This End-User License Agreement (“EULA”) is a legal agreement between you (either as an individual or on behalf of an entity) (“Licensee”) and Presence B.V., doing business as Superluminal (“Superluminal”) regarding your use of Superluminal’s software and applications, limited to Superluminal Performance and Superluminal Account Portal and any associated documentation (“Documentation”), upgrades, patches, updates, bug fixes, error corrections (“Updates”) and any related services offered to you by Superluminal (“Software”). This EULA will enter into force upon
Licensee’s acceptance of the EULA through superluminal.eu (“Website”), use, installation and/or download of the Software (the “Use”), whichever comes first (“Effective Date”).
BY USING, INSTALLING, DOWNLOADING OR COPYING THE SOFTWARE, LICENSEE ACKNOWLEDGES ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA. IF LICENSEE DOES NOT ACCEPT THE TERMS AND CONDITIONS IN THIS EULA, LICENSEE MAY NOT USE, INSTALL, DOWNLOAD OR COPY THE SOFTWARE.
1.1 License. Subject to the terms and conditions of this EULA and upon payment of any fees, in accordance with this Section 1 (License), Section 2 (Account Portal) and in accordance with the Documentation, Superluminal grants Licensee a non-transferable, non-exclusive, nonsublicensable, revokable right and license (“License”) to (a) unless specified otherwise by Superluminal or this EULA, Use the Software as described in the Documentation and in Section 1.8 (Use Limitation), and (b) copy the Software once solely as necessary for back-up purposes, unless specified otherwise by Superluminal. Maintenance will only take place on initiative of Superluminal.
1.2 Type of License. The License is provided to Licensee subject to specific terms and conditions that further define the scope of the License (“License Type”). The License Type is specified on the Website and, upon subscription or purchase, communicated to Licensee in writing by Superluminal. Licensee is responsible for selecting the correct and applicable License Type. The License Types are set out in this Section 1 (License). Licensee will not, and must not attempt, to Use the License outside of the scope of the applicable License Type and any other restrictions as set out in this Section 1 (License). Any actual or attempted Use of the Software outside of the scope of the License, is considered a breach of this EULA and an infringement of the rights of Superluminal as set out in this EULA.
1.3 Personal License. A personal license (“Personal License”) grants an individual (natural person), who is not acting as a legal entity, the License to Use the Software solely for personal Use. A Personal License is granted only for non-commercial purposes by Licensee. A Personal License is perpetual so that the Licensee may Use the Software for an indefinite period, unless and until terminated by Superluminal in accordance with this EULA. Licensee is entitled to Updates for the duration of twelve (12) consecutive calendar months following the Effective Date, or as of any other date as specified by Superluminal.
1.4 Business License. A business license (“Business License”) grants a legal entity the License to Use the Software for commercial purposes. Following the Effective Date, or any other date as specified by Superluminal, the Business License is granted for the duration of the term as specified on the Website or any other term as specified by Superluminal. Licensee is entitled to Updates for the duration of the Business License term.
1.5 Enterprise License. An enterprise license (“Enterprise License”) grants a legal entity the License to Use the Software for commercial purposes. Following the Effective Date, or any other date as specified by Superluminal, the Enterprise License is granted for the duration of the term as specified on the Website or any other term as specified by Superluminal. Licensee is entitled to Updates for the duration of the Enterprise License term. The Enterprise License will include certain features that are specified on the Website and/or in the Documentation.
1.6 Educational License. An educational license (“Educational License”) grants an academic individual, employed or a student at an academic institution, or an academic institution the License to Use the Software for educational or academic purposes. The Educational License prohibits for-profit, commercial purposes. Following the Effective Date, the Educational License is granted for the duration of the term as specified on the Website or any other term as specified by Superluminal. Licensee is entitled to Updates for the duration of the Educational License.
1.7 Trial License. A trial license (“Trial License”) grants an individual (natural person) or legal entity, the License to Use the Software for evaluation purposes for the duration of fourteen (14) calendar days, or any other duration as specified by Superluminal, following the Effective Date. Licensee may at any time during the trial term, decide to upgrade from a Trial License to any other License Type, subject to payment of the applicable fees, as set out in this EULA or as otherwise determined by Superluminal. Licensee is entitled to Updates for the duration of the Trial License.
