VERSION 1.0 UPDATED ON 22.04.2021
SYNERGYXR TERMS AND CONDITIONS
These General Terms and Conditions (‘GTC’) apply to all sales subject to a License Agreement (“Agreement”) entered into as of the Effective Date by and between SynergyXR ApS, a Danish corporation with its principal place of business at Silkeborgvej 261-263, DK-8230, Åbyhøj, Denmark on behalf of itself and its Affiliates (collectively, “SynergyXR”), and the other contracting party (individual or entity) in the Agreement (“Licensee”) notwithstanding any conflicting, contrary or additional terms and conditions in any sale or contained in any communication from Licensee to SynergyXR. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by SynergyXR unless and until such additional terms and conditions are expressly accepted in writing by SynergyXR.
SynergyXR reserves the right to change these GTC at any time and will give notice of any changes by posting notice on SynergyXR website.
SynergyXR wishes to provide Licensee private access to 3D, augmented reality and virtual reality software, systems and services currently referred to as “SynergyXR ”; and
Licensee wishes to gain access to SynergyXR’ servers, applications, plug-ins and related software and services in order to use the opportunity and feasibility to change work-related procedures, instructions, collaboration and support across multiple work situations.
“Affiliate” means, with respect to a party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with that party, where “Control,” “Controlled by,” and “under common Control with” mean possession, directly or indirectly, through one or more intermediaries, of the power to direct or cause the direction of management or policies of such entity, whether through ownership of equity, voting or other interests, by contract, or otherwise.
“Communications Means” means any software, platform, systems or similar communications means to which SynergyXR may grant Licensee access to for the purposes of communication in connection with the use of SynergyXR or materials (e.g. a Slack channel). For greater certainty, any repository for SynergyXR or materials is not a Communications Means.
“Effective Date” has the meaning as provided in Section 7.1 of these GTC.
“Intellectual Property” means any and all published and unpublished works of authorship, including without limitation audio-visual works, collective works, computer programs, software, compilations, code, databases, derivative works, literary works, mask works, and sound recordings; inventions and discoveries, whether patented, patentable or subject to trade secret protection, including without limitation articles of manufacture, business methods, compositions of matter, improvements, machines, methods, and processes and new uses for any of the preceding items; information, data, and/or materials, whether tangible or intangible, including algorithms, customer lists, ideas, designs, formulae, know-how, methods, processes, prototypes, systems, and techniques, as well as anything else recognized as intellectual property under applicable law.
“Output” means the federated data and/or content that Licensee compiles or develops using SynergyXR.
“Proprietary Rights” means all proprietary rights and all rights of and in patents, mask works, designs, copyright (including the right to prepare derivative works), trademarks, trade names, service marks, database rights, any applications for registration any of the foregoing, author or moral rights, trade secret rights, Intellectual Property, rights of publicity or of personality, and any other like rights now known or hereafter existing in any jurisdiction.
“SynergyXR” means the software developed by SynergyXR for use in optimization, communication, collaboration, step-by-step scenarios and data visualization.
“Term” has the meaning provided in Section 7 of these GTC.
Grant to SynergyXR, Communications Means
Subject to the Agreement and these GTC, SynergyXR grants to Licensee for the Term a limited, revocable, non-exclusive, non-transferable, non-sublicensable, and royalty-free license to download and run SynergyXR in Licensee’s systems.
Licensee acknowledges and agrees that SynergyXR owns all right, title, and interest in and to SynergyXR (including any and all deployed associated services), including all Proprietary Rights therein and thereto, and reserves all rights not expressly granted to Licensee under the Agreement and these GTC. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, NO RIGHTS OR LICENSES ARE GRANTED TO DISCLOSE, TO DISTRIBUTE, OR TO DISSEMINATE SYNERGYXR OR ANY PART OF SYNERGYXR.
SynergyXR reserves the right, at SynergyXR’ sole discretion, to modify SynergyXR (including any and all deployed associated services) and/or Communications Means. By continuing to access or use SynergyXR (including any and all deployed associated services) and/or Communications Means after SynergyXR has provided Licensee with a notice of a material modification, Licensee agrees to be bound by such materially modified terms. If the materially modified terms are not acceptable to Licensee, Licensee must cease to use SynergyXR (including any and all deployed associated services) and/or Communications Means.
SynergyXR will provide support on workdays during normal business hours: 08.00 – 16.00 CET.
Notwithstanding anything else herein, to the extent that SynergyXR (including any and all deployed associated services) provided by SynergyXR according to the Agreement and these GTC incorporates or is bundled with any third-party software, such third-party software shall be governed exclusively by terms and conditions governing such software.
