End User License Agreement
Version effective as of June 28, 2022
Acceptance of this agreement by Nimagna is expressly conditioned upon Your assent to all the terms and conditions of this Agreement.
INTERPRETATION AND DEFINITIONS
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
For the purposes of this End User License Agreement:
Affiliate means any corporation or any corporation or directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (i) own more than 50% of the relevant party; or (ii) be able to direct the affairs of the relevant party through any lawful means, e.g., a contract that allows control.
Agreement means this End User License Agreement.
Confidential Information means all non-public information provided by the other party relating to the business, systems, operations, strategic plans, clients, pricing, methods, processes, financial data, programs, and/or products of the other party in any form, that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential. For purposes of this Agreement, Your Confidential Information shall include Your Data, and any information disclosed to Nimagna by You relating to the business, systems, operations, strategic plans, clients, pricing, methods, processes, financial data, programs, and/or products of You. Confidential Information shall not include content or information that (i) is already rightfully known to a party without confidentiality obligations; (ii) is or becomes publicly known or available through no wrongful act of a party; or (iii) is independently developed by a party without the use of any proprietary, non-public information provided by the other party under the Agreement.
Content means information or materials in any form or format that You send, transmit, display, or upload while using the Software.
Export Control and Sanctions Rules means all export and trade sanction laws, restrictions, rules, and regulations, including without limit those of the European Union, the United States, or other foreign agency or authority.
Devices means any device that may be needed to use the Software such as a computer, a cellphone, a digital tablet, or a webcam.
Nimagna (referred to as either "Nimagna", "the Company", "We", "Us" or "Our" in this Agreement) refers to Nimagna AG, c/o Bellerive Rechtsanwälte, Bellerivestrasse 7, 8008 Zürich, Switzerland, or any one of its subsidiaries or Affiliates.
Nimagna Content means any images, 3D models, audiovisual works, tools, and other material that is provided by Nimagna and available for use within the Software.
Software means the Nimagna software, related services, and on-line documentation installed by, provided, or accessed in relation with this installer program.
Support means any support, upgrades, updates, patches, or enhancements of the Software.
Third-party Providers means third-party websites, products, services, and content, including but not limited to, third-party video conferencing or virtual events tools and third-party content libraries.
Usage Analytics Data refers to data collected automatically, either generated by use of the Software, including but not limited to counts of the number of times the Software is installed, uninstalled and run, summary information about any errors encountered when the Software is run (no detailed information is recorded), or counts of the number of times key features within the Software are used.
Website refers to the Nimagna webpage, accessible from https://www.nimagna.com.
You means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.
GRANT OF LICENSE
Subject to the terms of this Agreement and Your compliance therewith, Nimagna grants to You a personal, non-transferable, non-sublicensable, non-exclusive license to install and/or use this Software, for such time until either You or Nimagna terminates this Agreement. You must in no event use, nor allow others to use, the Software for commercial purposes without obtaining a license to do so from Nimagna.
You shall not, nor shall You permit anyone else to, directly or indirectly:
use the Software for any unauthorized or illegal purposes, and You agree to comply with all applicable laws and regulations in Your jurisdiction;
infringe or violate the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party;
disseminate, transfer or store Content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that otherwise violate any law or right of any third party;
disseminate Content that is the confidential information of any third party without authorization from such third party to do so;
interfere with Nimagna servers or third-party service providers utilized with the Software;
use the products and/or services of any Third-party Provider in connection with the Software in violation of any third-party policies, or laws or regulations;
modify, distribute, or copy the Software; reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or structure, sequence, and organization of the Software (except to the extent restrictions on reverse engineering are prohibited by applicable local law).
Nimagna reserves the right, in its sole discretion, to decide as to whether Your use of Our Software is acceptable. Please note that violations of these restrictions may result in immediate termination of this Agreement and access to the Software without notice.
