1. GENERAL PROVISIONS

These general conditions of subscription (the General Conditions of Subscription) shall apply to the provision of all the Services by LM3LABS, Inc. (LM3LABS) in respect of the on-line platform Xloudia and its related products (Xloudia) and shall prevail over all contrary provisions or conditions that might be contained in any document or writing that a client (the Client) of LM3LABS would like to impose, particularly general conditions of purchase or particular language in the Subscription Contract, save for exceptions agreed by a written agreement and signed by LM3LABS and the Client.
 A party’s failure at any time to assert any one of the General Conditions of Subscription may not be interpreted as a waiver of asserting any one of such General Conditions of Subscription subsequently.

 

2. MODIFICATION OF THE GENERAL CONDITIONS OF SUBSCRIPTION

The General Conditions of Subscription may not be modified orally.

 

3. PROVISION OF SERVICES

Except as specifically stipulated, as the case may be, in an agreement entered into between LM3LABS and the Client, LM3LABS shall provide the following services for the Client (the Services):

1. LM3LABS shall grant the Client, for the duration of his Subscription Agreement, a right to use
 Xloudia on a personal and non-exclusive basis.

2. LM3LABS shall give the Client a series of keys, valid only for the duration of the Subscription, which when integrated into a mobile phone application will allow this application recognize images. The recognition is called a Request.

3. Intentionally omitted

4. LM3LABS shall allow the Client, when accessing Xloudia, to upload pictures which will become “Markers” recognised and optionally tracked by Xloudia’s service.

5. Based on Xloudia’s algorithms and depending on his Subscription, the Client’s application will be able to extract feature points from a video flow captured with a compatible mobile phone, send the feature points to Xloudia servers, have them compared with Client’s Markers and receive the related ID of the Marker, and on a personal and non-exclusive basis:

(i) Manage Markers like upload, naming, sorting into categories, deleting;

(ii) Test markers;

(iii) Integrate Xloudia algorithms, prefab, library scripts and methods into a Unity3D template;

(iv) Optionally track images, recognise colors and shapes, and other options when made available;

(v) Download of Request counting as CSV file;

(vi) Consult of the usage Analytics.

6. LM3LABS shall integrate the Markers in Xloudia’s database with a view to hosting them and possibly on behalf of Client, solely for use by Client. LM3LABS acknowledges that all intellectual property rights in the Markers remain with the Client, and it may use the Markers solely for the purposes of this Agreement.

7. During the period of the Subscription, the Client may not have more than the number of Markers defined on the order page, simultaneously on Xloudia, nor complete the number of Requests defined on the order page, for the period defined on the order page.

 

4. SUPPORT

LM3LABS will provide email and ticket system support for any difficulties or issues raised with respect to the use of, access to, invoicing and payment for Xloudia. Due to maintenance, security or capacity issues, and also to some events over which LM3LABS may not influence (force majeure, equipment malfunction, power failures, hostile attacks, etc.), Xloudia and Xloudia Support may be temporally suspended or affected. LM3LABS shall use our best commercially reasonable efforts to correct any errors and minimize any disruption, inaccessibility and/or inoperability of Xloudia, whether scheduled or not. LM3LABS usually provide forty-eight (48) hours advance notice to the Client in the event of any scheduled downtime. In the event of any downtime, the Client shall not be entitled to a pro rata reduction of any payments for such period unless the Downtime equals or exceeds five (5) consecutive working days or an aggregate of five (5) working days in any calendar month, in which case paying clients shall be entitled to a pro-rata reduction as their sole and exclusive remedy for such downtime.

 

5. INVOICING

Upon Subscription LM3LABS will issue an invoice upon acceptance and execution of the Subscription.
 Renewals are invoiced on the periodic renewal date of the current plan (monthly or annually). Unless provided otherwise in the Subscription Order, LM3LABS will issue all invoices in US Dollars, Singapore Dollars, or Euros according to the currency selected by the Client at the initial order, posted to the Client’s user account or by e-mail.

 

6. SUBSCRIPTION AGREEMENT

The Client’s execution of the Subscription Agreement shall imply the Client’s complete and unconditional acceptance of these General Conditions of Subscription. A Subscription Agreement shall become final only after being expressly accepted by LM3LABS. Once a Subscription Agreement has been accepted by LM3LABS, it may not be cancelled, amended or terminated (otherwise than on the expiry date of the then current period) without LM3LABS’s written agreement and only at conditions allowing LM3LABS to be indemnified for any loss or harm that the latter may have suffered, except if LM3LABS has breached its obligations pursuant to the Subscription Agreement.
The Subscription Agreement and the keys supplied by LM3LABS are personal to the Client and may not be transferred or assigned to any third party whatsoever, without LM3LABS’s prior written agreement.
Similarly, the Client undertakes not to allow any third party whatsoever, for one or more uses, whether or not commercial, to access Xloudia or to use it, or to make Requests on LM3LABS’s Markers database.

