End User License Agreement (EULA)
(Effective date: October 9th, 2019)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK THE “AGREE” OPTION; BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT; IF YOU DO NOT AGREE, DO NOT USE THE SERVICES.
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Mann + Hummel:
1.1 Subject to the terms and conditions of this EULA and your payment of any required fees (if applicable), MN hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access the Services, and otherwise use the Services to the extent permitted by its intended functionality and not for the sublicense to or use by third parties. You may only access and/or use the Services through the Streametric application or intended methods that MN or our licensed partners make available to you. Any access or use of our Services through an application, service, or method provided by a party other than MN or one of our authorized partners is strictly prohibited, outside the scope of the license granted herein, and may subject your account to termination and other legal action. Any other use not authorized herein, or by MN in writing, is strictly prohibited and a violation of this EULA. MN may revoke and/or terminate the foregoing license with respect to any aspect of the Services at any time, for any or no reason.
1.2 The Services are only available in certain selected locations. We may restrict access to the Services from other locations.
1.3 All features, content, specifications, devices, accessories and prices of devices, accessories, and services which are currently part of the Services and/or which are currently described on the Streametric Website are subject to change at any time.
1.4 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MN DOES NOT WARRANT THAT USE WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL/MALIGNANT CONTENT OR AVAILABILITY AT ANY TIME OR LOCATION. ACCURACY OF THE READINGS OR INFORMATION PROVIDED BY THE DEVICE OR SERVICES IS NOT GUARANTEED AND WE DO NOT WARRANT THAT THE READINGS/INFORMATION PROVIDED IS UP-TO-DATE, CORRECT OR COMPLETE.
1.5 MN makes no commitment to provide any support or maintenance for the Streametric device or Services.
2.1 Your Service may start with a demo. Any trial period lasts for as long as the period specified during sign-up and is intended to allow new and certain former members to try the Service.
3.1 Some of our Plans are billed on a subscription basis (“Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Plan. The Plan fees and Applicable Charges will be billed in accordance with the billing cycle you select. We will notify you of any changes to Plan fees and Applicable Charges prior to any renewal period. Your Subscription will automatically renew at the end of each billing cycle unless you cancel by contacting our customer support team. You may cancel auto-renewal on your Subscription at any time, in which case your Subscription and access to the Plan will be cancelled in the manner set out in Section 3.5 and 3.6 above. You may cancel auto-renewal on your Subscription immediately after the Subscription starts, if you do not want it to renew.
3.2 We reserve the right to terminate your subscription Plan at any time for non-payment, unless we receive the Plan fees and Applicable Charges prior to the termination of your Plan.
4.1 Unless otherwise stated, you are responsible for any taxes, duties or other charges associated with the Plan fees and the Applicable Charges you may incur in using the Streametric Device or Services, and you shall be fully liable to make all necessary payments in respect of such taxes or other charges, including any related penalties or interest (collectively, “Taxes”).
5 PRICE CHANGES
5.1 MN may change the fees charged for a Plan at any time, provided that, for Plans billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. MN will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective in accordance with Section 3.2.
6 YOUR OBLIGATIONS
6.1 You and/or any user accessing the Services through your Streametric Account shall:
i not impersonate another person or misrepresent authorisation to act on behalf of others or us;
ii correctly identify the sender of all electronic transmissions;
iii not decompile, reverse engineer or otherwise attempt to discover the source code of the Services, not attempt to view, access or copy any material or data other than that which you are authorised to access or use the Services in a manner, nor transmit, input or store any Customer Data (as defined in Section 9.2 below) that breaches any third party right, including intellectual property rights and privacy rights;
iv remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Services;
v not use, or misuse, the Services in any way which may impair the functionality of the underlying systems or impair the ability of any other user to use the Services. In particular, you must not hack into, interfere with, disrupt, disable, over-burden or otherwise impair the proper working of the Services or our servers, which shall include but is not limited to denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, spamming, or reprogramming;
vi not disable any licensing or control features of the Services;
vii not introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or retrieve or record information about the Services or the users;
viii not sublicense, assign, translate, rent, lease, lend, resell for profit, distribute or otherwise assign or transfer access to the Services to others;
ix not use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; or
x not otherwise act in a fraudulent, illegal, malicious or negligent manner when using the Services.
