Last updated: August 17, 2016
3DataX GmbH & Co KG (“3DataX”, “our” or “we”) provides software for eLearning and coaching (the “Software”), mobile apps (such as Waltzing Atoms for Android, iOS and Windows devices (“Apps”)), related services (“Education Services”), and communities (like Waltzing Atoms Forum (“Communities”)), provided through or in connection with our website, accessible at www.waltzingatoms.com (the “Site”). Except to the extent you and 3DataX have executed a separate agreement governing your use of the Software and/or Education Services, these terms and conditions exclusively govern your access to and use of the Software, Apps, Education Services, Communities and Site (collectively, the “Services”), and constitute a binding legal agreement between you and 3DataX (the “Terms”). These Terms and any Additional Terms are, collectively, the “Agreement.”
If you accept or agree to the Agreement on behalf of a company, organization or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING, PURCHASING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE AGREEMENT WHETHER OR NOT YOU HAVE CREATED A 3DATAX ACCOUNT OR OTHERWISE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS AND ALL APPLICABLE ADDITIONAL TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE ANY OF THE SERVICES.
1. YOUR USE OF THE SERVICES
The Services are intended solely for persons who are 13 or older. Except as expressly provided otherwise on the Site, the Services are intended for persons 13 and older provided, however, you must be at least 18 to make purchases or submit content to 3DataX. If you are under the age of 18 or whatever is the age of legal majority where you access the Services, you may purchase access to the Services only with the involvement of your legal guardian, and you represent and warrant that your legal guardian has read, understood and agreed to this Agreement.
3DataX reserves the right, at its sole discretion, to modify, discontinue or terminate the Services. 3DataX may also modify the Agreement at any time and without prior notice. If we modify the Agreement, we will post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last updated” date at the top of these Terms. By continuing to access or use the Services after we have provided you with notice of a modification, you indicate that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
2. YOUR 3DATAX ACCOUNT
In order to use most Services, you must register for a “3DataX Account”. To create a 3DataX Account, you can either directly register at our Site or register and login with a third party account such as Facebook. In case of a direct registration on our Site you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. 3DataX reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify 3DataX of any unauthorized use of your account.
You may cancel your 3DataX Account at any time by sending an email to firstname.lastname@example.org. Canceling your 3DataX Account does not relieve you of the obligation to pay any and all remaining amounts owing for your existing Software or Education Service subscriptions.
3. YOUR RESPONSIBILITIES
You represent and warrant that: (a) you have the legal capacity to agree to the Agreement; (b) you are not located in a country embargoed by the European Union; and (c) you will comply with all applicable laws and regulations in connection with your use of the Services, and in accordance with the terms and conditions specified in the Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 3DATAX OWNERSHIP.
The Site, Software, Apps, Education Services, Communities and built-in contents of the Services are protected by copyright, trademark, and other laws of the European Union and foreign countries. Except as expressly provided in the Agreement, 3Datax and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
4.2 YOUR CONTENT.
As between you and 3DataX, you own all right, title and interest (including, all intellectual property rights) in and to the content you create using the Software, Education Services and/or any content you post to the Site or in the Communities (collectively, “Your Content”) (other than any components of the Software contained therein or used in connection therewith).
4.3 COPYRIGHT POLICY.
3DataX respects copyright law and expects its users to do the same. In case you observe violations of copyright laws by other users please notify us at email@example.com. 3DataX will remove all content from users liable to copyright issues from the Services.
4.4 PROPRIETARY RIGHTS NOTICES.
All trademarks, service marks, logos, trade names and any other proprietary designations of Waltzing Atoms and 3DataX used herein are trademarks or registered trademarks of 3DataX. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Fees for certain Services are set forth on the Site or via panels in the Software and Apps (the “Panel”). 3DataX may increase, modify or add new fees and charges for any of the Services from time to time by posting such changes to the Site or within the Panel. 3DataX will provide you with at least 30 days’ notice of any changes affecting existing Software and/or Education Services you have already started using, and your continued use of such Software and/or Education Service after the effective date of any such change means that you accept and agree to such changes, as applicable.
You agree to pay all amounts due for the Services as set forth in the online cart, quote or invoice and, if applicable, those of any payment processor. All fees payable under the Agreement are net amounts and payable in full, without deduction for taxes or duties of any kind. You will be responsible for, and agree to promptly pay, all taxes or duties of any kind (including but not limited to sales, use and withholding taxes) associated with any purchase or your receipt or use of the Software and/or Education Services, except for taxes based on 3DataX net income. In the event that 3DataX is required to collect any tax for which you are responsible, you will pay such tax directly to 3DataX or its payment processor. If you pay any withholding taxes that are required to be paid under applicable law, you will promptly furnish 3DataX with written documentation of all such tax payments, including receipts. 3DataX reserves the right to collect any applicable sales, use or value added tax.
