recorded delivery post or commercial courier to the other Party at its address set out in this Agreement, or such other address designated by that Party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered. A notice sent by recorded delivery post or commercial courier shall be deemed to have been received at the time of delivery recorded by the delivery service.
- This clause 12 shall not apply to the service of any proceedings or other documents in any legal action.
13. 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 Terms.