6.2 ANY USE OF THE SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
6.3 You and/or any user accessing the Services through your account shall not provide account passwords or other log-in information to any third party. You shall take reasonable steps to prevent unauthorized access of your account, including without limitation by protecting passwords and other log-in information. You shall notify us immediately of any known or suspected unauthorized use of the account or breach of its security and you shall use best efforts to stop said breach.
6.4 You may authorise any member of your personnel to be an authorised user of your Streametric Account. You shall take any steps necessary to procure each authorised user’s compliance with these terms and any other reasonable condition notified by us to you and prevent any individual other than an authorised user to access the Services through your account.
6.5 A breach of any of the EULA by any user accessing the Services through your Streametric Account, regardless of whether such user is an authorised user or not, is deemed to be a breach of these terms by you.
6.6 You are responsible for procuring all licences, authorisations and consents required for you and users accessing the Services through your Streametric Account, including to use, store and input Customer Data into, and process and distribute Customer Data through the Services.
6.8 You remain liable for your obligations under these terms despite any assignment, subcontracting or transfer of the Streametric Device.
6.9 You shall not access or use the Services by means of any automated program, expert system, electronic agent or “bot,” and shall not give any person or entity access to the Services.
6.10 You are prohibited from “scraping,” copying, republishing, licensing, or selling the data or information on the Services if you do so for commercial purposes.
7 INTELLECTUAL PROPERTY
7.1 You acknowledge and agree that any and all intellectual property rights, including without limitation applications, analytical data, photographs, hardware, models, computer software, ideas, design, know-how, trademarks, copyrights, inventions, products details, instructions, business plans and such other materials whether tangible or intangible owned by MN or licensed to you in connection with the Services or Streametric Device will be and remain the sole property of MN or the respective third party.
7.2 You agree to prevent any unauthorized copying, use, or distribution of the Services.
7.3 Except as expressly provided herein, MN does not grant any express or implied right to you under any MN-owned or licensed copyrights, trademarks, trade secrets, patents, or other proprietary rights.
7.5 If you provide us with ideas, comments or suggestions relating to the Services or the Streametric Device (“Feedback”):
i all intellectual property rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and you waive all rights you or your representatives have or may have, including all intellectual property rights, in and to all Feedback, and hereby assign to MN all of your rights in and to Feedback and will cause it representatives to assign all of such persons’ rights to MN and to waive all moral or similar rights that its representatives have such Feedback, and you will execute and cause to be executed all documents necessary to assign such rights and you are not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback; and we may use or disclose the Feedback for any purpose.
7.6 MN takes its intellectual property rights seriously and will enforce its intellectual property rights throughout the world within the scope of the applicable legislation.
8 DATA & PRIVACY
8.1 MN is aware that protection of your privacy when using the Services is an important concern for you. MN takes the protection of Personal Data very seriously. MN has, therefore, taken a variety of technical and organizational measures designed to ensure compliance with applicable law or any statutory modification, amendment or re-enactment thereof for the time being in force.
8.2 You agree and acknowledge that by your use of the Streametric Device and/or Services, we collect information and data, including but not limited to Personal Data; and network connectivity, mobile device ID, mobile device name, time of an event, which is owned, held, used or created by you or on your behalf that is stored using, or inputted into the Services (“Customer Data”). Customer Data may be stored and processed on servers outside the country in which you live.
8.3 You acknowledge and agree that MN may require access to the Personal Data and Customer Data to exercise our rights and perform our obligations under this EULA and to the extent that this is necessary for the provision of the Services, we may authorise our employees, agents, subcontractors and/or third party vendors to access, store and/or process the Personal Data and Customer Data.
8.4 MN may use Personal Data and Customer Data and information about your use of the Services to generate anonymised and aggregated statistical and analytical data (“Analytical Data”) and (i) use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and (ii) supply Analytical Data to third parties.
8.5 You must arrange all consents and approvals that are necessary for us to access the Customer Data.
8.6 You must obtain all necessary consents from the relevant individual(s) to enable us to collect, use, hold and process that information in accordance with this EULA.
8.7 While we will take standard industry measures to back up all Customer Data stored using the Services, you agree to keep a separate back-up copy of all Customer Data uploaded by you onto the Services.
8.8 You consent and agree that we may store, process and/or access the Personal Data and Customer Data in the European Economic area, the United States of America, Canada, Mexico, China, Brazil, Costa Rica, Singapore and India.
