End User License Agreement and Terms of Use

Recently updated : ____,July 20162017

 

Welcome to WakingApp’s Entiti Creator! A unique service for creating 3D content that interacts with your surroundings and creating a new and exciting mobile experience which can be viewed by users through WakingApp’s Entiti Viewer mobile application.

This End User License Agreement and Terms of Use (the “Terms”) govern your relationship with WakingApp Ltd. (the “Company” or “we”), and set forth the terms and conditions under which the Company makes available its internet website (the “Site”), proprietary software (the “Software”) and the services available through the Site, Software or otherwise provided by the Company (the “Services”). The Company reserves the right to update and change these Terms from time to time, without notice or acceptance by you, so please check this page frequently for updates and changes. In each installation or download of the Software you may be required to approve these Terms again.

By using the Site, Software and/or Services in any manner, you (a “Creator” or “you”) agree to be bound by these Terms, and any and all other terms, policies or procedures, each as amended and published on the Site from time to time. If you do not agree with any of the terms of contained herein, do not access or use this Site or the Services. As long as you do not cease using this Site and the Services, you will be conclusively deemed to have accepted these Terms.

THIS IS A LEGALLY BINDING AGREEMENT; PLEASE READ THESE TERMS CAREFULLY.

1.   The WakingApp Community

The Company provides an online platform to allow Creators, who comply with the Company policies, to create virtual reality content and interactive augmented reality content with multiuser interaction, live data feeds, personalization, social activities, live 3D games and much more (the “3D Content”). The Site and Software are intended for anyone who wishes to create 3D Content and share it with others.

2.   Registration

2.1.     In order to access certain features of the Site, such as download the Software, upload or edit 3D Content, you must first register and create an account. Upon registering for an account, you will receive an account designation and will be asked to provide a valid email address and choose a password.

2.2.     You agree not to use the account of another Creator at any time, and notify us immediately if you suspect any unauthorized use of, or access to, your account. You are solely responsible for any and all use of your account.

3.   License to Software

3.1.  Subject to your acceptance of these Terms, and in accordance with the terms and conditions herein, the Company hereby grants you one (1) non-exclusive, non-assignable, non-transferable, revocable license to install, access and use the Software for your personal, non-commercial use only.

3.2.  In order to make any commercial use of the Platform and 3D Content you shall be required to purchase a subscription plan, as set forth (i) at [www.wakingapp.com/white-label] or such other URL as WakingApp may designate from time to time or (ii) in a written agreement or quote between you and WakingApp.

3.3.  It is hereby clarified that WakingApp shall be entitled to immediately purge any and all Users’ Content (as defined below) which shall be used for commercial purposes without purchasing the applicable subscription plan without any liability towards the User which created such Users’ Content.

3.4.  The Software is licensed to you under the terms herein. You hereby acknowledge that the Software and its accompanying documentation are the exclusive property of the Company and that title to the above shall at all times remain with the Company. You further acknowledge that you have no rights in the Software except those expressly authorized by this Agreement.

3.5.  You may not use the Software in whole or in part for any purpose except as expressly provided under this Agreement. Any unauthorized use of the Software or the Site without the Company’s prior written consent, is expressly prohibited.

3.6.  As condition to your use of the Software and Services, you hereby further agree not to: (i) disrupt, disable, overburden, impair, attack, check or test the vulnerability of, or otherwise interfere with, the Software or the Services, (ii) breach or cause the failure of any of the security related means thereof; (iii) attempt to decompile, disassemble, re-engineer or reverse engineer any of the Software or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Software, or its structural framework; (iv) resell, transfer, sublicense, pledge, lease, rent, or share your rights under these Terms; (v) modify, enhance, update, reproduce, duplicate or copy all or any part of the Software.

3.7.  The Company will not be liable for any loss or damage caused by a denial-of-service attack, viruses or other technologically harmful material that may infect your mobile device, computer equipment, computer programs, data or other proprietary material due to your use of the Services.

4.   User Generated Content

4.1.     All designs, graphics, photographs, drawings, images, text, data, information, messages, video or audio, or other materials communicated, submitted or transmitted by you through the Site, Software or the Services (“Users’ Content”), regardless whether eventually used by you within or included in any 3D Content, are the sole responsibility of the account owner from whom such Users' Content was uploaded or originated. Be advised that Users’ Content also includes any scan which you designate as the ‘trigger’ for the activation of the 3D Content.

4.2.     Please respect the copyrights and trademarks of others. Our Site and Services are intended to help you create new innovative and original 3D content. This should be done solely by using materials you are entitled to use, modify and distribute, and without infringing upon any third party's rights.

Therefore, by uploading any Users Content to the Site or the Services, you hereby represent and warrant as follows:

4.2.1. You confirm that such Users’ Content is your own original work or you otherwise have sufficient legal rights thereto, and does not infringe any third party's rights, including without limitation copyrights, trademark, or other intellectual property right, and that it complies with these Terms.

