MOBILE APPLICATION & PLATFORM END USER LICENCE AGREEMENT 1 PLEASE READ THIS AGREEMENT CAREFULLY
1.1 By downloading and installing the App (as defined below), you agree to the terms of this end user licence agreement (this “agreement”) which will bind you. If you do not agree to the terms of this agreement, you will not be able to download the App. 1.2 Where a capitalised term is used in this agreement and not defined in clauses 1-16, it shall have the meaning given to it in clause 17.
2 WHO WE ARE AND WHAT THIS AGREEMENT DOES
3 SUPPORT AND CONTACTING US 3.1 If you want to learn more about the App or have any problems using it please take a look at the Documentation. 3.2 If you think the App is faulty or misdescribed or wish to contact us for any other reason please email our customer service team at firstname.lastname@example.org. 3.3 If we have to contact you we will do so by email, using the contact details you have provided to us.
4 WE DON’T GIVE BUSINESS CUSTOMERS ALL THE SAME RIGHTS AS CONSUMERS
For example, we don't compensate business users in the same way for losses. Where a term applies just to businesses or just to consumers, this is clearly stated. You are a business customer if you are buying products wholly or mainly for use in connection with your trade, business, craft or profession, even if you are an individual.
5 LICENCE AND RESTRICTIONS
5.1 In return for your agreeing to comply with this agreement and the payment by you of any applicable Fees, you may: 5.1.1 download the App and the Documentation on to your mobile device and view, use and display, and permit your Authorised Users to view, use and display, the App on such device; and 5.1.2 receive and use any free supplementary software code or update of the App incorporating "patches" and corrections of errors as we may provide to you, in accordance with the Permitted Purpose and the restrictions set out in this agreement. 5.2 You agree that you will: 5.2.1 only use the App for the Permitted Purpose; 5.2.2 comply with the Acceptable Use Policy [LINK]; 5.2.3 comply with the Documentation and other reasonable instructions of Move AI; 5.2.4 not rent, lease, sub-license, loan, provide, or otherwise make available, the App in any form, in whole or in part to any person without prior written consent from us; 5.2.5 not copy the App or Documentation, except as part of the normal use of the App or where it is necessary for the purpose of back-up or operational security; 5.2.6 not translate, merge, adapt, vary, alter or modify, the whole or any part of the App or Documentation nor permit the App or any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use the App on devices as permitted in this agreement; 5.2.7 not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App nor attempt to do any such things; and 5.2.8 comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the App. 5.3 Your use of the App is subject to the following storage and usage limits: 5.3.1 you may produce a maximum of 30 minutes of Output every calendar month; and 5.3.2 each individual Output shall be a maximum for 4 minutes in length, (together, the “Usage Limits”). 5.4 You agree that your use of the App will be reasonable and not excessive and consistent with the Usage Limits. We reserve the right to take action against you if we become aware that you are engaging in Excessive Use. We will determine based on reasonable information available, what constitutes Excessive Use, and you agree that our determination is final and binding. If we reasonably believe that you have been engaging in Excessive Use, we may: 5.4.1 contact you and require that you to cease or alter your behaviour/actions which have resulted in Excessive Use immediately; or 5.4.2 immediately suspend, modify, restrict, block access to or limit your use of the App, and notify you in writing that we have done so. If you repeatedly breach this clause or continue with Excessive Use after such notice, we may, without notice, permanently end your rights to use the App in accordance with clause 14. 5.5 Where you provide or make available any aspect of the App or any Output to a third party, you: (a) shall (in the case of the App) only be entitled to do so where expressly permitted under this agreement; (b) do so at your own risk and are solely responsible for all arrangements with that third party and for any use of the App or the Outputs by that third party; and (c) where you are a business user, shall indemnify and hold Move AI harmless against any losses, liabilities, damages, costs or expenses arising from or in connection with any claim made by that third party against Move AI in connection with this agreement. 5.6 You are liable for all acts and omissions of your Authorised Users. 5.7 The use of the App is dependent on certain third-party infrastructure which we do not control. As such, we do not warrant that the use of the App will be uninterrupted or error-free.