8.9 You acknowledge that we have engaged third party vendors for the purpose of providing the Services and you agree that such third party vendors may store, process and/or access the Personal Data and Customer Data in the following locations: European Economic Area, the United States of America, China, Brazil, Costa Rica, Singapore and India.
8.10 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Personal Data and Customer Data infringes the rights of that third party (including intellectual property rights and privacy rights) or that the Customer Data is objectionable, incorrect or misleading.
8.11 Our rights under this Section 9 survive termination of expiry of this EULA.
9 RIGHT OF ACCESS
9.1 You have the right to request and receive information on the personal data stored by MN on you. In addition, you have the right to correct inaccurate data, to block and to delete data. If you have questions in this regard, please contact our Data Protection Officer by email at: firstname.lastname@example.org.
10 FORCE MAJEURE
10.1 If either MN or the user is prevented from performing, or is unable to perform, any of its obligations under these terms due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks excluding any obligation to pay monies (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.
10.2 The affected Party must, however:
i give the other party prompt written notice of the nature and expected duration of such Force Majeure;
ii use commercially reasonable efforts to mitigate the delay and other effects;
iii periodically notify the other Party of significant changes in the status of the Force Majeure; and
iv notify the other party promptly when the Force Majeure ends.
11 WARRANTY AND LIMITATIONS OF LIABILITY
11.1 We warrant to you that the Services will perform, or will be performed, substantially in accordance with the specifications on the Website during the period of your Subscription. Such warranty applies only to the Services and we give no warranties in relation to the functionality of Streametric Device itself, or any software, hardware, devices or other materials not provided by us.
11.2 EXCEPT AS PROVIDED IN 12.1, THE SERVICES (INCLUDING ANY SOFTWARE AND CONTENT CONTAINED THEREIN) ARE LICENSED AND PROVIDED "AS IS" AND "AS AVAILABLE". ANY USE OF THE SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MN DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MN MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR WILL NOT CONTAIN CONTENT YOU DEEM OFFENSIVE, INDECENT, OR OTHERWISE OBJECTIONABLE, AND MN DISCLAIMS ANY LIABILITY RELATING THERETO. MN MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE USE OF OR THE RESULTS OF THE USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, BE ACCURATE, RELIABLE, CURRENT, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. MN WILL NOT BE LIABLE FOR ANY OTHER DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THAT RELATES IN ANY WAY TO THE USE OF OUR SERVICE, OR WHICH MAY ARISE OUT OF ANY PERSON'S ACCESS OR INABILITY TO ACCESS THIS WEBSITE OR RELIANCE ON THE INFORMATION CONTAINED ON THIS WEBSITE.
11.3 Some jurisdictions may not permit the exclusion or limitation of certain liabilities. To the extent applicable local law specifically and expressly prohibits such exclusions or limitations, those such exclusions or limitations set forth below may not apply to you.
11.4 MN’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SERVICES WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAID FOR THE APPLICABLE PORTION OF THE SERVICES AT ISSUE WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY IN TORT (INCLUDING MISREPRESENTATION). IN NO EVENT SHALL MN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF MN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
11.5 SUBJECT TO SECTION 12.2 ABOVE, BUT NOTWITHSTANDING ANYTHING ELSE HEREIN, MN ASSUMES NO LIABILITY IN CONNECTION WITH ANY USE OF THE STREAMETRIC DEVICE OR THE STREAMETRIC APPLICATION. UNDER NO CIRCUMSTANCES WILL MN, THE MN AFFILIATES, NOR ANY OF THEIR EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, SPONSORS, ASSIGNEES, OR LICENSEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE THAT ARE CAUSED BY, OR RESULT FROM, YOUR USE OF THE STREAMETRIC DEVICE AND/OR THE STREAMETRIC APPLICATION AND THE READINGS AND INFORMATION PROVIDED, INCLUDING A DELAY IN RESPONDING TO YOU AS A RESULT OF TECHNICAL FAILURES, TECHNICAL FAILURES ATTRIBUTABLE TO ANY POWER OUTAGES, MALFUNCTIONING OF THE DEVICE OR SOFTWARE, FAILURES OF ANY ELECTRONIC MESSAGE SOFTWARE, OR FAULTY MOBILE DATA TRANSMISSION, THE USE OF OR THE INABILITY TO USE THE DEVICE OR SOFTWARE OR ANY PARTS THEREOF, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OR ANY FAILURE OR PERFORMANCE.
