Last Updated: April 3rd 2020

Komotion End User Licence Agreement (EULA)

This is a legally binding software licence agreement (the “Licence”) between the following parties:

(1) Komotion Ltd, Boho Five, Bridge Street East, Middlesbrough, TS2 1NY, United Kingdom (“Komotion”, “we” or “us”). We are a company registered in England and Wales with company number 10272023; and

(2) You, being a user of the Komotion Software as defined below.

Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.

By clicking "accept agreement" when you first install the Software, you agree to be bound by the provisions of this EULA. If you do not agree to be bound by the provisions of this EULA, you must click "Cancel" during the installation process, click "Yes" in the cancellation dialog prompt, promptly return the Software (on the media upon which the Software was provided, if applicable) to your supplier and irrevocably delete from all computer systems.

By agreeing to be bound by this EULA, you further agree that any person you authorise to use the Software will comply with the provision of this EULA.

AGREEMENT

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this EULA:

"Charges" means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA and the Licence Type(s) that require payment;

"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;

"Effective Date" means the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor;

"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licence Activation Date" means the calendar day that the Term starts for a Licence Type;

"Licence Type" means the Software is provided to the User subject to specific terms and conditions that further define the scope of the User's permitted Use of the Software based on the type of licence granted. The License Types, and the terms and conditions applicable to each License Type, are set out in Appendix A to this Agreement;

"Licensor" means Komotion Ltd, a company incorporated in England and Wales (registration number 10272023) having its registered office at Boho Five, Bridge Street East, Middlesbrough, Cleveland, TS2 1NY;

"Minimum Term" means, in respect of this EULA, the period of a valid Software Licence Type the User has for the Software, or a Trial Licence Type that begins on the Effective Date for its defined period;

"Open Source Software" means the open source software that may be accompanied with the Software (in source code and/or executable forms);

"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means any software provided with this Licence, such as by way of download, or through any other media or format, including any software, code, interfaces or Content and whether owned by us or by a third party, such as the Komotion for Maya plug-ins, Komotion for Max plug-ins, and Komotion Software installers;

"Software Defect" means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the User or any person authorised by the User to use the Software;

(b) any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;

(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

"Software Specification" means the specification, requirements, and pre-requisites for the Software set out in the Documentation;

"Source Code" means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Update" means a hotfix, patch or minor version update to the Software;

"Updated Agreement" means subsequent licensing of the Software that may be subject to updated terms and conditions that differ from those set out in this Agreement;

"Use", "Used" or "Using" means to install, activate, execute, run, display, view and operate the Software;

"User" means the person to whom the Licensor grants a right to use the Software under this EULA, who is: (i) the individual accepting this EULA, if the individual is licensing the Software for personal use or use as a sole proprietor; or (ii) the business, institution, organisation or other entity on whose behalf the individual accepting this EULA is acting; and

"User Indemnity Event" has the meaning given to it in Clause 9.1.

2. Term

2.1 This EULA shall come into force upon the Effective Date.

2.2 This EULA shall continue in force until terminated, upon which this EULA shall terminate automatically, subject to termination in accordance with Clause 11 or any other provision of this EULA.

2.3 Extensions to the Term of the Licence may be granted by the Licensor.

3. Licence

3.1 Subject to payment of the applicable fees and continuous compliance with the terms and conditions of this Agreement, the Licensor hereby grants to the User from the date of supply of the Software to the User a limited, non-transferable and non-exclusive licence to install and Use the Software, subject to the terms and conditions of the applicable License Type, and subject to the limitations and prohibitions set out and referred to in this Clause 3.

3.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1 without the prior written consent of the Licensor.

3.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 3 shall be subject to the following prohibitions:

(a) the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b) the User must not alter, edit or adapt the Software; and

(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

3.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.

3.5 An Updated Agreement will be indicated by a change to the "Last Updated Date" defined at the top of this Agreement. If the User obtains additional Licenses to Use the Software without having to accept an Updated Agreement, this Agreement will continue to apply to the User's Use of the Software under such Licenses.

3.6 The Open Source Software that may be integrated with the Software is distributed under and subject to the terms and conditions of the applicable open source licenses and notices set out at: https://www.komotion.co.uk/komotion-licenses

4. Source Code

4.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

5. No assignment of Intellectual Property Rights

5.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

6. Charges

6.1 The User shall pay the Charges to the Licensor in accordance with this EULA.

6.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.

7. Warranties

7.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

7.2 The Licensor warrants to the User that:

(a) the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs.