6 YOUR OTHER OBLIGATIONS
6.1 You shall: 6.1.1 comply with all applicable laws with respect to your obligations under this agreement; 6.1.2 obtain and shall maintain all necessary licences, clearances, consents, approvals and permissions necessary for: (i) you and, where applicable, your Authorised Users to receive the App and perform their obligations under this agreement; and (ii) the use by Move AI of Your Materials and the Outputs in the performance of our obligations and exercise of our rights under this agreement; 6.1.3 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the App, and Move AI shall not be liable for any problems, conditions, delays, delivery failures or any other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and 6.1.4 at all times act in good faith towards Move AI and not make any defamatory or derogatory statements about, or take part in any activities in any manner which might be considered to be derogatory or detrimental to the reputation of Move AI.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 Move AI owns and shall retain ownership of all Intellectual Property Rights in and to the App and the Documentation and any and all data and know-how obtained or developed in connection with the provision of the App and the Documentation, including any feedback/comments provided by you or on your behalf in relation to the App and the Documentation. You hereby acknowledge that you do not, other than as expressly stated in this agreement, obtain or claim any right, title or interest in or to (including any right to use) the App or such data, know-how or feedback/comments. 7.2 As between the parties, you own and shall retain ownership of all Intellectual Property Rights in and to Your Materials and the Outputs and you hereby grant to Move AI a worldwide, royalty-free, fully paid-up, non-exclusive licence to copy, reproduce, adapt, edit and otherwise use Your Materials and the Outputs to the extent reasonably required for the provision and development of the App and related support services. Move AI hereby acknowledges that it does not, other than as expressly stated in this agreement, obtain or claim any right, title or interest in or to (including any right to use) Your Materials or the Outputs. 7.3 You warrant that Your Materials and the Outputs (and their use by Move AI in accordance with this agreement) do not and will not infringe the rights (including Intellectual Property Rights) of any third party. Where you are a business user, you shall indemnify and hold Move AI harmless against any losses, liabilities, damages, costs, expenses or other claims arising from or in connection with any breach of this clause 7.3.
8 FREE TRIAL, FEES, AND PAYMENT
8.1 The Fees will be charged to your Payment Method on the specific payment date indicated on your account page. The length of your billing cycle will depend on the type of subscription that you choose when you signed up for the paid service. You authorise us to charge the Payment Method to pay the applicable Fees. 8.2 If you fail to pay any portion of the Fees by the applicable due date, Move AI may (without prejudice to any other rights and remedies available to it): 8.2.1 suspend provision of the App until the relevant Fees are paid; and/or 8.2.2 charge interest on the unpaid amount (after as well as before any judgment) from the due date until payment is received (both dates inclusive) at the rate of 3% above the base rate of Barclays Bank plc from time to time, such interest to be calculated on a daily basis and payable on demand. 8.3 All amounts payable by you pursuant to this agreement shall be made without any deduction, withholding, counter-claim or set off. 8.4 Move AI may amend the Fees at the end of your current Subscription Period by giving you at least 30 days’ notice. You will have the right to cancel your account before any changes apply.
8.5 From time to time, we may offer the App for a trial period free from Fees (a “Free Trial Offer”). The period of the free trial will be specified in the applicable Free Trial Offer and will commence from the moment that you activate such trial period (the "Free Trial Period"). We will notify you upon the expiry of the Free Trial Period and give you the option to continue using the App on a paid-for basis. If you decide that you do not want to become a paying user of the App upon the lapse of the Free Trial Period, you have to terminate your use of the App and delete if from your device. You may only use a Free Trial Offer once. We reserve the right, in our absolute discretion, to withdraw or modify a Free Trial Offer at any time without prior notice and with no liability.
9 CONSUMER RIGHT TO CANCEL
9.1 If you are a consumer, you have a legal right to change your mind about your subscription purchase and receive a refund of what you paid for it, subject to the conditions set out in this section. 9.2 The deadline for changing your mind is 14 days after your subscription is confirmed. If you wish to cancel, you must let us know in this time by contacting our customer service team at email@example.com. 9.3 We will refund you as soon as possible and within 14 days of you telling us you've changed your mind. You have to pay for any services you received before you change your mind. This means we will not refund you for the period between the start of your subscription and the date you notify us that you wish to cancel. 9.4 This section and these rights do not apply to business users.
10 CHANGES TO THE APP
10.1 From time to time we may automatically update the App to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons. 10.2 If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App.
11 CHANGES TO THIS AGREEMENT
11.1 We may need to change this agreement to reflect changes in law or best practice, to deal with additional features which we introduce, or other business changes. 11.2 We will give you at least 30 days’ notice of any change by sending you an email with details of the change. 11.3 If you do not accept the notified changes you will not be permitted to continue to use the App.
