Terms of service
Last Updated: September 21, 2016
THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF DELIGHT VR (REFERRED TO AS “APPLICATION SERVICES“ or “DELIGHT VR”, AS DEFINED BELOW) OF XYMATIC GMBH (“XYMATIC”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE XYMATIC’S APPLICATION SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING XYMATIC’S APPLICATION SERVICES IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE APPLICATION SERVICES (“EFFECTIVE DATE”).
License to use the service
Subject to the terms herein, xymatic grants to Customer a limited, non-exclusive, non-transferable license to use the Application Services for Customer’s internal use and not for resale or further distribution. Customer’s right to use the Application Services is limited by all terms and conditions herein. Except for this license granted to Customer, xymatic and its licensors retain all right, title and interest in and to the Application Services, including all related intellectual property rights. The Application Services are protected by applicable intellectual property laws, including German copyright law and international treaties. “Application Services” shall mean the online, web-based and mobile-based applications ordered by Customer through a Order Form and provided by xymatic via https://delight-vr.com or other designated websites or IP addresses or mobile applications, as communicated to Customer by xymatic. An “Order Form” shall mean either (a) a document signed by both parties identifying the Application Services purchased by Customer and made available by xymatic pursuant to this Agreement or (b) Customer’s selection and acceptance of a specific pricing tier for the Application Services, which are set forth via the online purchasing process at https://delight-vr.com.
Customer will not, and will not permit or authorize any third party to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of any of the Application Services; (ii) rent, lease or sublicense access to any of the Application Services; or (iii) circumvent or disable any security or technological features of the Application Services.
Fees paid hereunder are non-refundable. Unless otherwise set forth in an Order Form, fees for the first month of the Application Services are prorated based on the calendar days remaining in the particular month at the pricing tier selected by Customer provided that in the event Customer’s usage of the Application Services exceeds the pricing tier selected by Customer, fees are adjusted as follows: for the previous month, xymatic will charge the lower of any overage cost for usage in excess of the pricing tier Customer selected versus the retroactive upgrade cost to the next higher tier. The subsequent month is charged at the then-current pricing tier.
Except as otherwise set forth in an Order Form, the Application Services will automatically renew on a monthly basis unless and until Customer terminates the Application Services by providing written notice to xymatic (email is acceptable) or selecting the cancellation option on the dashboard of the Application Services. Such termination will be effective as of the last day of the calendar month during which such termination notice is received.
Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes xymatic (or its billing agent) to charge the credit card account until Customer or xymatic cancels or terminates the Application Services as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on xymatic’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to xymatic free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to xymatic will be Customer’s sole responsibility, and Customer will, upon xymatic’s request, provide xymatic with official receipts issued by appropriate taxing authorities, or such other evidence as xymatic may reasonably request, to establish that such taxes have been paid.
Access to the services
xymatic does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers). In the event Customer utilizes SMS notifications as part of its utilization of the Application Services, xymatic reserves the right to pass through its costs of such service to Customer, and Customer agrees to be pay such fees.
xymatic also reserves the right to restrict, suspend, or terminate access to the Application Services at any time, if in xymatic’s sole determination, Customer is using the Application Services in a manner that violates applicable laws or the terms of this Agreement, fails to make payment to xymatic or creates an Excessive Burden on xymatic’s systems. “Excess Burden” means when the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, and/or use of Application Services is causing immediate, material and ongoing harm to xymatic or xymatic’s other customers.
Customer must comply with all applicable laws when using the Application Services. Except as may be expressly permitted by applicable law, or as xymatic may authorize expressly in writing, Customer will not, and will not permit anyone else to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works, or other content made available on the Application Services, or compile or collect any such content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to access or use the Application Services; (iii) rent, lease, or sublicense Customer’s access to the Application Services to another person; (iv) use any Application Services for any purpose except for Customer’s own internal use; (v) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services; (vi) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services; or (vii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Application Services.
Customer agrees to comply with all applicable privacy and data protection regulations. Further, Customer agrees to not use the Application Services to send xymatic sensitive information where unauthorized disclosure could cause material, severe, or catastrophic harm or impact to xymatic, any data subjects or third parties. Sensitive Information includes:
- Passwords, authentication/authorization credentials
- Information under regulatory or contractual handling requirements (e.g., PCI, HIPAA, and state and federal data security laws) including:
- Credit card information including credit card numbers, CIV numbers (three digit codes for Visa and MasterCard, four digit code for American Express) and magnetic stripe information
- Social Security Numbers
- Drivers License Numbers
- Passport Numbers
- Government Issued Identification Numbers
- Financial Account Information
- Health data
- Biometric data
- Personally identifiable information knowingly collected from children under the age of 13 or from online services directed toward children, and
- Real time geolocation data which can identify an individual.