Nimagna owns or controls the Nimagna Content. Nimagna grants You a license to use Nimagna Content solely in connection with the Software. You may not distribute, modify, transmit, reuse, download, copy, or use Nimagna Content separate and apart from uses within the Software.
You shall maintain and not remove or obscure any proprietary notices on the Software and shall reproduce such notices exactly on all permitted copies (if any) of the Software.
TITLE AND OWNERSHIP
As between the parties, all title, ownership rights, and intellectual property rights in and to the Software or any Nimagna service, and any copies, portions, or derivatives thereof, shall remain in Nimagna and its suppliers or licensors.
This Agreement does not entitle You to any Support for the Software. Any such Support for the Software that may be made available by Nimagna, in its sole discretion, shall become part of the Software and subject to this Agreement.
SYSTEM REQUIREMENTS AND THIRD-PARTY PROVIDERS
Use of the Software requires one or more compatible Devices, Internet access, and certain software. Your ability to use the Software may be affected by the performance of Your Devices and services. You shall be solely responsible for obtaining and maintaining any Device or ancillary services needed to connect to, access, or otherwise use the Software, including, without limitation, hardware, software, and Internet access and ascertain its compatibility with the Software.
Nimagna’s Software allows You to interact with or may use features from Third-party Providers for which additional terms and/or costs may apply. Nimagna does not control Third-party Providers and Your use may be subject to the Third-party Provider’s terms and conditions. You acknowledge and agree to comply with such additional terms and conditions, that Nimagna is not responsible for the activities or availability of any Third-party Providers, and that Nimagna shall not be responsible or liable, directly or indirectly, for any damage or loss caused by Third-party Providers.
Our Software has an integrated analytics and reporting component that collects Usage Analytics Data. By running Our Software, You consent to the gathering of such information and the subsequent transmission of said data to Nimagna. Information is only sent to Nimagna using https encrypted secure transfer methods. Information gathered by the analytics component may be used to enhance and improve Our Software and services or provide new or better products and services. Any such use by Us of information gathered from You will be anonymous and will never reveal personally identifiable data to third parties.
COPYRIGHTS AND TRADEMARKS
Nimagna’s Software, services, and Nimagna Content are the exclusive property of Nimagna and its licensors. The Software and services are protected by copyright, trademark, and other laws of both Switzerland and foreign countries. Nimagna’s name and trademarks may not be used in connection with any product or service without the prior written consent of Nimagna.
TERM AND TERMINATION
This Agreement shall continue until terminated as set forth in this section. You may terminate this Agreement at any time. Nimagna may also terminate this Agreement any time, without prior notice or liability, for any reason, including but not limited to a breach of this Agreement. Upon termination, the Agreement granted hereunder shall terminate and You shall immediately destroy and remove from all computers all copies of the Software, and discontinue all use of the Software, but the terms of this Agreement will otherwise remain in effect.
You agree that Nimagna and its partners, contractors, and agents shall have no liability whatsoever for any use You make of the Software. You agree to defend, indemnify and hold harmless Nimagna and its partners, contractors, and agents, and its and their respective owners, employees, contractors, agents, officers and directors, users and their respective successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of Your use and access of the Software, Your breach of any term of this Agreement, or Content uploaded into the Software.
This Software is provided 'as-is' and Nimagna makes no warranty of any kind with regards to the Software. Nimagna expressly disclaims all warranties, whether express, implied, or statutory, including without limitation, any implied warranties of merchantability or fitness for a particular purpose or non-infringement. Nimagna disclaims any knowledge of and does not guarantee that the Software is bug-free or error-free, that the use of the Software will be uninterrupted, that any defect or error in the Software will be corrected, that the Software will meet Your specific needs or requirements, or that the Software is free of viruses or other harmful components. You understand that Nimagna may modify or discontinue offering the Software or any Nimagna service at any time. This Agreement does not give You any rights not expressly granted herein.