Licensee is not allowed and shall not allow any third party to: (a) make modifications, translations, dissemble, decompile or reverse engineer, or create derivative works based on or (wholly or partially) by copying any coding embodied in SynergyXR; (b) circumvent limits or other timing or use restrictions that are embodied in SynergyXR; (c) remove proprietary notices, labels, or marks from or in SynergyXR; (d) frame or mirror any content forming part of SynergyXR, other than as necessary for the permitted use of SynergyXR according to the Agreement and these GTC (e) access SynergyXR to try to build a competitive product or service, or to copy any ideas, features, functions or graphics of SynergyXR; or (f) use SynergyXR (wholly or partially) for any hazardous or illegal purposes requiring any kind of fail-safe performance, such as – but not limited to – aircraft navigation, air traffic control, or weapons systems, in which the failure of SynergyXR could lead to death, personal injury, or severe physical or environmental damage.
Licensee exclusively owns all rights, title and interest in and to all Licensee’s own data. SynergyXR shall not access Licensee’s data, except to respond to service or technical problems or at Licensee’s request or as necessary for the operation of SynergyXR. Licensee hereby grants SynergyXR a royalty-free, non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to host, copy, display, use and otherwise exploit Licensee’s Data to the extent reasonably required for SynergyXR to perform its obligations pursuant to the Agreement and these GTC. This license shall inter alia include the right to use and copy Licensee’s data with the purpose of creating anonymized statistical analytics with respect to SynergyXR, and such statistical analytics shall be owned by SynergyXR.
To ensure Licensee’s compliance with the Agreement and these GTC, Licensee agrees that upon SynergyXR’ request, Licensee shall within 10 working days provide all pertinent records and information requested by SynergyXR in order to verify that Licensee’s installations and use of SynergyXR (including any and all deployed associated services) and/or Communications Means are in compliance with the Agreement and these GTC.
Term and Termination
Term. The term of the Agreement will commence on the date that SynergyXR provides written notice to Licensee of confirmation of receipt of the Agreement as signed by Licensee in a manner satisfactory to SynergyXR (“Effective Date”) and continue in effect until the date agreed in the Agreement, unless terminated as set forth in these GTC (“Term”).
Termination. Both SynergyXR and Licensee may terminate Licensee’s subscription to SynergyXR as of the end of Licensee’s Term by providing written notice, in accordance with the Agreement and these GTC, no less than thirty (30) days prior to the end the Term. Unless Licensee’s subscription to SynergyXR is so terminated, Licensee’s subscription to SynergyXR (including any and all deployed associated services) will renew for a new term equivalent in length to the Term. Unless otherwise provided for, the subscription charges applicable to Licensee’s subscription to SynergyXR (including any and all deployed associated services) for any such subsequent term shall be SynergyXR standard subscription charges for SynergyXR (including for any and all deployed associated services) to which Licensee has subscribed or which Licensee has deployed, as applicable, as of the time such subsequent term commences.
Except for Licensee’s termination rights under Section 7.2, no refunds or credits for subscription charges or other fees or payments will be provided to Licensee if Licensee terminates subscription to SynergyXR (including any and all deployed associated services) prior to the end of Licensee’s then applicable term.
Except for Licensee’s termination rights under Section 7.2, if Licensee terminate subscription to SynergyXR (including any and all deployed associated services) prior to the end of Licensee’s then effective term, or SynergyXR effect such termination or cancellation pursuant to Sections 7.2 and 7.3, in addition to other amounts Licensee may owe SynergyXR, Licensee must immediately pay any then unpaid subscription charges associated with the remainder of such term. This amount will not be payable by Licensee in the event Licensee terminate or cancel Licensee’s subscription to SynergyXR (including any and all deployed associated services) as a result of a material breach of the Agreement and/or these GTC by SynergyXR.
SynergyXR reserves the right to restrict functionality, suspend or terminate the services provided under the subscription to SynergyXR (or any part thereof including any and all deployed associated services), remove, disable and quarantine any data provided through SynergyXR (or any part thereof including any and all deployed associated services) if SynergyXR reasonably believe that Licensee has violated the Agreement of these GTC. Unless legally prohibited from doing so, SynergyXR will use commercially reasonable efforts to contact Licensee directly via email to notify Licensee when taking any of the foregoing actions. SynergyXR shall not be liable to Licensee or any other third party for any such modification, suspension or discontinuation of Licensee’s rights to access and use SynergyXR (or any part thereof including any and all deployed associated services). Any suspected fraudulent, abusive, or illegal activity by Licensee’s users may be referred to law enforcement authorities at SynergyXR’ sole discretion.
Both SynergyXR and Licensee may terminate the Agreement for cause (a) upon written notice to the other party of a material breach if such breach remains uncured at the expiration of thirty (30) working days from the date of the breaching party’s receipt of such notice; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the Agreement is terminated by Licensee in accordance with this section, SynergyXR will, to the extent permitted by applicable law, refund Licensee any prepaid subscription charges for the period after the effective date of termination. If the Agreement is terminated by SynergyXR in accordance with this section, Licensee is obliged to pay any unpaid subscription charges covering the remainder of applicable term, see section 7.1-7.2. In no event will termination relieve Licensee’s obligation to pay any subscription charges payable to SynergyXR for the period prior to the effective date of termination.