12.1 In this Clause, “Confidential Information” means any information that is clearly labelled or identified as confidential or ought to reasonably be treated as being confidential. Confidential Information includes the terms of this agreement and the App and excludes any information which: 12.1.1 is or becomes publicly known other than through a breach of this agreement; 12.1.2 was in the receiving party’s lawful possession before the disclosure; 12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; 12.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or 12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 12.2 Each party will hold the other party’s Confidential Information in confidence and not make the other party’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality. Neither party will use the other party’s Confidential Information for any purpose other than the implementation of this agreement. 12.3 Each party will take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its directors, employees, representatives, agents and sub-contractors in breach of the terms of this agreement.
13 DATA PROTECTION
14 ENDING THIS AGREEMENT
14.1 We may terminate this agreement and your use of the App with immediate effect by giving you notice in writing if you: 14.1.1 commit any material breach of this agreement, which is not remedied within 30 days of written notice from the non-breaching party to the breaching party; 14.1.2 breach clause 5.3; or 14.1.3 suffer an Insolvency Event. 14.2 We may also terminate this agreement and your use of the App at any time without cause with immediate effect. We may do this if we are closing the App entirely, for example. If we exercise this right, we will refund you any prepaid Fees up to the effective date of termination. 14.3 You may terminate this agreement at the end of your Subscription Period. If you cease using the App within your Subscription Period, you will not be entitled to a refund for any unused period of time. 14.4 Your Subscription Period will automatically renew upon expiry. We will notify you 30 days prior to the end of your Subscription Period. If you do not want to renew, you must cancel your subscription on your account page and this agreement will end on the expiry of your Subscription Period. 14.5 Upon expiry or termination of this agreement for any reason you shall: (i) immediately cease to be entitled to use the App; (ii) delete or remove the App from all devices in your possession and immediately destroy all copies of the App which you have and confirm to us that you have done this; and (iii) within 30 days after the date of termination pay all outstanding Fees due to Move AI. 14.6 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect. 14.7 Termination of this agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination.
15 LIMITATION OF LIABILITY
15.1 You hereby acknowledge that complex software is never wholly free from defects, errors and bugs and relies on the availability of third-party services. Among other things, the operation and availability of the systems used for accessing the App, including public telephone services, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the App. Subject to the express provisions of this agreement, the App is provided on an “as is” basis and Move AI gives no warranty that the App will be uninterrupted or wholly free from defects, errors and bugs or that the information obtained by you will meet any particular requirements. 15.2 The App has not been developed to meet your individual requirements. Please check that the facilities and functions of the App (as described on the app store site and in the Documentation) meet your requirements. 15.3 Nothing in this agreement shall operate to exclude, limit or restrict either party’s liability for death or personal injury resulting from negligence or any fraud or fraudulent misrepresentation. Our liability to you if you are a consumer user: 15.4 We are responsible for losses you suffer caused by us breaking this agreement unless the loss is: 15.4.1 Unexpected. It was not obvious that it would happen and nothing you said to us before we accepted your order meant we should have expected it (so, in the law, the loss was unforeseeable). 15.4.2 Caused by a delaying event outside our control. As long as we have taken the steps set out in the clause 16.3, we are not responsible for delays outside our control. 15.4.3 Avoidable. Something you could have avoided by taking reasonable action. For example, damage to your own digital content or device, which was caused by digital content we supplied and which you could have avoided by following our advice to apply an update or by correctly following the installation instructions or having the minimum system requirements advised by us. 15.4.4 A business loss. Our liability for any loss you suffer in connection with your trade, business, craft or profession is limited, as described in our liability to business users below. Our liability to you if you are a business user: 15.5 Except as set out in this agreement and to the extent permitted under applicable law, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) common law or (iii) otherwise, in relation to the App are excluded. 15.6 Subject to clause 15.3, we are not liable to you for any loss of profit, revenue, data, goodwill, business opportunity or indirect or consequential loss or damage suffered by you. 15.7 Subject to clause 15.3, Move AI’s liability to you whether in contract, tort (including negligence) or otherwise arising out of or in connection with the App or this agreement shall not exceed the Fees paid by you to Move AI under this agreement in the 12 months prior to the date that such liability arises.