4.2.2. You confirm that your contribution of any Users’ Content is not defamatory, infringing on another’s privacy, unlawful, pornographic, offensive or otherwise objectionable.

4.2.3. The Creator, and not the Company, is responsible for all Users’ Content that a Creator upload, post, email, distribute, communicate, transmit, or is otherwise made available through the use of a Creator's account, whether or not authorized by the Creator.

4.2.4. Creator further acknowledges and agrees that the Company will not and cannot review every Users’ Content and is not responsible, does not control any Users’ Content originating from any particular Creator. Notwithstanding the foregoing, the Company may, but is not obligated to, review all Users’ Content and block, modify, edit, delete, terminate access to, or remove any such Users Content that the Company, in its sole discretion, considers being non-compliant with any of the requirements of these Terms.

4.2.5. The Company reserves the right to purge Users’ Content from its databases at any time and from time to time without notice. You acknowledge and agree that you are solely responsible for backing up any Users’ Content uploaded to the Site or received from another User through your use of the Services. The Company shall not be liable for any purging, deletion or failure to retain any such Users’ Content.

4.3.     Any Users’ Content (including all 3D Content and the ‘trigger’ for the activation of such 3D Content) created by you through the Site, Software and Services may be published and made available to other Users, at your discretion, as follows:

4.3.1.  Public content –

Publish and make such Users’ Content available to all users of the Entiti Viewer mobile application; or

4.3.2.  Private content -

Publish such Users’ Content with password protection, thus making it available only to such users of the Entiti Viewer mobile application to whom you have provided the password.

4.4.     Please note that once Users’ Content is published through the Site and/or Software without password protection as described in Section 4.3.1 above, such Users’ Content (including all 3D Content and the ‘trigger’ for the activation of such 3D Content) will be made available and downloadable to all users of the Entiti Viewer mobile application. By publishing any Users’ Content You waive any and all claims against the Company with respect to any infringement of your privacy.   

4.5.     The Company does not claim ownership rights to any Users' Content or 3D Content and you retain all of your ownership rights in your 3D Content. However, by uploading or creating any 3D Content using the Site or the Services, whether password protected or not, you hereby grant the Company an irrevocable, perpetual, non-exclusive, royalty-free and worldwide license to use such 3D Content in any way we may reasonably choose for the purpose of facilitating the Services, including without limitation, copy, transmit, excerpt, publish, distribute, publicly display, create derivative works of, host, store, index, cache, tag and modify, in any form or media now known or hereinafter developed, and you warrant to us that you have the right to grant such license for such purposes.

5.   DMCA Compliance.

5.1.     It is the policy of the Company to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act and other applicable laws.

5.2.     If you see on the Site or Services, or included in any 3D Content, any Users' Content you believe is infringing of your copyrights in any way, please report such content to us, by sending a link to the relevant content to the following email address: info@wakingapp.com.

5.3.     To expedite our ability to process your request, please specify and include at least the following information:

-       Identify in sufficient detail the copyrighted work that you believe has been infringed upon and send the applicable URL;

-       Provide your contact information;

-       Provide sufficient information, if possible, to allow us to notify the Creator/account owner of the allegedly infringing content;

-       Include the following statements: (i) "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."; (ii) "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

5.4.     Please note that in addition to forwarding your complaint to the Creator who provided the allegedly infringing content, a copy of your legal notice (with your personal information removed) may be sent to a third-party which may publish and/or annotate it, such as the Chilling Effects (http://www.chillingeffects.org).

6.   Community Conduct Guidelines

6.1.     In connection with your use of any of the Services, and without limiting any of the other obligations under these Terms or applicable law, you agree as follows:

6.1.1. Not to upload, post, distribute, communicate, transmit or otherwise make available any Users’ Content that comprises or includes any disrupt discussions with repetitive messages or any other forms of commercial or harassing communications, or  that comprises or includes any worms or viruses or any code of a destructive nature.

6.1.2. Not to interfere with or disrupt the Services or servers or networks connected to the Site or the Services, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Site, Software and/or the Services in any manner, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services.

6.1.3. Not to engage in excessive usage of the Site or the Services, as determined by the Company in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Site and the Services for other users.

6.1.4. Not use the Services, or any 3D Content produced on or using the Services, to falsely suggest an affiliation, sponsorship, or endorsement on the part of the Company.

7.   Company Intellectual Property

7.1.     Certain content and information provided on and through the Site, Software and Services, including, without limitation, the Company’s logo, trademark, graphics, design, information, text, images, data and other material displayed, available or present on the Site or Services, that were not originated from Creators, as well as the  look and feel of the Site and Services (collectively, the “Company Content”) are the copyrighted and/or trademarked work of the Company solely, and may not be used without express written permission from us, other than for attribution.

