End-User License Agreement

This End-User License Agreement (the “Agreement”) is a legal contract between you, either an individual or legal entity (“LICENSEE”), and CRYOMEN OÜ (“CRYOMEN”).

CRYOMEN — GRANTS YOU A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT.

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING OR USING THIS SOFTWARE AND RELATED DOCUMENTATION (THE “DOCUMENTATION”). CRYOMEN OWNS ALL INTELLECTUAL PROPERTY IN THE SOFTWARE.  THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY INSTALLING, COPYING OR OTHERWISE USING THIS SOFTWARE WHATSOEVER YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT WANT TO BE BOUND BY ITS TERMS, DO NOT INSTALL, COPY OR USE THIS SOFTWARE, CEASE USING THIS SOFTWARE AND REMOVE ALL INSTALLED COPIES AS WELL AS ALL INSTALLATION PACKAGES AND FILES.

TERMS AND DEFINITIONS

The terms and definitions described below are to be used in this Agreement as well as in the course of use of the Software:

А) Software – a software development kit (SDK), which enables the Licensee to create Final products and includes the following main software components (including updates, upgrade and other modifications of software components, developed and made available at the discretion of CRYOMEN):

  1. Core — a core software component, among other tasks, providing real-time 3D visualization, consisting of Runtime components in the form of Release builds and Debug builds in object code format. It also includes an application programming interface (API);
  2. Tools — a set of programs intended for development of Final products;
  3. Samples — a collection of source and content files representing brief examples of use of Software, they do not constitute a fully self-contained or a fully functional product and are used as examples;
  4. Demos — fully self-contained or fully functional products, which also include the Content intended and provided solely for demonstration of Software’s features and its proper use.
  5. Content — everything included in the Samples or Demos except for the object code (including, but not limited to, graphics, audio and text materials, digital models).

Under this Agreement, within the period of 12 (twelve) months from the date of full payment for the License, CRYOMEN shall provide with the access to Software updates within the purchased Edition and undertake the reasonable efforts to update the Documentation correspondingly. Software License can be renewed if necessary, for latest updates.

B) Edition — a variant of the Software (SDK), having a different set of features. The list of SDK editions with corresponding features is published on the website.

C) Seat — use of the Software by a single Developer at a single moment of time.

D) Developer — a user of the Software developing Final products.

E) Final product — a specialized software solution, developed using the SDK and including a part of Release builds of the Core. Such inclusion shall entail no alienation of rights to the Release build of the Core, Core components and Core as a whole, such component can be used as a part of a Final product with the restrictions imposed by this Agreement. Inclusion of Content, Tools, Documentation, Debug builds as well as any source code from the SDK is prohibited.

F) End user — person using the Final product on any legal basis.

G) You, your or yourself (whether or not capitalized in this Agreement) — you as an individual or the legal entity exercising rights under this Agreement through you. For legal entities, “you,” “your” and “yourself” include any entity that controls, is controlled by, or is under common control with you, where “control” means the power, direct or indirect, to cause the direction or management of the entity in question, whether by contract or otherwise, or ownership of 50% or more of the outstanding shares or beneficial ownership of the entity in question.

1. License

1.1. Grant of license

CRYOMEN hereby grants to you, and you accept, a non-exclusive, nontransferable license to use the Edition of the Software (SDK) selected by you when filling in an application form at the website (in effect at the moment of payment for a Major SDK Release) in machine-readable, object code form only, as an installation package intended for development of Final products on a number of workstations, to the extent, and using methods, permitted by this Agreement. All rights not expressly granted to the Licensee by this Agreement are reserved by the Company. The Software (SDK) shall not be used except as expressly granted or permitted by this Agreement.

The time of delivery of the Software to you for use under the terms and conditions of this Agreement shall be the time when you are granted access to the Software installation package (assignment of the right to use the Software by granting access) as follows: sending user account information (login, password) and network address to provide access for downloading an installation package to the email address provided when filling in the Software purchase application form at the website. At this moment CRYOMEN grants, and the Licensee accepts the right to use the Software, even in case if the Software was not actually used afterwards in any form whatsoever.