1.8 Use Limitation. The License is restricted to a certain number of authorized users that may Use the Software as part of the applicable License Type and, if applicable, as specified by Superluminal on the Website or via email to the Licensee. Each authorized user is qualified as a single individual person, whose Use of the Licensed Software is managed in accordance with Section 2 (Account Portal) (“Seat”). Licensee will not breach this Section 1.8 (Use Limitation) by allowing one Seat to be shared by different individuals. Unless as otherwise specified by Superluminal, each Seat may be activated on three (3) separate computers or workstations.
1.9 Restrictions. Licensee shall not and shall not permit any third party to: (a) modify, adapt, create derivative works, translate, reverse engineer, disassemble, decode, decompile or otherwise attempt to access the source code, structure or proprietary algorithms of the Software, except as permitted by mandatory law and/or as described in the Documentation, (b) copy the Software, except as permitted under Section 1.1 (License), (c) lease, loan, rent, resell, make available, sublicense or distribute the Software to any third party, except as expressly permitted under this EULA, (d) allow a single Seat to be shared between two (2) or more individuals; (e) attempt to tamper with any restrictions or requirements that are implemented and designed to restrict the applicable scope of the License and the Seats ; or (f) modify or delete any copyright or proprietary notices or legends on or in the Software or Documentation.
1.10 Object Code. The License is limited to the object code. Rights to the source code are not provided, unless explicitly agreed upon otherwise in writing and / or unless the right of use concerns a reproduction that takes place in the context of loading, displaying or correcting errors.
1.11 Updates. Superluminal may from time-to-time release Updates to the Software, and the Software may automatically connect to third-party servers via the Internet to check for available Updates and may either: (a) automatically install an Update to the version of the Software; or (b) give Licensee the option of manually installing the Update. By installing the Software in accordance with the License and not disabling any automated checks for Updates, if applicable, Licensee consents to automatically request and receive Updates from Superluminal or third-party servers and agrees that this EULA will apply to all such Updates unless provided with separate terms, in which case those separate terms will solely or additionally apply. In case of a Personal License, Updates are provided during the first twelve (12) months following the Effective Date, unless otherwise specified by Superluminal. Superluminal encourages Licensee to download, install and use such Updates to maximize Licensee’s experience with the Software. If Licensee chooses to not install and use an available Update, Licensee may experience issues with delays, interruption, performance or security. If Updates are mandatory, Licensee is required to install such Updates within a time period as specified by Superluminal. If Licensee does not install the mandatory Updates within the specified time period, Licensee may lose access to certain Software. To the maximum extent permitted by applicable law, Superluminal will not be responsible for any liability that may arise due to Licensee’s failure to install and use an Update where use of such Update would avoid the liability.
1.12 Back-ups. Licensee will be fully responsible at all times for generating adequate back-ups. Under no circumstances will this be the responsibility of Superluminal. In no event will Superluminal be liable for the loss of data even if this is the result of an error in the Software.
- ACCOUNT PORTAL
2.1 Account. In accordance with the Documentation and/or as specified by Superluminal to Licensee, the Seat will be activated or deactivated by Licensee through a portal that can be accessed through the Internet (“Account Portal”). Licensee is responsible for creating an account (“Account”) and for activating the Seats through the Account in the Account Portal in a timely manner so that the Software may be Used in accordance with this EULA. At any time, Superluminal may provide additional instructions in regards to the Account, Account Portal and management of Seats. Licensee is obliged to follow such instructions.
2.2 Account Portal. In accordance with the Documentation and the Website, the Account Portal may serve the following purposes: management of billing information, Seats and activated machines.
2.3 Account Restriction. Unless permitted by the License or the Documentation, Licensee is not permitted to transfer the Account. Licensee must use the Account in accordance with the Documentation, Website and/or written instructions provided by Superluminal.