- Business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications).
xymatic collects, stores, and uses Customer Content to maintain and improve the Application Services. xymatic may also use Customer Content in an anonymized and aggregated form for xymatic’s own business purposes. The Application Services transfer data to servers that store Customer Content in Germany and outside Germany. xymatic only shares Customer Content with others under special circumstances as follows:
- With third parties who work on xymatic’s behalf to provide the Application Services;
- To the extent needed to comply with laws or to respond to lawful requests and legal process (provided that xymatic will endeavor to notify Customer if xymatic has received a lawful request for Customer’s information);
- In an emergency, including to protect the personal safety of any person; or
- In connection with a sale or transfer of all or a part of xymatic’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding).
xymatic provides Customer with access to Customer Content and ability to delete Customer Content. xymatic also takes commercially reasonable steps to safeguard Customer Content.
Restricted areas of service
Certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify xymatic if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify xymatic of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.
Links and third party contents
The Application Services may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties on the Application Services, or which is accessible through or may be located using the Application Services (collectively, “Third Party Content”) are those of the respective authors or producers and not of xymatic or its shareholders, directors, officers, employees, agents, or representatives.
xymatic does not control Third Party Content and does not guarantee the accuracy, integrity or quality of such Third Party Content. xymatic is not responsible for the performance of, does not endorse, and is not responsible or liable for, any Third Party Content or any information or materials advertised in any Third Party Content. By using the Application Services, Customer may be exposed to content that is offensive, indecent, or objectionable. xymatic is not be responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any goods, services, or information available on or through any third party service or Third Party Content. It is Customer’s responsibility to evaluate the information, opinion, advice, or other content available on and through the Application Services.
Customer will not use the Application Services to: (i) upload, post, email, or otherwise transmit any content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm xymatic or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with or disrupt the Application Services or servers or networks connected to the Application Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Application Services; (ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (x) “stalk” or otherwise harass another; or (xi) collect or store personal data about other users.
Customer is solely responsible for any content and other material that Customer submits, publishes, transmits, or displays on, through, or with the Application Services.
“Delight VR,” the Delight VR logo, and any other product or service name or slogan displayed on the Application Services are trademarks of xymatic GmbH. and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of xymatic or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Delight VR” or any other name, trademark or product or service name of xymatic without prior written permission. In addition, the look and feel of the Application Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of xymatic and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Application Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by xymatic.
Confidential information – Feedback
“Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
Each party agrees as follows: (a) to use Confidential Information disclosed by the other party only for the purposes described herein; (b) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement.
Notwithstanding the foregoing, the provisions of Sections 10.1 and 10.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
Customer may provide xymatic with feedback, suggestions, and ideas, if Customer chooses, about the Application Services (“Feedback”). Customer agrees that xymatic may, in its sole discretion, use the Feedback Customer provides in any way, including in future enhancements and modifications to the Application Services. Customer hereby grants to xymatic and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party.
Disclaimer of warranties
USE OF THE APPLICATION SERVICES IS AT CUSTOMER’S SOLE RISK. THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XYMATIC AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. XYMATIC DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE APPLICATION SERVICES, AND CUSTOMER RELIES ON THE APPLICATION SERVICES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH THE APPLICATION SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE APPLICATION SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM XYMATIC OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of liability
XYMATIC AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF XYMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE APPLICATION SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF XYMATIC AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE APPLICATION SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO XYMATIC FOR CUSTOMER’S USE OF THE APPLICATION SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
Customer will defend, indemnify and hold harmless xymatic, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Application Services, Customer’s violation of this Agreement, Customer Content, or Customer’s violation of any rights of a third party through use of the Application Services.
Enforcement of any dispute relating to this Agreement will be governed by the German law, excluding the CISG and without giving effect to any principles of conflicts of laws. To the extent that the Customer is a businessman, juridical person or a legal entity under German public law venue for any claims arising out of or related to this Agreement or Customer’s use of the Application Services shall be Berlin, Germany, xymatic’s right to bring action in front of the competent court at the Customer’s seat remains unaffected. The before mentioned applies accordingly if the Customer is a private consumer, who has no general place of jurisdiction in Germany or has transferred such place of jurisdiction outside of Germany after the conclusion of this Agreement or who’s place of jurisdiction is not known at the time of bringing action.
xymatic’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by xymatic in writing. In the event that a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer of Warranties, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.
If you have any questions or concerns about our Services or these Terms, you may contact us at:
Reichenberger Str. 124
10999 Berlin, Germany
or by email at firstname.lastname@example.org.