All sales are final and there shall be no refunds except as required by law. Further, 3DataX will not allow changes to your purchase after you complete it. 3DataX may disable the Software and/or your access to any Education Services you have licensed or subscribed to in the event you fail to make all payments when due.
You acknowledge and agree that, in the case of certain Education Services, any estimates of fees and charges provided to you by 3DataX (whether based on assumed data consumption or otherwise) are solely estimates based on assumptions and that you are fully responsible for the actual fees and charges that accrue.
5.3 SUBSCRIPTION TERMS.
If you purchase a subscription to use the Services, you also agree to the subscription terms set forth on the Site. Any subscriptions you purchase will remain in effect for the initial subscription period, and thereafter will automatically renew on a basis at the then-current list price, unless you renew the subscription for a new subscription term or terminate and cancel it as described on the Site.
To ensure compliance with the Agreement, you agree that within ten (10) days from the date of 3DataX or its authorized representative’s request, you shall provide all pertinent records and information requested in order to verify that your installation and use of any and all Services is in compliance with the Agreement along with a signed verification that all such information is complete and correct.
7. TERMINATION AND ACCOUNT CANCELLATION
3DataX will have the right in its sole discretion, and without prior notice to you, to suspend or disable your 3DataX Account or terminate the Agreement and/or your right or ability to access or use any of the Services if: (a) you breach this Agreement; (b) your use of the Services poses a security risk to, or otherwise adversely impacts, the Services or any third party; (c) your use of the Services subjects 3DataX, our affiliates or any third party to liability; (d) your use of the Services may be fraudulent; (e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
In the event of any suspension, disablement or termination, you acknowledge that: (i) 3DataX will have no further obligation to provide the Services to you; (ii) all rights granted to you under the Agreement will immediately cease; (iii) you may no longer access any of Your Content that was previously submitted via any of the Services or that was related to your 3DataX Account, and 3DataX will have no obligation to maintain or forward you Your Content; and (iv) you will remain liable for all fees and charges for all Services ordered. If 3DataX suspends, disables or terminates due to your breach, you will also remain liable for any remaining amounts owing for the entire term of your subscriptions. Any suspension, disablement or termination will not affect your obligations to 3DataX (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, disablement or termination.
THE SERVICES ARE ALL PROVIDED BY 3DATAX ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. 3DATAX AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SERVICES, OR ANY PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE. 3DATAX AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT 3DATAX KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 3DATAX OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
You shall be solely responsible for the accuracy and quality of Your Content, and you understand that you must evaluate and bear all risks associated with your use of the Services, or your reliance on the accuracy, completeness, or usefulness of the Services.
To the maximum extent permitted by law, you agree to defend, indemnify, and hold 3DataX, its officers, directors, employees and agents, harmless from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of any of the Services; (ii) Your Content; or (iii) your violation of the Agreement.
10. LIMITATION OF LIABILITY
3DATAX AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE SERVICES; OR (B) ONE HUNDRED EUROS (100€). IN NO EVENT WILL 3DATAX, ITS LICENSORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE OR EDUCATION SERVICES, OR FROM THE USE OR INABILITY TO USE THE SITE, COMMUNITIES OR WEBSITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHERS AS A RESULT OF YOUR USE OF THE SITE, EDUCATION SERVICES OR COMMUNITIES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT 3DATAX OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. CONTROLLING LAW AND JURISDICTION
11.1 CHOICE OF LAW.
The Agreement is governed by and construed in accordance with the laws of Austria, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
11.2 COURT OF LAW.
In the event of conflict or non-observance of this Agreement by one of the two parties, the competent court of law is Vienna, Austria.
The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and 3DataX have executed a separate agreement governing your use of the Software and/or Education Services, in which case such separate agreement(s) will control in relation to the relevant Software and/or Education Services. The English language version of the Agreement is legally binding in case of any inconsistencies between the English version and any translations. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of the Agreement are hereby rejected by 3DataX and will be deemed null. You may not assign or transfer the Agreement or any rights granted hereunder, by operation of law or otherwise, without 3DataX’s prior written consent. Any attempt by you to do so, without such consent, will be void. 3DataX may assign or transfer the Agreement, at its sole discretion, without restriction. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise. 3DataX will deliver all notices, approvals or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement: (a) via e-mail (in each case to the address that you provide); or (ii) by posting to the Site, the Panel or your 3DataX Account. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of the Agreement is held to be unenforceable or invalid that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
If you have any questions about the Agreement, please e-mail firstname.lastname@example.org.