2.4 Activation and Deactivation of Seats. In accordance with Section 1.8 (Use Limitation), the License Type, and/or written specifications provided by Superluminal, Licensee will activate a certain amount of Seats through the Account Portal. Each separate Seat will only be activated for a single individual (natural) person. A Seat may be deactivated by Licensee for reasons that will not cause a breach of this EULA, and more specifically, Section 1 (License).
2.5 Login Information. Licensee may not disclose the password or login name (“Login Information”) to access the Account Portal to any third party. Licensee is solely responsible for maintaining the confidentiality of the Login Information and for any liability, damage, harm and/or loss resulting from the disclosure of the Login Information. In no event will Superluminal be liable for the misuse and/or unauthorized use of the Login Information.
2.6 Misuse. If there is a reasonable suspicion of misuse or unauthorized use of the Login Information, Superluminal can provide Licensee with instructions, which must be carried out. If it is determined that misuse has been made of the Login Information or if Licensee ignores instructions given as set out in Section 2.5 (Login Information), Licensee will be in breach of this EULA immediately.
3.1 Retention of title. Superluminal owns all rights, title, and interest in the Software, including but not limited to Superluminal Performance and Account Portal, Documentation and any Updates, and other corrections, enhancements, derivative works or other modifications thereto, including all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (“Superluminal Property”). This EULA does not transfer the rights, title and interest in the Superluminal Property to Licensee in any way.
3.2 Feedback. Licensee may elect to provide suggestions, comments, and other feedback to Superluminal about desired and/or potential product developments, feature or enhancement of the Software and/or Documentation (“Feedback”). Superluminal may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation or restriction based on any intellectual property rights or otherwise. In the event such Feedback is incorporated in any Superluminal materials, Documentation, Software or other Superluminal Property, Superluminal shall be the sole owner of any (intellectual property) rights associated therewith.
- FEES AND PAYMENT
4.1 Fees. Licensee shall pay the fees as specified by Superluminal either through the Website or in writing to Licensee (“Fees”) The Fees shall be due on or before the Effective Date and each anniversary thereof, (or any other date indicated by Superluminal) and all other Fees shall be payable within fourteen (14) days from the invoice sent as per Section 4.2 (Payment), unless otherwise stated by Superluminal. All Fees due for the number of Seats applicable to the Software set forth by Superluminal are payable even if the actual number of activated Seats is
4.2 Payment. Superluminal will send the invoices electronically to the contact person and contact information indicated and provided by Licensee. Licensee may change such information upon written notice to Superluminal. Licensee shall pay the Fees as instructed through the Account Portal. Except as otherwise expressly set forth in the EULA, all Fees are non-cancellable and non-refundable.
4.3 Price Index. As of the first anniversary of the relevant Effective Date, the Fees may be subject to a yearly increase equal to the lesser of (i) 4% or (ii) the percentage of the Netherlands Consumer Price Index on the period of twelve (12) months directly preceding the date of the increase. For information purposes only, Superluminal shall notify the Licensee in the relevant invoice.
- OPEN SOURCE SOFTWARE
5.1 Open Source. The Software may contain open source or similar third-party materials (“Superluminal OSS”) as specified in the Documentation and/or the text files accompanying the Software. The list of Superluminal OSS may be modified or revised at any time by Superluminal and such modification or revision shall be effective upon publishing the updated Documentation or by updating the text files, or by other reasonable means. Due to the open source (or similar) nature of the Superluminal OSS, its use is governed by separate terms and conditions and/or licenses of the applicable supplier (which may be identified in the Documentation or text files by Superluminal) and not this EULA. Licensee agrees to comply with all such Superluminal OSS licenses and/or terms and conditions and represents and warrants that prior to its use of the Superluminal OSS, it has accepted and agreed to the applicable third-party license for the Superluminal OSS.
5.2 ‘As Is’. Superluminal OSS is provided by Superluminal ‘as is’ and Superluminal hereby disclaims in respect of the Superluminal OSS, any warranties, conditions, or terms whether contractual or statutory, express or implied, including warranties of title, non-infringement, satisfactory quality or fitness for purpose.
