NOTIFICATION

The ‘Moovment Suite’ of installed Software and Software as a Service (SaaS) consists of Moovment Scan, Moovment Lab and Moovment Pro. Customers subscribing to the installed Moovment Scan and installed Moovment Lab software licenses must review and agree to this End-User Licence Agreement (EULA). Customers subscribing to the Moovment Pro web application, also known as the ‘Moovment Pro Portal’ SaaS, must review and agree to the Service Agreement. We advise all Customers to review and agree to the Privacy Policy, Support Services Addendum, Data Processing Addendum and Service Agreement before using the www.qinematic.com or www.moovment.pro websites or any other Services provided by Qinematic and its service companies.

THIS END USER LICENSE AGREEMENT (EULA) IS FOR AMERICAN CUSTOMERS ONLY.

PLEASE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING AND USING SOFTWARE. BY CLICKING “ACCEPTED AND AGREED TO” OR SIMILAR ACCEPTANCE INDICIA, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

Please read this End ­User License Agreement ("Agreement") carefully before signing any sales agreements, downloading or using Qinematic’s Moovment Scan or Moovment Lab installed software (“Software” or "Application"). By downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement.

If you do NOT agree to the terms of this Agreement, do not download or use the Application.

END-USER LICENSE AGREEMENT - USA CUSTOMERS

This End-User License Agreement (this “Agreement”) is a binding agreement between you (“Customer” “You” “Your”) and Qinematic AB, (“Company”) granting You limited rights to use certain Company Software for which You have completed a product Order and fully paid the corresponding fee due to Company. Your Order is subject to this EULA. No Orders are binding on Company until accepted by Company. Orders for Software are deemed to be accepted upon Company’s delivery of the Software included in such Order.

BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE THAT YOU PAID FOR THE SOFTWARE.

TERMS AND CONDITIONS

1.DEFINITIONS

The following capitalised terms shall have the following meanings whenever used in this Agreement.

1.1.      “Defined Purpose” means the collection and monitoring of health and fitness data, education and exercise prescription, in pursuit of optimal health, wellbeing and performance.

1.2.      “Documentation” means the Software’s standard user manual as provided by Company to Customer.

1.3.      “Notice of Termination” is written notice of a contract cancellation.

1.4.      “Notice Period” means the minimum notice period for cancelling a Subscription.

1.5.      “Order” means Customer´s order for access to the Software, executed through the Company, its agents and affiliates via a standard Company order form.

1.6.      “Software” means Company’s Moovment Scan software or Moovment Lab software, in executable format, as seen on the www.moovment.pro website.

1.7.      “Sales Agreement” means the terms and conditions for issuing a software license subscription and/or software as a service (SaaS) subscription.

1.8.      “Territory” means the country in which the Customer resides or from which they operate their business.

1.9.      “Term” is defined in Section 9.1 below.

2.0.      “Upgrade” means any and all new versions, updates, upgrades, adaptations, enhancements, derivative works and other changes made to the Software, whether made by Company or Customer or any third party.

2.LICENSE GRANT

2.1.      License. Company hereby grants Customer a non-exclusive and non-sublicensable license to use one copy of the Software during the Term, provided Customer complies with the restrictions set forth in Section 2.2 below. This license is limited and shall allow Customer to use one copy of the Software only for the Defined Purpose and only within the Territory.

2.2.      Restrictions on Software Rights. Any copy of the Software created or transferred pursuant to this Agreement is licensed, not sold or otherwise transferred to ownership of any person, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense any part of the Software; (b) use any part of the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any part of the Software, including Software’s source code.

2.3.      Documentation. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.

3.IP & FEEDBACK

3.1.      IP Rights in the Software. Company retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (Licenses), 2.3 (Documentation). Company's ownership rights also include any and all data, algorithms, interfaces, and other technical or operational specifics that are created, derived, or generated from the use or application of the Software. Customer recognizes that the Software and its components are protected by copyright and other laws.

3.2.      Feedback. Customer hereby grants Company a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) that Customer communicates to Company during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Company’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way. Notwithstanding the provisions of Article 4 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Company’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)

4.CONFIDENTIAL INFORMATION

4.1.      “Confidential Information” refers to the following items Company may disclose to Customer: (a) any document Company marks “Confidential”; and (b) any Documentation or other materials provided to Customer as part of the Support Services whether or not marked or designated confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Company’s valuable trade secrets.