11.6 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL CAUSE OF ACTION, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL THE MN BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, AND/OR SMARTPHONE FAILURE OR MALFUNCTION.
11.7 BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
11.8 Neither party will be responsible, liable, or held to be in breach of these terms for any failure to perform its obligations under these terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these terms, or by the negligence or misconduct of the other party or its personnel.
11.9 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these terms.
11.10 If you are a consumer, the provisions in this EULA are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. If you are a New Jersey consumer, the terms of this section above do not limit or waive your rights as a consumer under New Jersey law and the provisions in this EULA are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, we reserve all rights, defences and permissible limitations under the law of your State of residence. You represent and warrant that: (i) if you are located in the Provinces of Ontario, British Columbia, Alberta, Manitoba, New Brunswick, Newfoundland, Nova Scotia, or Quebec, you are purchasing the Services for a business purpose and not for a personal, family or household purpose; (ii) if you are located in the Province of Saskatchewan, you are purchasing the Services solely for a business purpose other than for agricultural or fishing purposes, and not for a personal, family or household purpose; (iii) if you are located in the Province of Prince Edward Island, you are purchasing the Services for a business purpose, and not for personal consumption; and (iv) if you are located in the Yukon, Northwest Territories, or Nunavut, you are (a) a corporation or (b) purchasing the Services for resale in the course of your business.”
12 DISCONTINUANCE, TERMINATION AND DISASSOCIATION
12.1 We may discontinue the Services at any time. In such an event, we will provide you notice so that you can export your Personal Data and Customer Data from your Streametric Account. If we discontinue the Services before the end of your subscription period to a Plan, you will be refunded a proportionate amount of Plan fees based on the unused portion of your subscription within 90 days from discontinuance of your subscription.
12.2 Your rights to access the Service shall be terminated upon the following events: a. if you fail to comply with any clause in this EULA; or b. if you become insolvent, liquidated or bankrupt, have an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, become subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
12.3 In case of such termination, we may immediately revoke your access to the Services without notice and without any refund of any Plan fees or Applicable Charges
12.4 Termination of these terms does not affect either Party’s rights or obligations that accrued before that termination.
12.5 At any time prior to the date falling one (1) month after the date of termination of your rights under this EULA, you may request:
i a copy of your Customer Data stored in your Streametric Account, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we will provide a copy of the Customer Data in a common electronic form within a reasonable period. We do not warrant that the format of the Customer Data will be compatible with any software; and/or
ii deletion of the Customer Data stored in your Streametric Account, in which case we must use reasonable efforts to promptly delete that Customer Data.
12.6 To avoid doubt, we are not required to comply with Section 13.5 to the extent that your Personal Data, if any, is no longer under our possession or control.
12.7 We reserve the right to disassociate any Streametric Device from a Streametric Account in the event that there is non-compliance with these terms.
13.1 No person other than you and us has any right to a benefit under, or to enforce this EULA.
13.2 Any failure to insist upon or enforce your strict compliance with this EULA will not constitute a waiver of any of our rights. If we waive any of rights under this EULA, such waiver shall be in writing and signed by us.
13.3 We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this EULA.
13.4 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. Save as for matters in relation to Section 10.1 above, you may give notice to us under or in connection with these terms by emailing to info@Streametric.io.
13.5 You agree to indemnify, defend and hold harmless MN, its members, affiliates, successors, assigns, and their respective employees and agents for, from, and against any claims, demands, obligations, liabilities, losses, costs, damages, fines, and expenses, including reasonable attorneys' and consultants' fees and court costs, made against MN by any third party due to or arising out of or in connection with (a) your use or misuse of the Services, including claims of actual or alleged infringement of Customer Data; (b) your alleged or actual breach of this EULA, including your express representations and warranties; and/or (c) your alleged or actual infringement or violation of the rights of a third party, including without limitation any intellectual property rights, rights of publicity, and rights of privacy.
13.6 This EULA shall be governed and interpreted in accordance with the law of North Carolina. Any dispute arising out of or in connection with this EULA and/or or the Streametric Services, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by state or federal courts in accordance with the law of the state of North Carolina.
13.7 Clauses which, by their nature, are intended to survive termination of this EULA continue in force post-termination.
13.8 If any part or provision of this EULA is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these terms. The remainder of these terms will be binding on you.
13.10 We are not authorized to do business in every jurisdiction. Information published on this Site may contain references or cross-references to goods or services that are not available in your state or country.