Effective Date: July 14, 2020
Please read this application End User License Agreement (“EULA”) carefully before using the NYMBIAN LIMITED (“Nymbian“, “we“, “us“, “our“ or“Company”) web based application (“Playground”). This EULA forms a binding legal agreement between you (and any other entity on whose behalf you accept these terms) (collectively “You” or “Your”) and NYMBIAN (each separately a “Party” and collectively the “Parties”) as of the date you start using the Playground application. Your use of the Playground is subject to this EULA and Your use of the Subscription Service will remain subject to the existing agreement governing such use (the “Subscription Agreement”). This EULA is subject to change without prior notice – you will be notified via Notifications within the Software of changes but users should in any event ensure they check the EULA each time they log on.
2. License Grant
Subject to your agreement and compliance with the terms and conditions of this EULA, Company grants You revocable, non-exclusive, non-transferable, limited license to access and use Playground. For the avoidance of doubt, the foregoing license may not be shared or used concurrently on multiple Devices without the purchase of additional licenses from the Company for each such user using the Playground. The number of licenses will determine the number of users that can access the Playground with defined functionality.
3. Restrictions on Use
You shall use the Playground strictly in accordance with the terms of the Related Agreements and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Playground; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Playground; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Playground; (d) use the Playground for any revenue generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended; (e) use the Playground for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Playground; (f) use the same license to log into the Playground simultaneously from different devices; or (g) use any proprietary information or interfaces of Playground or other intellectual property of Playground in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Playground.
4. Intellectual Property Rights
4.1. Rights to Playground
You acknowledge and agree that the Playground and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of NYMBIAN. Furthermore, You acknowledge and agree that the source and object code of the Playground and the format, directories, queries, algorithms, structure and organization of the Playground are the intellectual property and proprietary and confidential information of NYMBIAN and its affiliates, licensors and suppliers. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Playground by implication, estoppel or other legal theory, and all rights in and to the Playground not expressly granted in this License are hereby reserved and retained by NYMBIAN.
4.2. Third Party Software
The Playground may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that Your right to use such Third Party Software as part of the Playground is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event, shall the Playground or components thereof be deemed to be "open source" or "publicly available" software.
4.3. Company’s Marks
You are not authorized to use the Playground trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of Company, which may be withheld for any or no reason.
5. Restriction on Transfer
You may not rent, lease, lend, sublicense or transfer the Playground, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
6. Use of Information
6.1. User Generated Content
Your users may upload content to the Playground, including files, code, images (“User Generated Content”). You retain ownership of all rights, including intellectual property rights, in the User Generated Content that you add to the Playground. Company does not monitor, review, or edit User Generated Content, but reserves the right to remove or disable access to any User Generated Content for any or no reason, including but not limited to, User Generated Content that, in Company's sole discretion, violates this End User Agreement.
6.2. Consent to Use Information
You hereby authorize and consent to the collection, storage and use, by Company and its affiliates, of any information and data related to or derived from Your use of the Playground, and any other information or data than User Generated Content that You provide to Company and its affiliates. Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data: images, files, codes, search requests, search results, patterns, data and suggestions based on user actions. Notwithstanding the foregoing, You shall not provide or disclose and the Information shall not include any information or data that is personally identifiably to You. The Information will be treated as being non-confidential and nonproprietary, and Company assumes no obligation to protect confidential or proprietary information from disclosure.
7. Term and Termination.
This License shall be effective until terminated.
Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without any prior notice. Furthermore, if you fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Company. Upon termination of this License, You shall cease all use of the Playground.
8. Change in Policies
Company reserve the right to change these policies at any time. While it is not our intention to do so, there may be factors outside of our control that require us to implement changes to our policies.
9. Refund Policy
We have a no refund policy for Playground. We do this because we offer free, fully functional trial versions for the Playground. This way you can Use and try the application before you buy. These trials allow you to test the Playground risk-free before you decide to make a purchase.
10. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT THE PLAYGROUND IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE PLAYGROUND AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE PLAYGROUND AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE PLAYGROUND OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE PLAYGROUND OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE PLAYGROUND WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE PLAYGROUND OR THIRD PARTY CONENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM THE PLAYGROUND SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPANY HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE PLAYGROUND. BUT COMPANY HAS A NATURAL INTEREST AND VOLUNTARY WILL TO SUPPORT AND DEVELOP THE PLAYGROUND AS DECIDED BY COMPANY.
11. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE PLAYGROUND AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY POUNDS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend and hold harmless Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third Party Content and Services; (ii) Your breach of this License; (iii) Your violation of law; (iv) Your negligence or wilful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.
13. Force Majeure
A party affected by any Force Majeure Event shall immediately give notice to the other party to that effect, such notice to contain details of the circumstances giving rise to the Force Majeure Event.
If a material delay or failure in performance by one party due to a Force Majeure Event shall continue for more than 4 weeks then the other party shall be entitled to terminate this Agreement immediately by serving a written notice to that effect on the first party.
Subject to Clause 13.1, neither party shall be liable for, or be deemed to be in breach of this licence as a result of, any delay in performing or failure to perform its obligations under this licence where that delay or failure is caused by any Force Majeure Event, nor shall either party have any liability to the other in respect of the termination of this licence under Clause 13.b.
14. OTHER IMPORTANT TERMS
External Services: The Playground may allow end users to add links to third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Playground is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. You are cautioned to read such sites' terms and conditions and/or privacy policies before using such sites in order to be aware of the terms and conditions of Your use of such sites. End User(s) acknowledge that Playground has no control over such third party's site, does not monitor such sites, and Playground shall not be responsible or liable to anyone for such third party site, or any content, products or services made available on such a site.
Third Party Tools and Software: Playground makes use of third party tools and software. In case of a service disruption in any such tool or software Playground will follow the resolution process as provided by the tool or software and shall not be responsible or liable to anyone for such disruptions.
All Playground enquiries should be addressed to firstname.lastname@example.org