- TERM AND TERMINATION
6.1 Term. This EULA shall commence on the Effective Date. In case of a Personal License, the EULA shall continue in force as of the Effective Date for an indefinite term, unless terminated under Section 6.2 (Termination). In case of the other License Types, the duration of the applicable terms is either specified on the Website or otherwise determined by Superluminal to Licensee in writing.
6.2 Termination. In case of a Personal License, the EULA may be terminated by either party upon written notice to the other party. Other License Types may be terminated by either party upon a written notice to the other party within sixty (60) days before the end of the applicable term, as determined in Section 6.1 (Term). In the event Licensee breaches the EULA or Superluminal is required to do so by law, Superluminal may terminate this EULA for cause, at any time upon a written notice of thirty (30) days to Licensee. For the avoidance of doubt, and without limitation, a failure to pay any Fees when due or any breach of Sections 1 (License), 2 (Account Portal), 3 (Title),4 (Fees and Payment) and 7 (Warranty Disclaimer) are considered a material breach for which no remedial notice is required.
6.3 Consequences of Termination. Upon termination (including expiry) of the EULA for any reason, the following applies: (a) the Licensee shall forthwith discontinue any Use of the Software, Documentation and any Superluminal Property and shall permanently return, destroy or delete any copies thereof and shall provide Superluminal with a written representation that it has complied with the foregoing obligations; (b) all payment obligations that have accrued prior to such termination or expiry shall survive and become payable; and (c) Sections 1 (Title), 8 (Liability), 10 (Miscellaneous) shall survive.
- WARRANTY DISCLAIMER
7.1 Limited Warranty. Superluminal warrants that for a period of sixty (60) days following the Effective Date, the Software shall substantially comply with the Documentation (“Warranty Period”).
7.2 Warranty Remedies. If Licensee informs Superluminal of a nonconformity with the warranty during the Warranty Period, Superluminal’s sole liability and Licensee’s sole remedy for any such warranty shall be (a) in Superluminal’s sole discretion: to repair any errors in the Software, or part thereof or to assist Licensee how to achieve substantially the same functionality of the Software as described in the Documentation; or (b) if the above remedies are technically or commercially unreasonable or do not lead to resolution, to refund the relevant Fees paid for the defective Software, in which case the License shall expire with respect to that Software.
7.3 Warranty Disclaimer. Notwithstanding Section 7.1 (Limited Warranty), the Software is provided on an ‘As Is’ basis as to its performance, accuracy, or completeness. Licensee shall Use the Software on its own risk. Superluminal disclaims any and all express and implied warranties, conditions or terms to the fullest extent permitted by law, including disclaiming any implied warranties, terms and conditions that the Software (i) is of satisfactory quality and will meet a specific purpose; (ii) is fully compatible with a computer machine, system and/or hardware; (iii) will operate uninterrupted, timely, secure or error-free in any way; (iv) may be used to provide results that are accurate or reliable; or (v) any errors in the Software will be corrected.
7.4 Licensee Warranty. Licensee warrants to Superluminal that it has the legal rights and authority to enter into and perform its obligations under this EULA. If Licensee acts on or behalf of a company or employer, Licensee warrants that it is authorized to enter into this EULA.
8.1 Limitation of Liability. Subject to Section 8.2 (Exemption of limitation of liability) below in no event shall: (a) Superluminal be liable under or in connection with this EULA whether in contract, tort (including negligence) or under statute for any: (i) loss of profits; (ii) loss of revenue; (iii) loss of goodwill; (iv) loss of Use; (v) loss of data; (vi) computer failure or malfunction or (vii) any indirect, consequential, special, exemplary or incidental damages of any kind, in each case however caused, even if Superluminal has been apprised of the likelihood of such damages, and (b)
Superluminal cumulative aggregate liability arising out or in connection with the EULA, whether in tort (including negligence), contract, indemnity or otherwise, exceed the amount of Fees received by Superluminal from Licensee pursuant to this EULA in the twelve (12) months prior to the date the cause of action arose.
8.2 Exemption of Limitation of Liability. Nothing in this EULA shall exclude or limit a party’s liability for gross negligence or wilful misconduct.