4.2.      Non-disclosure. Customer shall not use Confidential Information for any purpose other than in support of its permitted use of the System (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 4; and (b) shall not disclose Confidential Information to any other third party without Company’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Company of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company’s expense.

4.3.      Retention of Rights. This Agreement does not transfer ownership of any Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to any and all Confidential Information of Discloser.

4.4.      Injunction. Customer agrees that breach of this Article 4 would cause Company irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Company will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

5.SOFTWARE AUDIT

5.1.      During the Term of this Agreement and at any time during the following year thereafter, Company may audit Customer’s use of Licensed Software on 24 hours advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to the use of Licensed Software. Such audit shall not unreasonably interfere with Customer’s business activities. If Company discovers unauthorized use, reproduction, distribution, or other exploitation of Licensed Software, Customer shall reimburse Company for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Company may have. Company may not conduct an audit more than once per year.

6.REPRESENTATIONS & WARRANTIES

6.1.      From Company.

a)     Re Function. Company represents and warrants that, during the Term the Software will perform materially as described in the Documentation provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Company.

b)    Re IP Rights in the Software. Subject to the next sentence, Company represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software set forth in this Agreement without a necessity to obtain the further consent of any third party.

6.2.      From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

6.3.      Warranty Disclaimers. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCT IS SUPPLIED ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHER.

7.INDEMNIFICATION

7.1.      Indemnified Claims. Company shall defend and indemnify Customer against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of, or alleging direct infringement of any patent, copyright, or other intellectual property right solely by the ordinary and intended use of the Software. Company’s obligations do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to the Software made without Company’s written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (d) Company’s modification of Software in compliance with specifications provided by Customer; or (e) use of the Software in combination with hardware or software not provided by Company. Customer shall promptly notify Company of any actual or potential claim. Company shall be excused from its indemnification obligation if Customer fails to report the claim to Company within 60 days of first notice.

7.2.     Litigation & Additional Terms. Company’s obligations pursuant to Section 7.1 above will be excused to the extent that Customer’s failure to reasonably cooperate materially prejudices the defense. Company will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. Customer shall duly and timely provide Company with all cooperation and assistance (including provision of information, explanations, documents or responses to requests) required by Company when defending any Indemnified Claim.

8.LIMITATION OF LIABILITY

8.1.      Dollar Cap. COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE PRICE PAID BY CUSTOMER TO COMPANY FOR THE MOST RECENT 3 MONTHS OF SERVICE, OR AS A PRO-RATA SHARE OF THE ANNUAL FEE.

8.2.      Excluded Damages. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR LOSS OR DAMAGE SUFFERED BY CUSTOMER IN CONNECTION WITH THE USE OF THE SOFTWARE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS. 

8.3.      Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 8, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 8 apply likewise to Company’s affiliates, agents, directors, officers, and other representatives.

8.4.      Exceptions to Limitation of Liability. Sections 8.1 (Dollar Cap) and 8.2 (Excluded Damages) above do not apply to: (a) claims pursuant to Article 7 above (Indemnification); or (b) claims for attorneys’ fees and other litigation costs recoverable by the prevailing party in any action.

9.TERM & TERMINATION

9.1.      Term. This Agreement will remain in effect for the duration of the subscription period selected when purchasing the Software via an Order, with due consideration for the Notice Period. The Order date of the Software is the “Effective Date” and the subscription period is the “Term”. The Notice of Termination from the Customer to the Company must occur within the Notice Period and must occur prior to the next subscription period according to the following rules, unless otherwise stated in another Sales Agreement approved by the Company. Previous payment is non-refundable.

a)      “Annual subscriptions” are valid for a Term of one year from the Effective Date, with payment at the beginning of each period, unless otherwise stated in another Sales agreement approved by the Company. Thereafter, the Term will renew for successive one-year periods only upon timely payment by Customer of a renewal fee as determined by the Company. There is a three (3) month Notice of Termination period for Annual subscriptions.

b)     “Monthly subscriptions” are valid for a Term of one month, starting from the Effective Date. Thereafter, the Term will renew for successive one (1) month periods only upon timely payment by Customer of a renewal fee as determined by the Company. There is a one (1) month or more Notice of Termination period for Monthly subscriptions, and termination will occur at the end of the following period.