7.3 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not breach any laws, statutes or regulations applicable under English law.

7.4 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

7.5 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:

(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or

(b) procure for the User the right to use the Software in accordance with this EULA.

7.6 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

7.7 All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

8. Acknowledgements and warranty limitations

8.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

8.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

8.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

8.4 The User acknowledges that for successful installation and activation of the Software and a Software licence or Software trial, a valid and activated licence for the applicable version of Autodesk Maya is a key pre-requisite that must be present.

8.5 The User acknowledges that a working internet connection is required to activate Software licences and Software trials, and that automated checks are performed by the Software to verify the status of the Software activation at regular intervals.

8.6 The User acknowledges that the Software Specification clearly states that the Software cannot be used in a Virtual Machine (VM) environment and/or in a Hyper-V environment, unless permission is otherwise granted by the Licensor.

8.7 The User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

9. Indemnities

9.1 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA (a "User Indemnity Event").

9.2 The Licensor must:

(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;

(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;

(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and

(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,

and the User's obligation to indemnify the Licensor under Clause 9.1 shall not apply unless the Licensor complies with the requirements of this Clause 9.2.

9.3 The indemnity protection set out in this Clause 9 shall be subject to the limitations and exclusions of liability set out in this EULA.

10. Limitations and exclusions of liability

10.1 Nothing in this EULA will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law,

and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this EULA:

(a) are subject to Clause 10.1; and

(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

10.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

10.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

10.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.

10.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

10.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

10.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

11. Termination

11.1 The Licensor may terminate this EULA by giving to the User not less than 7 days' written notice of termination, expiring after the end of the Minimum Term.

11.2 The User may terminate this EULA by giving to the Licensor not less than 7 days' written notice of termination, expiring after the end of the Minimum Term.

11.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party commits any breach of this EULA, and the breach is not remediable;

(b) the other party commits a breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c) the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

11.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA); or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

11.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a) any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Licensor has given to the User at least 30 days' written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 11.5.

12. Effects of termination

12.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.1, 9, 10, 12, 13 and 14.

12.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

12.3 Within 30 days following the termination of this EULA for any reason:

(a) the User must pay to the Licensor any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA; and

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA, without prejudice to the parties' other legal rights.

12.4 For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.

12.5 Within 7 Business Days following the termination of this EULA, the User must:

(a) irrevocably delete from all computer systems in its possession or control all copies of the Software

13. General

13.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

13.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

13.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

13.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to any third party. The User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.

13.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

13.6 Subject to Clause 10.1, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

13.7 This EULA shall be governed by and construed in accordance with English law.

13.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

14. Interpretation

14.1 In this EULA, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

14.2 The Clause headings do not affect the interpretation of this EULA.

14.3 References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

14.4 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Appendix A - Terms and Conditions of Licence Types

Trial Licence Type - The Software may only be used for non-commercial purposes. For each Licence issued, the User may install the Licence and Use the Software on a single Workstation. The Term of the Licence is 30 days from the Effective Date, or as stated in a separate agreement with the Licensor. At certain points in time, the Term of this may be 60 days or 90 days from the Effective Date.

Extended Trial Licence Type - The Software may only be used for non-commercial purposes. For each Licence issued, the User may install the Licence and Use the Software on a single Workstation. The Term of the Licence is 60 days from the Effective Date, or as stated in a separate agreement with the Licensor. At certain points in time, the Term of this may be 90 days or 120 days from the Effective Date.

‌Education Licence Type - The Software may be used for commercial and non-commercial purposes. The Licence Activation Date starts from either: (i) the selected Term duration upon purchase of the applicable Licence; or (ii) as stated in the purchase confirmation; or (iii) as stated in a separate agreement with the Licensor.

‌Workstation Licence Type - The Software may be used for commercial and non-commercial purposes. Only the User can use the Software. For each Licence issued, the User may install the Licence and Use the Software on a single Workstation, unless otherwise agreed with the Licensor. The Licence Activation Date starts from the date of purchase, and the termination date is either: (i) the selected Term duration upon purchase of the applicable Licence; or (ii) as stated in the purchase confirmation; or (iii) as stated in a separate agreement with the Licensor.

S‌tudent Licence Type - The Software may only be used for non-commercial purposes. For each Licence issued, the User may install the Licence and Use the Software on a single Workstation, unless otherwise agreed with the Licensor. The Term starts from the date the Licence is allocated, and the termination date is either: (i) the selected Term duration upon purchase of the applicable Licence; or (ii) as stated in the purchase confirmation.