16.1 This agreement (and any documents referred to herein) constitutes the whole agreement between you and Move AI and any other terms, conditions, performance criteria, guarantees or prior representations whatsoever (whether written or oral) shall be of no effect unless expressly incorporated herein. Each party acknowledges that it has not entered into this agreement in reliance on any statement or representation of the other party except to the extent that such statement or representation has been incorporated in this agreement. Nothing in this agreement shall limit or exclude either party’s liability for fraud or fraudulent misrepresentation. 16.2 This agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in this agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf. 16.3 We shall not be liable for any failure to fulfil any of our obligations under this agreement insofar as such failure is due to a Force Majeure Event. In such circumstances, we shall notify you, and shall: (a) use all reasonable endeavours to overcome the Force Majeure Event; and (b) fulfil all of our obligations upon cessation of the Force Majeure Event. If we are prevented or materially hindered from satisfying a deadline as a result of a Force Majeure Event, such deadline shall be extended by the duration of the Force Majeure Event. 16.4 You acknowledge and agree that Move AI may publicise in its promotional and/or marketing materials that it is working with you. 16.5 If any provision of this agreement (or any part thereof) is held to be illegal, void, invalid or unenforceable, the validity and enforceability of the remainder of this agreement in that jurisdiction shall not be affected. 16.6 No failure to exercise by Move AI, nor any delay in the exercise by Move AI, of any right, power, privilege or remedy under this agreement shall impair, or operate as a waiver of, such right, power, privilege or remedy. 16.7 The parties agree that a person who is not a party to this agreement has no right under The Contracts (Rights of Third Parties) Act 1999 (“Third Parties Act”) to enforce any term of this agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Third Parties Act. 16.8 This agreement and any non-contractual obligations connected to it shall be governed by the laws of England. If you are a consumer then, wherever you live, you can bring claims against us in the courts of England and Wales and if you live elsewhere, you may also be able to bring claims against us in the courts of the country you live in (subject to local applicable laws). If you are a consumer, we can claim against you in the courts of the country you live in. If you are a business, you irrevocably agree to submit all disputes arising out of or in connection with this agreement to the exclusive jurisdiction of the courts of England and Wales.
17 Definitions and Interpretation
17.1 In this agreement, the following terms shall have the following meanings: Authorised Users means (i) for business users, your directors, employees, agents, contractors and other workers who are end users of the App, and (ii) for consumer users, you; Excessive Use means use of the App which is not reasonable and which significantly exceeds normal usage patterns, including without limitation: (i) use in excess of the Usage Limits; (ii) use in a manner that consumes excessive bandwidth; (iii) use which affects our core equipment; (iv) use which affects the overall performance of the App; (v) use which may compromise our ability to continue to provide the App to you and/or other users; and/or (vi) use which directly or indirectly causes a disruption in the network integrity of our network. Fees means the fees payable for the App as notified by Move AI from time to time; Force Majeure Event means all events beyond the control of the affected party including war, hostilities, invasion, riot, civil commotion, royal bereavement, strikes, compliance with any governmental (or other competent authority) order, rule, regulation or direction, lock-outs, epidemic, pandemic (including COVID-19), limitations on third party infrastructure (included AWS cloud storage), failure of a utility service or telecommunications network, fire, flood, storm or other natural catastrophe; Intellectual Property Rights means any current and future intellectual property rights, including: (a) copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; (b) all intangible rights and privileges of a nature similar, analogous or allied to any of rights listed in (a); and (c) in every case in any part of the world and whether or not registered, including in relation to any of rights listed in (a) and (b): (i) all granted registrations and all applications for registration; (ii) all renewals, reversions or extensions; (iii) the right to sue for damages for past infringement; and (iv) all forms of protection of a similar nature which may subsist anywhere in the world; Insolvency Event occurs when a party: (i) ceases, or threatens to cease, to carry on the whole or a substantial part of its business; (ii) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation; (iii) is the subject of the commencement of any insolvency proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days after presentation); (iv) has an administrator, an administrative receiver or trustee appointed over all or any of its assets; or (v) where you are an individual, you are the subject of a bankruptcy petition, application or order; Outputs means the materials (including audio-visual materials) and content that are generated by your use of the App; Payment Method means the method of payment you provide to Move AI; Permitted Purpose means the upload and extraction of motion from video by you, and the importation of the resulting Outputs into the visualisation or ingestion engine nominated by you; Subscription Period means the period of your subscription notified to you when you signed up, usually 12 months, commencing on the date you sign up to the App; Usage Limits has the meaning given to it in clause 5.3; and Your Materials means all audio-visual material, data, content, documents and other materials in any form (whether owned by you or a third party), which are provided by or on behalf of you to Move AI in connection with the App or which are otherwise uploaded or incorporated by you or on your behalf into the App. 17.2 The parties agree that: 17.2.1 clause headings used in this agreement are inserted for ease of reference only and shall not affect construction; 17.2.2 references to the word include or including (or any similar term) are not to be construed as implying any limitation; and 17.2.3 references to statutory provisions or enactments shall include references to any amendment, modification, extension, consolidation, replacement or re-enactment of any such provision or enactment.