- PERSONAL DATA
9.3 Processing. Licensee acknowledges that the data processing as instructed to Superluminal is lawful. Licensee also acknowledges that it has ascertained that Superluminal offers appropriate technical and organizational measures as referred to in Article 28 paragraph 1 of the GDPR, which also includes security measures as referred to in Article 32 of the GDPR.
9.4 Indemnity. Licensee will indemnify Superluminal against any allegation as a result of a violation of any person’s privacy related to the foregoing.
- CODE OF CONDUCT
10.1 Reasonable Use. Licensee will make Use of the Software in a responsible manner. It is prohibited to Use the Software in a manner that will result in: (a) damage in the system of Superluminal and/or third parties; or (b) interference with its Use. Licensee will ensure that such damage and/or interference as describe herein, is not the result of misconfiguration on Licensee’s part.
10.2 Forbidden activities. It is not permitted to Use the Software for activities that are illegal and/or in violation of the EULA. The foregoing includes, amongst others, the following activities: (a) violation of third party’s rights or facilitating such violation, such as but not limited to intellectual property rights and privacy rights; (b) non compliance to law and other applicable regulations; (c) spanning of advertisement and/or other messages; (d) storage/distribution of (child)
pornography; (e) causing danger to the functioning of the computer systems or the network of Superluminal or third parties through the network, in particular caused by excessive sending of email or other data, badly secured systems or activity of viruses, Trojans or similar software; (f) sexual intimidation, racial prejudice and/or the harassment of individuals in any other manner; (g) distribution or making available to third parties in any other manner of obscene, insulting and tormenting material and/or other material of similar nature; (h) threats; (i) storage and distribution of viruses, worms and/or other destructive activities; (j) unauthorized access (hacking) of accounts, systems and/or networks of third parties and/or Superluminal and/or the performance or non-performance of any other act that makes hacking possible.
10.3 Access. Superluminal reserves the right, at Superluminal’s sole discretion, if forced by law or a court order; and/or a third party informs Superluminal and/or a suspicion exists that through Software a violation is made of the rights of a third party; there is a breach of the obligations in this EULA, to bar access to Software, to remove the information in question and/or suspend its other obligations until Licensee meets its obligations.
11.1 Governing Law and Jurisdiction. This EULA is governed by, construed and interpreted in accordance with the laws of the Netherlands. Both parties hereby consent to the exclusive jurisdiction and venue of the District Court of Rotterdam, the Netherlands. In each case the EULA shall be construed and enforced without regard to the United Conventions on Contracts for International Sale of Goods.
11.2 Name Licensee. If the business name used by Licensee denotes more than one (legal) person or organization, each will be responsible for the entire fulfilment of the obligations that may flow forth from the EULA with Superluminal.
11.3 Non-Assignment. Licensee may not assign, transfer, or novate this EULA, nor the rights and license granted herein, in whole or in part and without the Superluminal’s express written consent and any such attempt will be void. Superluminal may (a) assign or novate this EULA in whole or in part to an affiliate, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Software to third parties, provided that such subcontract does not relieve Superluminal of any to its obligations under this EULA.
11.4 Severability. If at any time any part of this EULA is held to be or becomes void or otherwise unenforceable for any reason under law, the validity, legality and/or enforceability of the remaining provisions of this EULA shall not in any way be affected or impaired as a result of that omission and the provision in question shall apply with the minimum modifications necessary to make it valid and enforceable.
11.5 Notices. Any notices required or permitted under the EULA or required by law will be in writing and in the Dutch or English language, and be delivered in person, or sent by registered email or courier, or email, to the contact person indicated by either party to the other party. Irrespective of the foregoing, any notice to Superluminal should always be sent with a copy to: firstname.lastname@example.org.
11.6 Entire Agreement. This EULA sets forth the entire agreement and supersedes any and all prior agreements between the parties with respect to the subject matter hereof. No change, modification of any provision of the EULA shall be valid, unless set forth in a written document executed between both parties. This EULA may be executed with electronic or electronically scanned signatures.