IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USE OF THE SOFTWARE
This End-User License Agreement (the "Agreement") is a legal contract between the Licensee (the "Licensee"�) (either an individual or a single entity) and LUMO INTERACTIVE Inc. ("Lumo") for the Lumo Play software that may include associated software components, pre-designed and custom-designed games and effects (the "Games"), media, printed materials, and online or downloadable electronic files and documents (collectively the "Software").
LUMO PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SELECTING 'ACCEPT' THE LICENSEE:
A. ACCEPTS THIS AGREEMENT AND AGREES THAT THE LICENSEE IS LEGALLY BOUND BY ITS TERMS, AND B. REPRESENTS AND WARRANTS THAT:
I. THE LICENSEE IS 18 YEARS OF AGE OR OLDER AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND
II. THE LICENSEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT.
IF THE LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LUMO WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO THE LICENSEE AND THE LICENSEE MUST NOT/INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR THE LICENSEE OR THE LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT THE LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LUMO'S SOFTWARE.
For purposes of this Agreement, the following terms have the following meanings:
A. "Documentation" means user manuals, technical manuals and any other materials provided by Lumo, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
B. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
C. "Licensee" has the meaning set forth in the preamble.
D. "License Fees" means the license fees, including all taxes thereon, paid or required to be paid by the Licensee for the license granted under this Agreement.
E. "Software" means the software programs for which the Licensee is purchasing a license.
F. "Third Party" means any Person other than the Licensee or Lumo.
2. License Grant and Scope.
A. Subject to and conditional on the Licensee's payment of the License Fees and the Licensee's strict compliance with all terms and conditions set forth in this Agreement, Lumo hereby grants to the Licensee a non-exclusive, non-transferable, non-sublicensable limited license during the Term to install and use copies of the Software on the Licensee's computer running a validly licensed copy of the operating system for which the Software was designed [e.g., Windows XP/7/8, Mac OSX, etc.], solely as set forth in this Section 2 and subject to all conditions and restrictions set forth in Section 3 or elsewhere in this Agreement.
B. This license grants to the Licensee the right to:
I. make one copy of the Software for backup and archival purposes provided that the Licensee shall not, and shall not allow any other person to, install or use any such copy. All copies of the Software made by the Licensee:
a. will be the exclusive property of Lumo;
b. will be subject to the terms and conditions of this Agreement; and
c. must include all trade-mark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
II. install in accordance with the Documentation:
a. a maximum of 2 Home Lumo Play licenses per regular user account;
b. a maximum of 25 Pro licenses per regular user account. Lumo resellers with accounts in good standing are limited to 50 Pro licenses per account unless written permission is granted for additional licenses.
III. purchase through the Lumo websites pre-designed Lumo Play or Lumo Games, or Games that are custom-designed by Lumo or Games that are created using the online Motion Maker Template design tools, for use in association with the Software.
a. Games purchased by the Licensee cannot be transferred to or used with another user's license.
b. Lumo will hold the Licensee liable for any breach of this agreement by a third party with access to the Licensee's account for which this agreement has been made, regardless of whether the original account holder is aware of the breach. It is highly recommended that the Licensee does not share the Licensee's password with any other user.
c. When using LumoPlay with a Kinect for Windows v2 sensor, Microsoft may collect telemetry data (e.g., operating system, number of processors, graphic chipset, memory, device type, locale, time) in order to improve Microsoft products and services. The data will not be used to identify specific individuals.
3. Use Restrictions.
A. Sub-License. Lumo does not give the Licensee the right to sub-license or otherwise grant any rights to third parties with respect to the Software.
B. Support Services. Lumo may provide the Licensee with support services related to the Software ("Support Services"). Any supplemental software code provided to the Licensee as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement.
C. Distribution - Non-Reseller Account. Lumo does not give the Licensee the right to distribute copies of the Software to third parties. However, resellers with accounts in good standing are permitted to package and resell Lumo Play Software when included as turnkey hardware and/or installation services to third parties.
D. Additional Restrictions. The Licensee shall not, and shall require its Licensees not to, directly or indirectly:
I. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
II. provide any other person, including any subcontractor, independent contractor, affiliate, or service provider of the Licensee, with access to or use of the Software or Documentation;
III. modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
IV. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
V. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
VI. remove, delete, alter or obscure any trade-marks or any copyright, trade-mark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
VII. except as expressly set forth in Section copy the Software or Documentation, in whole or in part;
VIII. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any third party without the written permission of Lumo Interactive, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud or other technology or service;
IX. use the Software or Documentation in violation of any law, regulation or rule; or
X. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Lumo's commercial disadvantage.
A. Without prejudice to any other rights it may have, Lumo shall immediately terminate this Agreement if the Licensee fails to comply with the terms and conditions herein. In such event, the Licensee shall destroy all copies of the Software in the Licensee's possession, and Lumo may suspend or deactivate the Licensee's use of the Software without notice.
B. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and the Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect the Licensee's obligation to pay all fees due under this Agreement that may have become due before such expiration or termination, or entitle the Licensee to any refund.
5. Proprietary Rights.
A. Intellectual Property.
a. The Licensee shall not remove or alter any copyright or trade-mark notices on any and all copies of the Software.
b. All titles, including but not limited to copyrights and trade-marks, in and to the Software (including without limitation, any images, photographs, animations, video, audio, music, logos, content, and text incorporated into the Software), the accompanying media and printed materials, and any copies thereof are owned by Lumo and are protected by applicable copyright and other intellectual property laws and international treaties. All rights not expressly granted herein are reserved by Lumo.
II. Games - Pre-Designed Games
a. The Licensee shall not remove or alter any copyright and trade-mark notices on any and all copies of the pre-designed Games.
b. All title, including but not limited to copyrights and trade-marks, in and to the pre-designed Games (including without limitation, any images, photographs, animations, video, audio, music, logos, content and text incorporated into the pre-designed Games), the accompanying media and printed materials, and any copies thereof are owned by Lumo and are protected by applicable copyright and other intellectual property laws and international treaties. All rights not expressly granted are reserved by Lumo.
III. Custom-Designed Games
a. The Licensee shall not remove or alter any copyright and trade-mark notices on any and all copies of the custom-designed Games.
b. All titles, including but not limited to copyrights and trade-marks, in and to the custom-designed Games (including without limitation, any non-user provided images, photographs, animations, video, audio, music, logos, content, and text incorporated into the pre-designed Games), the accompanying media and printed materials, and any copies thereof are owned by Lumo Play and are protected by applicable copyright and other intellectual property laws and international treaties. All rights not expressly granted are reserved by Lumo.
c. All trade-marks and copyrights to content provided by a user to Lumo for the purpose of creating a custom-designed Game shall remain the sole property of that user.
6. Disclaimer Of Warranty.
A. LUMO EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Lumo DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THE LICENSEE MAY OBTAIN BY USING THE SOFTWARE.
B. LUMO DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED IN THE SOFTWARE.
C. LUMO MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM.
D. LUMO FURTHER MAKES NO WARRANTY OR REPRESENTATION TO AUTHORIZED USERS OR TO ANY THIRD PARTY. THE USER MUST ASSUME THE ENTIRE RISK OF USING THE SOFTWARE.
7. Disclaimer Of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW UNDER NO CIRCUMSTANCES SHALL LUMO BE LIABLE FOR:
A. ANY DAMAGES WITH RESPECT TO THE CONTENT OF THE SOFTWARE OR ANY PART THEREOF (INCLUDING, BUT NOT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, LIBEL, LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION, PERSONAL INJURY, DEATH, THE DISCLOSURE OF CONFIDENTIAL INFORMATION, OR INFRINGEMENTS OF RIGHTS OF PUBLICITY, PRIVACY, COPYRIGHT, MORAL RIGHTS AND TRADE-MARK RIGHTS) ARISING OUT OF AN AUTHORIZED USER'S USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LUMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LOSS OF DATA OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFIT), OR OTHER DAMAGES BASED IN CONTRACT, TORT OR OTHERWISE.
I. USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE;
II. LOST REVENUES OR PROFITS;
III. DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL;
IV. LOSS OR CORRUPTION OF DATA;
V. LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN;
VI. FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION;
VII. FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION
VIII. SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION;
IX. BREACHES IN SYSTEM SECURITY; OR
X. ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES,
IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE Lumo WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF Lumo AND ITS AFFILIATES, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LUMO UNDER THIS AGREEMENT FOR THE SOFTWARE.
THE LICENSEE THEREFORE AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS LUMO, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY CLAIM, LOSS, DAMAGE, OR EXPENSE (INCLUDING COURT COSTS AND LEGAL FEES) ARISING OUT OF, OR RELATING TO ANY THIRD-PARTY CLAIM THAT MAY ARISE FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS RESULTING FROM A CUSTOM-DESIGNED GAME OR EFFECT.
I. This Agreement is governed by and construed in accordance with the laws of the Province of Manitoba and the federal laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts of the Province of Manitoba, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other documents by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
II. Lumo will not be responsible or liable to the Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or the Licensee's equipment, loss and destruction of property or any other circumstances or causes beyond Lumo's reasonable control.
III. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section).
IV. This Agreement together constitutes the sole and entire agreement between the Licensee and Lumo with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
V. The Licensee may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Lumo's prior written consent, which consent Lumo may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this Section is void. Lumo may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without the Licensee's consent. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns.
VI. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
VII. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
VIII. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
IX. For purposes of this Agreement, (i) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole.
X. Unless the context otherwise requires, references herein: (i) to Sections refer to the Sections of this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other documents as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
XI. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.
XII. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.