You acknowledge and affirm that Nimagna does not create or control Your use of the Software and that You shall be solely responsible for the manner in which You use Our Software, including but not limited to what Content You access via Our Software. You understand that Nimagna cannot guarantee and Nimagna disclaims any knowledge that Your use is permissible under any law or regulation.
Content You create, record or distribute by using Our Software is done at Your own risk. You are solely responsible for any damage to Your property, loss of data, or any other loss that results from such access, use, or download of the Software.
In no event will Nimagna be held liable for any damages arising from the use of this Software.
LIMITATION OF LIABILITY
To the maximum extend permitted by applicable law, Nimagna, its Affiliates and its and their respective owners, directors, officers, employees, agents, suppliers or contractors, and their respective successors and assigns, shall not be held liable in any matter whatsoever for any loss or damages of any kind, including, but not limited to direct, indirect, special, consequential, incidental, punitive, or exemplary damages or damages for loss of profits, revenues, data, property, or use, incurred by You or any third party, arising out of, in connection with, or relating to Your use of the Software, even if such damages are foreseeable or Nimagna has been advised of the possibility of such loss or damages.
To the maximum extend permitted by applicable law, Nimagna’s liability hereunder, for breach of, or arising out of this Agreement to Your direct and documented damages shall be limited to the aggregate amount of fees paid by You to Nimagna during the three-month period immediately preceding the event that gave rise to Your claim for damages.
In connection with the Software, You hereby agree to comply with the Export Control and Sanctions Rules and You agree not to export or allow the export or re-export of the Software in violation of any such restrictions, laws, or regulations. By using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.
Each party agrees to regard and preserve as confidential all Confidential Information. Each party agrees to limit its disclosure of the other party’s Confidential Information to as few persons as possible and only to those persons with a need to know that are its or its Affiliates’ personnel and subject to an obligation to keep such information confidential. Except as needed to fulfill their respective obligations under the Agreement, neither party shall, without first obtaining the other party’s prior written consent, disclose to any person, firm or enterprise, except as expressly permitted herein, or use for its own benefit, or the benefit of a third party, the Confidential Information of the other party.
Either party may disclose Confidential Information where required by law, regulation, or court order, provided that the party subject to such law, regulation or court order shall, where permitted, notify the other party of any such use or requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.
GOVERNING LAW AND JURISDICTION
All disputes arising out of or relating to this Agreement that involve Nimagna shall in all respects be governed by, and construed and interpreted in accordance with, the substantive laws of Switzerland, under the exclusion of its private international law statute and international treaties, if any.
Any dispute or claim related to, or arising under, or in connection with this Agreement that involves Nimagna shall be submitted, to the extent permitted by law, to the exclusive jurisdiction of the ordinary courts at the registered offices of Nimagna. Any written evidence in a language other than English shall be submitted with an English translation.
This Agreement and any policies or operating rules posted by Us on the Site or in respect to the Site constitute the entire agreement and understanding between You and Nimagna with respect to Your use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter.
Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Should any part or provision of this Agreement be held to be invalid or unenforceable by any competent court, governmental or administrative authority having jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In this case, the invalid or unenforceable provision shall be replaced by a substitute provision that shall be reformed and construed so that it will be valid, legal and enforceable to the maximum extent permitted by law.
Nimagna expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder at any time.
CHANGES TO THIS AGREEMENT
Nimagna reserves the right, at its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain parts of this Agreement at any time. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this Agreement by clicking on the respective link in the Software or on the Website.
You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to You or cause You to no longer be in agreement or compliance with this Agreement, You may terminate this Agreement in accordance with the terms of this Agreement and must immediately uninstall the Software and destroy all copies of the Software. Your continued use of the Software following any revision to this Agreement constitutes Your complete and irrevocable acceptance of any and all such changes.
You hereby waive any and all defenses You may have based on the electronic form of This Agreement and the lack of signing by the parties hereto to execute this Agreement.
Please also feel free to contact Us if You have any questions or need further information about this Agreement. You may write to Us at: firstname.lastname@example.org.