1.2. Editions and versions of the Software

The Software under this agreement also means all updates, upgrades, improvements, enhancements, modifications, bug fixes, amendments and add-ons to SDK made by CRYOMEN and made available to you as a Licensee via electronic communication channels (including, but not limited to the website).

1.3. Scope of use and restrictions

1.3.1. You may use 1 (one) copy of the Software on a single or several workstations (depending on the purchased Edition) during the term of this Agreement within the license territory. Your license enables you to use the Software under the terms and conditions of the Edition selected by you on the website.

Under this Agreement the use of the Software means granting you the rights to:
– develop Final products using the Software;
– include a part of Release builds of the Core (object code of the Core’s Release build) as a part of the Final product to the extent permitted by this Agreement;
– distribute the object code of Core’s Release build as a part of the Final product;
– use the Software by a single organization or a single Developer (depending on the purchased Edition of the Software);
– use the Software on a number of workstations limited by the Edition of the Software.
– receive updates of the Software and Documentation as well as technical support as contemplated by this Agreement.

1.3.2. Under this Agreement you are prohibited from:
– distribution of the Software (or its part) in any form other than those specified under Section 1.3.1 above;
– complete or partial sublicensing of the Software in any form whatsoever (except as it is permitted by this Agreement);
– distribution (as a part of Final products) of Debug components as well as other components that are not permitted to be used as a part of the Final product under this Agreement;
– reverse engineering and other forms of use no expressly permitted under this Agreement;
– performing activities aimed at complete or partial copying of the Software (emulation, decompiling, disassembly, decoding, modification and other similar actions with the Software, except as expressly permitted under this Agreement);
– leasing or renting your rights regarding the Software and Documentation under this Agreement;
– publication of the Software in the public domain including transmission of a copy of the Software or any of its components over the Internet, granting access (including terminal access) to the Software to several users simultaneously unless explicitly permitted by the purchased License;
– performing any other actions with the Software aimed at obtaining information about implementation of algorithms used in it, create derivatives or modifications using or on the basis of the Software except for the cases of legitimate use of parts of the Software in accordance with terms and conditions of this Agreement.

1.3.3. Under this Agreement when using the Software and developed Final products you shall:
– include the phrase “powered by CRYOMEN Technology” in the documentation to Final products;
– ensure that the website providing access to the Final product (if any) contains the word “CRYOMEN “with the hyperlink to https://www.cryomen.com;
– grant CRYOMEN the right to mention you as a developer (a person or a legal entity) mention your Final products in the Company’s press and marketing materials (including: trademark and/or trade name, Company/Developer name, Final product name);
– ensure that the License is used only by the employees of the legal entity or by a person – without the right to engage a third party; any assignment of this Agreement or any right under this Agreement without the prior written consent of the Company shall be void.
– be entitled to enter into agreements with End users of Final products under the terms and conditions no less restrictive than the ones contained herein.

1.4. Term and Territory

1.4.1. The Agreement is effective from the date of Licensee’s payment for the purchased License (the right to use the corresponding Software) unless otherwise provided herein. The license term comprises 10 (ten) years, unless otherwise provided herein.

1.4.2. In case if you breach any of the restrictions or other requirements regarding the use of the Software described by the current version of this Agreement available at the website, CRYOMEN reserves the right to restrict your use of the Software. The Company shall send a notification to Licensee’s address provided in the Software purchase application form or informs the Licensee in any other form deemed suitable by the Company.  If the breach is not cured within 10 (ten) days upon sending such notification, the Agreement shall be deemed terminated, and the Licensee shall immediately remove all copies of the Software and cease and desist from using it in any form whatsoever.

1.4.3. You may terminate this Agreement at any time by uninstalling and removing the Software from your computer/device. CRYOMEN reserves the right to terminate this Agreement without notice to you in case if you breach or fail to comply with any of the terms and conditions described herein.

1.4.4. CRYOMEN shall not be financially liable as well as it shall not be liable for any loss of profit or direct damages due to the termination of the License and shall not refund any fees (either in part or in full) already paid for use of the Software. CRYOMEN shall not be liable for any damages or expenses incurred due to the expiration of the license term. CRYOMEN shall not be liable for any damages or harm the Licensee as well as third parties have incurred or may incur due to misinterpretation of or a failure to understand the terms and conditions of this Agreement and/or documentation governing the use of the Software.