Upon request by Licensee made within thirty (30) days after the effective date of termination or expiration of the Agreement, SynergyXR will make Output data available to Licensee for download. After such 30-day period, SynergyXR will have no obligation to maintain or provide any Output data and will be eligible to delete all copies of such Output data in SynergyXR’ possession or control, unless prohibited by law.
Effect of Termination. In the event of any termination of the Agreement by either party under section 7.2, Licensee will return SynergyXR (including any and all deployed associated services) to SynergyXR and cease all use thereof. For the avoidance of doubt, the foregoing sentence will not affect Licensee’s ability to retain or make future use of any of Licensee’s existing content or data that was developed, compiled or created without the use of SynergyXR (including any and all deployed associated services).
Survival. Sections 2.2 and 3 through 11 (inclusive) of these GTC will survive termination.
Licensee shall indemnify and hold harmless SynergyXR from and against any and all claims arising from Licensee’s use of SynergyXR (including any and all deployed associated services) and/or Communications Means, or from the conduct of Licensee’s business or from any activity, work or things done, permitted or suffered by Licensee in connection with the use of SynergyXR (including any and all deployed associated services) and/or Communications Means and shall further indemnify and hold harmless SynergyXR from and against any and all claims arising from any breach or default in the performance of any obligation on Licensee’s part to be performed using SynergyXR (including any and all deployed associated services) and/or Communications Means, or arising from any negligence of the Licensee, or any of Licensee’s agents, contractors, or employees, and from and against all costs, attorney’s fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against SynergyXR by reason of any such claim, Licensee upon notice from SynergyXR shall defend the same at Licensee’s expense by counsel chosen by SynergyXR.
Limitation of Liability
EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTIONS 2, IN NO EVENT SHALL SynergyXR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THE AGREEMENT AND/OR THESE GTC, TERMINATION OF SAME, OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF ADVISED OR AT THE TIME AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED. FOR PURPOSES OF CLARITY, SynergyXR’ LIABILITY FOR INFORMATION THAT MAY BE PERSONAL DATA UNDER DATA PROTECTION LAWS SHALL BE LIMITED AND SynergyXR’ SOLE OBLIGATIONS WITH RESPECT TO SUCH DATA ARE AS STATED IN SECTION 4.1 IN THESE GTC AND IN APPLICABLE DATA PROTECTION LAWS. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, SynergyXR’ AGGREGATE DIRECT DAMAGE LIABILITY TO LICENSEE RELATING TO THE AGREEMENT OR THESE GTC REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, SHALL NOT EXCEED LICENSEES’ TOTAL TURNOVER IN THE FORGOING 12 MONTHS PRIOR TO USING SYNERGYXR.
Licensee will have no right to assign or delegate the Agreement, in whole or in part, by operation of law or otherwise, without SynergyXR’ express prior written consent. Any assignment, delegation, or transfer, or attempted assignment, delegation, or transfer, in violation of the foregoing shall be null and void and wholly invalid. Subject to the foregoing, the Agreement and these GTC will bind and inure to the benefit of each party’s successors and assigns.
The Agreement and these GTC constitute the entire, final and exclusive understanding and agreement between the parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions whether oral or written, of the parties. The provisions of the Agreement and these GTC may not be amended or supplemented unless such amendment or supplement is agreed in writing between the parties and made as an appendix to the Agreement.
The parties have the status of independent contractors, and nothing in the Agreement or these GTC shall be deemed to place the parties in the relationship of principal-agent, partners or joint ventures, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of the other party, nor to impose any obligation upon the other party.
Should any provision of the Agreement or these GTC be held to be void, invalid or inoperative, the remaining provisions of the Agreement and these GTC shall not be affected and shall continue in effect as though such provisions were amended or deleted as determined by the arbitrational tribunal, see section 12.
Affiliates of SynergyXR shall be third-party beneficiaries under the Agreement and these GTC; however, no other persons shall be third-party beneficiaries.
Except as expressly set forth in the Agreement or these GTC, the exercise by either party of any of its remedies under the Agreement and/or these GTC will be without prejudice to the party’s other remedies under the Agreement and/or these GTC or otherwise.
All notices under the Agreement and these GTC by Licensee shall be made in writing and sent by email to firstname.lastname@example.org unless there is reason to believe that such email was not delivered to the correct recipient; (c) or upon delivery when sent by express mail, courier, overnight mail or other recognized overnight delivery service charges prepaid to SynergyXR ApS, at Silkeborgvej 261-263, DK-8230, Åbyhøj, Denmark.
Governing Law and Venue
Any dispute or claim arising out of or in connection with the Agreement and these GTC, or the breach, termination or invalidity thereof which the parties have been unable to settle amicably shall be settled by arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Danish Arbitration).