9.2.      Termination for Material Breach. Either party may terminate this Agreement for the other party’s material breach, by written notice specifying in detail the nature of the breach, effective in 30 days after dispatching such notice to the other party, unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.

9.3.      Termination for Ownership Change. If Company ceases to have any ownership share in Customer, then Company may terminate this Agreement by written notice, effective immediately after dispatching such notice to Customer.

9.4.      Termination for Financial Problem. Either party may terminate this Agreement, without any liability, upon written notice to the other party, in the event that the other party (a) becomes insolvent or unable to pay its debts as they mature or (b) files a petition for bankruptcy or (c) is the subject of an involuntary petition for bankruptcy that is not dismissed within thirty (30) days or (d) makes an assignment for the benefit of creditors or (e) seeks relief under any bankruptcy, insolvency or debtor's relief law or (f) consents to the institution of insolvency or bankruptcy proceedings or (f) is the subject of a winding up or liquidation order or (g) appoints any trustee, liquidator, custodian, receiver or similar official in respect of its assets or properties. Such written notice shall be effective immediately after dispatching such notice to the other party.

9.5.     Effects of Termination. Upon termination of this Agreementfor any reason,all licenses and rights granted to Customer under this Agreement shall terminate,Customer shall cease all use of the Software and shallremove the same from all computers, storage devices, development systems, and any other device or system,and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Section 2.2 (Restrictions on Software Rights), Article 3 (IP & Feedback), Article 4 (Confidential Information), Article 5 (Software Audit), Section 6.3 (Warranty Disclaimers), Article 8 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

10.MISCELLANEOUS

10.1.       Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. This Agreement does notcreate any partnership or joint venture by and between the parties hereto.

10.2.       Notices. All notices under this Agreement shall be in writing and English language, and e-mail shall be considered as written notice. Notices shall be delivered to a party’s address in accordance with the Agreement (or in each such case such other address as the recipient may notify to the other parties for such purpose). The notices shall be deemed to be duly received:

a)     Company may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices sent by email will be deemed received 24 hours after they are sent.

b)    Customer may send notices pursuant to this Agreement to the Company contact channels available at qinematic.com/about, and such notices will be deemed received 72 hours after they are sent.

c)     if delivered by hand or sent by international overnight courier (with return or delivery receipt obtained) on the date of receipt by the recipient thereof (as set out in the courier receipt) if received prior to 5 pm (CET) and such day is a Business Day, and otherwise on the next Business Day

d)     if sent by registered mail, on the third day after posting.

In addition, Customer is on notice and agrees that Company will terminate the accounts of subscribers who are repeat copyright infringers. 

10.3.       Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

10.4.       Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

10.5.       Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

10.6.       No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

10.7.  U.S. Government Restricted Rights. The Software and Documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation. This Section 10.7 does not grant Customer any rights not specifically set forth in this Agreement.

10.8.  Bankruptcy Rights. The rights and licenses granted to Customer in Sections 2.1 (License), 2.3 (Documentation) above (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Company is subject to any proceeding under the United States Bankruptcy Code, and Company as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law. This Section 10.8 will not be construed to limit or restrict any right or remedy not set forth in this Section 10.8, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.

10.9.       Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

10.10.     Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

10.11.     Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

10.12.   Amendment. Company may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Company written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.

11. DISPUTES & GOVERNING LAW

11.1.       Choice of Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.

11.2.       Mediation. Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall  first be referred to Mediation in accordance with the Mediation Rules of the Stockholm Chamber of Commerce (the SCC Institute) and the parties by signing this agreement consent to such mediation and if the Mediation is terminated the dispute controversy or claim, contractual or non-contractual, arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be finally settled by arbitration administered by the SCC Institute. The place of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English unless otherwise agreed.

11.3.       Rules for arbitration. The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.

11.4.       Confidentiality. The Parties undertake and agree that all arbitral proceedings conducted with reference to Section 11.2 and Section 11.3 will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.

ADDITIONAL TERMS & CONDITIONS

Pricing as specified in Sales Agreement

Territory as specified in Sales Agreement