1.4.5. There are no territory restrictions regarding the use of the Software.

1.5. Updates, replacement, trial version, other conditions.

1.5.1. Under this Agreement you shall have the right to update the Software if and when they are released for a period of 12 (twelve) months — from the date of entering into the Agreement within the purchased Edition of the Software.

1.5.2. You agree that some updates of the Software provided by CRYOMEN are obligatory. In case of failure to install any of such updates the Software may function improperly of cease to function completely. In this case CRYOMEN sends a reminder about the obligatory character of such updates to the Licensee’s address provided in the Software purchase application form or informs the Licensee in any other form at the discretion of CRYOMEN. After an update or modification of the Software current version of the Agreement regarding the modified or updated Software is completely replaced by a new one.

1.5.3. You are granted
– access to the official forum within the term of this Agreement, however, CRYOMEN does not guarantee any fixed time of responding to your requests and in case of your inappropriate actions shall be entitled to terminate your access at any time at its discretion.
– access to on-line documentation within the term of this Agreement, as well as guaranteed update for the period of 12 (twelve) months within the purchased Edition of the Software. After the expiry of the specified period updates are provided separately on the payable basis at the discretion of CRYOMEN.

2. Intellectual property and confidentiality

2.1. Use Reporting, License Violations and Remedies

CRYOMEN reserves the right to gather data on IP addresses and other information deemed relevant, to ensure that its products are being used in accordance with the terms of this Agreement. Any unauthorized use shall be considered by CRYOMEN to be a fundamental breach of this Agreement and will result in immediate termination thereof. CRYOMEN also reserves the right to gather Software crash reports. Such reports shall not contain any personal data.

2.2. Proprietary Rights to Software and Trademarks

You acknowledge that the Software and Documentation are proprietary to CRYOMEN and are protected under international copyright law and other treaties. You also acknowledge and agree that, as between you and CRYOMEN, CRYOMEN owns and shall continue to own all exclusive (including possession, use and disposal) right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any exclusive property rights to the Software and Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks used by CRYOMEN in connection with the Software or with services rendered by it are marks owned by CRYOMEN. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.

2.3. Confidentiality and data collection

2.3.1. You shall ensure that the number of Developers using the Software does not exceed the total number limited by the License in use. You shall cooperate with and assist CRYOMEN in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any part thereof.

2.3.2. To provide technical support, CRYOMEN requests and receives from Licensees files containing the data protected and treated by CRYOMEN as confidential which may include personal data of the Licensee/Licensee’s employees. The Licensee hereby expressly grants CRYOMEN the right to transfer, collect, keep, or otherwise process the following personal information:  ID of user account at the website, IP-address, release number and Edition of the Software, hardware configuration, operating system version, number of runs of the Software, information about the Licensee’s Software settings used and Software usage sessions.

2.3.3. Licensee’s email address may be used for sending information messages, news, and press-releases from CRYOMEN.

2.4. Limited License Grant

2.4.1 The license granted to you in this Agreement shall not be construed as granting a license to the software in form of Sources. All other rights, and all title and interest in software in form of Sources, or rights in patents, copyrights, and trade secrets in software in form of sources, including the copies delivered to you by use of the Software, shall at all times remain the property of CRYOMEN. In particular, you shall not acquire any rights in or license to, express or implied, patents or Intellectual Property owned or controlled by CRYOMEN with respect to software in form of Sources.

2.5. Warranties and Liability

2.5.1 Save as expressly set out in this Agreement, CRYOMEN does not make any warranty, express or implied (including any warranty implied by law).

2.5.2 CRYOMEN warrants that it does not hold Intellectual Property rights to third party software, tools, sources or binaries provided that;

  • these are derivatives of the Software in the end-user products; or
  • are distributed or packed with the Software.

2.5.3 CRYOMEN represents that, to the best of its knowledge, the software, including software in the form of sources, does not infringe on any valid and enforceable Intellectual Property Right of any third party.