7.2.     The Company retains all rights, including any intellectual property rights in the Company Content. You may not duplicate, copy, or reuse any portion of the Company Content, HTML/CSS, Javascript, or visual design elements or concepts without express written permission from the Company.

8.   Privacy Policy

 The Company is committed to your right to privacy. This privacy statement applies to the Services and use of the information collected via this Site.

8.1.     Information Collection

We log users' IP address and device identification number automatically; this information only identifies the device that is being used to view the Site. We may also use cookies (small text files stored in a user’s browser) or Web beacons to gather personally unidentified information.

Information that can identify a Creator (e.g. name or address) is not collected in this process. We collect only personally identified information that is specifically and voluntarily provided by you.

Other than in respect of personal information, if you provide information to us, you agree that we have unlimited rights to such information and that we may use such information in any way we choose. Such information shall be deemed to be non-confidential. If you choose to use this Site, you agree to the use of such data in accordance with this privacy statement.

8.2.     Information Use

Non-personal information is used for click stream analysis in order to constantly improve our Services, including among others, for ensuring the technical functioning of our network, to help prevent fraudulent use of our services and for developing new services. Personal information is used for limited purposes, such as to store user preferences, optimize the content we display (including third party's advertisement) and personalize your Site experience.

We may share non-personal, aggregate information regarding Site usage with our partners or advertisers. We do not share personally identifiable information provided by the Site’s users with third parties.

Where appropriate, personal information may be disclosed to law enforcement, regulatory or other government agencies, or third parties where necessary to comply with legal or regulatory obligations or requests.

8.3.     Commercial Communications

We would like to send you from time to time, to your e-mail, mobile phone or tablet, information related to the Services, such as updates and special offers we believe you may find interesting. By providing your contact information you hereby provide your consent to receive such communications. You may choose at any time to opt-out and to not receive these communications, without a need to also deactivate your account.

8.4.     We may also use personal data to communicate with users regarding customer service issues, billing information, or in response to requests or inquiries. These communications are not promotional in nature. Transfer of Data Abroad

WakingApp [processes information on our servers in the Google cloud  is a global enterprise and has facilities and databases in different countries]. To facilitate our global services, we may transfer and access information from around the world. If the level of privacy protection in a country does not comply with recognized international standards, we will ensure that data transferred to our databases in that country is adequately protected and that the transfer of data to third parties in such countries is made pursuant to a contract or other measures providing adequate protection. By accepting these Terms and using the Sites and/or Services, you hereby consent to these transfers.


9.     Warranty Disclaimers

CREATOR ACKNOWLEDGES AND AGREES THAT THE SITE, SOFTWARE, THE SERVICES AND ANY OF ITS CONTENT, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” ARE USED ONLY AT YOUR SOLE RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THE SITE (AND ITS CONTENT, INFORMATION, SOFTWARE, AND LINKS) AND / OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

10.  Limitations on Liability and Remedies

THE COMPANY’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH THE COMPANY (INCLUDING WITHOUT LIMITATION YOUR USE OF THE SITE, SOFTWARE AND SERVICES) IS TO DISCONTINUE YOUR USE OF THE SITE AND SOFTWARE. THE COMPANY AND ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE SITE OR SERVICES FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH THE COMPANY’S SITE OR SERVICES. THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

CREATOR ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE COMPANY WOULD NOT BE ABLE TO OFFER THE SITE, SOFTWARE OR THE SERVICES.

11.  Miscellaneous

11.1.  Beta. You understand and acknowledge that the App and Services are currently in their testing stage, and are made available as a “Public Beta” version. This means that we have not yet completed development of Services and that not all features are completely functional or available.

11.2.  Entire Agreement. These Terms comprises the entire agreement between you and the Company relating to the Site and the Services. We may change the terms of these Terms at any time, so please review these pages regularly.

11.3.  Provision of Services. the Company reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or Creator’s access thereto, and to modify, suspend or delete the Site or any part thereof.

11.4.  No Guarantee. The Company does not guarantee continuous, uninterrupted access to the Site, and operation of the Site and/or Services may be interfered with by numerous factors outside the Company’s control.

11.5.  Severability. If any provision of these Terms is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of these Terms shall remain in full force and effect.

11.6.  No Agency. You and the Company are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

11.7.  Assignment. Creator may not assign this agreement. The Company may assign this agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization.

11.8.  Choice of Law. The Site, Software, Services and these Terms and any dispute arising in connection therewith shall be exclusively governed by and construed in accordance with the laws of the State of Israel. You agree that all such disputes shall be brought exclusively in the appropriate courts of Tel Aviv, Israel.

ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND SYNC.ME WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

11.9.  Creators may give notices to the Company by email to info@wakingapp.com.