2.5.4 You represent and warrant to CRYOMEN that (i) It is your responsibility to comply with third party license terms applicable to your use of third-party software (including open source software) that may accompany CRYOMEN software; and (ii) ensure that your use of third-party software will not infringe the Intellectual Property Rights of any third party.

3. Indemnification

You will, at your own expense, indemnify and hold CRYOMEN, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable legal fees (collectively, “Claims”), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.

4. Disclaimer

4.1. THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS”, AND CRYOMEN DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, CRYOMEN EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEES REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.

4.2. CRYOMEN shall not be liable for any consequences resulting from the server maintenance caused by any external factors and/or acts of third persons beyond the control of CRYOMEN, force majeure events etc.

4.3. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL CRYOMEN BE LIABLE TO YOU OR ANY AFFILIATED PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.

4.4. By accepting this simple non-exclusive license, you shall be fully liable for validity and correctness of the data about you as a Licensee provided by you, including the cases when a third-party gains access to the Software at your expense. CRYOMEN shall not be liable whatsoever in case if a third-party gains access to the Software. You must take all necessary measures to prevent the disclosure of your login and password as well as the use of the Software by any third party.

5. General terms

5.1 Governing Law

This Agreement shall be construed and interpreted in accordance with Estonian law. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the appropriate local and international laws. Any dispute, controversy or claim arising out of or relating to this Agreement, including without limitation, the breach, termination, or invalidity hereof, shall, on the written demand of either Party delivered to the other Party, be determined and settled by arbitration in accordance with the UNCITRAL Arbitration Rules in effect on the date of this Agreement.

5.2. Severability

If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.

5.3. Headings

The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

5.4. Non-waiver

The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.

5.5. Transfer of License

During the ordering process, you will be asked to select the type and quantity of license(s) you require:

  • A Named User License, which permits the Software to be used by one specifically named individual person.
  • A Company Seat License, which permits the Software to be installed and used on a per-seat basis within an organisation, up to a maximum of the number of seats purchased.

If you purchase a Named User License: You may install and use the Software only for your individual internal business or non-business purposes. If you are purchasing a license under the name of a company, you may not purchase a named user license.

If you purchase a Company Seat License: A Permitted Number of personnel may use the software for your internal business purposes. “Permitted Number” means a number less than or equal to the number of seats you have purchased and paid for when acquiring the Company Seat License. Different employees or members of your organisation may use the Software, provided that no more than the Permitted Number of employees is using it at any one time.

5.6. License Key

You will be issued with one or more License Keys when you purchase a license, which will allow you to use the Software. License Keys must not be shared or disclosed with any other person or organisation. You must keep all License Keys confidential and secure. If you disclose a License Key to any person or organisation, CRYOMEN reserves the right to terminate this Agreement and revoke the license granted to you, without any refund of any license fees paid.

5.7. Non-waiver

The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.

5.8. Amendments to the Agreement

CRYOMEN reserves the right to make amendments to this Agreement as it deems appropriate at any time. In case of any discrepancy between this Agreement and its current version, the current version shall always take precedence. Current version is always available to Licensees at the following URL: https://www.cryomen.com/legal/eula/. CRYOMEN notifies Licensees of amendments to this Agreement or a date of their publication on the CRYOMEN website by an email sent to the Licensee’s address provided in the Software purchase application form or informs the Licensee in any other form deemed suitable by CRYOMEN. By continuing to use Software after receiving such notification, the Licensee accepts all terms and conditions of the current version of the Agreement.

5.9. Taxes

Payment for license (granting the right to use) under this Agreement does not include the sum of any applicable taxes and duties whether national, state, or local, however designated under the laws of a region or state where any of the parties to this Agreement is registered.

Each payment under this Agreement is free from any withholdings or instalments of such taxes and duties. In case if any deduction or withholding is levied or imposed on payments under this Agreement at the location of the Licensee, such payments shall be increased to an amount of such deduction or withholding.

5.10. Entire agreement

This Agreement constitutes the complete and exclusive agreement between you and CRYOMEN with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein.

 5.11. Contact information and company details

CRYOMEN OU
Tornimäe 5,
10145, TALLINN,
ESTONIA

As amended on April 3, 2019

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