 

7. TERM – TERMINATION

The Subscription Agreement is entered into for an initial term of one month. At the end of this initial term, the Subscription Agreement shall be renewable by tacit agreement for a further month period, unless terminated by notice sent by one of the parties to the other prior to the expiry of the then current period.

As an exception to the foregoing, in the event of either party’s breach of any one of the provisions of the Subscription Agreement, the Subscription Agreement shall be automatically terminated (subject to the specific provisions set out in the paragraph “Payment” below), without prejudice to any damages that the party suffering the harm might otherwise claim.

In the event of the termination of the Subscription Agreement, the Client shall no longer be able to access Xloudia and his keys will be disabled.

 

8. PRICE – INVOICING

The Services shall be invoiced to the Client at the price of the subscription stated in the product pages (the Price). The Price is understood to be excluding tax.

The price is expressed in US Dollars, Singapore Dollars, or Euros according to Client’s selection.

 

9. PAYMENT

Unless otherwise agreed, the Client shall pay the Price in accordance with the provisions set out in the specific conditions of the Subscription Agreement and the payment date mentioned on the invoice issued
by LM3LABS. Any sum of money paid by the Client that does not correspond to the full amount of the Price shall constitute a down payment on the Price. When LM3LABS grants its legal entity Clients a payment
 deferment, this must be specified in the specific conditions of the Subscription Agreement. When LM3LABS grants payment deferments, they are calculated starting from the payment date mentioned on the corresponding invoice.

When LM3LABS grants payment deferments, any deterioration in the Client’s credit may justify a demand for guarantees to be provided or payment to be made cash.
Any sum not paid on the payment date mentioned in the invoice issued by LM3LABS shall result in the application of penalties, the amount of which shall be equal to one and a half times the legal interest rate. These penalties shall be due and payable following LM3LABS’s simple formal notice.
If the Client fails to pay forty eight (48) hours after formal notice has remained without effect, the Subscription Agreement shall be terminated automatically if LM3LABS sees fit, and LM3LABS may prohibit access to Xloudia’s services, without prejudice to any damages.

The failure to pay a single invoice on its payment date shall also make the balance due on all the invoices in progress with the Client become immediately due and payable. Similarly, when LM3LABS has authorised the Client to make payment of the Price in several instalments, the failure to pay a single instalment shall result in the entirety of the Client’s debt becoming due and payable.

The Client shall reimburse to LM3LABS all the costs occasioned by the contentious recovery of the sums due, including any court officer’s fees.
The payments may not in any circumstances be suspended or be the subject of a set off without LM3LABS’s prior written agreement. Any partial payment, as the case may be, shall first be allocated to the non-secured part of the receivable, then to the sums that have been outstanding for the longest time.

 

10. XLOUDIA AND EQUIPMENT

In order to use Xloudia, the Client and his clients shall in particular have a recommended compliant mobile phone.
Xloudia’s software, documentation and methods made available to the Client by LM3LABS in the context of the performance of the Services shall remain LM3LABS’s exclusive property. Without LM3LABS’s prior written agreement, any reproduction or distribution of any one of the components of Xloudia, including the keys, is strictly forbidden and the Client shall remain solely liable towards LM3LABS for any infringement of its property right.

The Client authorises LM3LABS to make all necessary modifications and adaptations to Xloudia to take into account its development, and all the modifications in connection with the possible upgrade of the service performance.

 

11. OPERATORS

Operators are entitled resellers of the Xloudia service within a define territory. Operators are granted a limited, non-exclusive, non-transferable, revocable license to market, resell, and distribute the Xloudia service in accordance with the following terms and conditions. Operators are granted special privileges on the Xloudia distribution. These privileges are stated on the Xloudia Operator product page or in a separate written and signed agreement.

Operators can distribute the Xloudia service under their own brand and colors within a territory or market segment for the duration of the subscription. This territory or market segment is agreed in written between the Operator and LM3LABS. This distribution scheme is known as a “white label” distribution scheme.

Operators have access to the Operator dashboard which allows a complete client management. They can create, suspend, stop clients in total autonomy. They can set limits and alarms by client. They can view realtime analytics by client and download their usage data as CSV file. Operators can generate dashboard access credentials and service keys for clients and distribute them in total autonomy. Operators are granted the right to repackage the service pricing as they wish. The Xloudia system is based on the above described “Request” system and remains such for Operators.

Unless agreed otherwise, the Operator is not granted any exclusivity on the Xloudia service distribution inside or outside the Territory or Market Segment.

The Operator status is not granted any intellectual property on the service and technical solution. LM3LABS remains the owner of Xloudia intellectual property.

Operators are solely responsible for the provision billing support to each of the Client procured by Operators. LM3LABS shall have no responsibility for or liability in respect of billing Clients save where specifically agreed otherwise in writing.

Operators are solely responsible for the commercial and technical support to each of the Client procured by Operators. LM3LABS shall have no responsibility for or liability in respect of supporting Clients save where specifically agreed otherwise in writing.

LM3LABS will make best efforts to prevent the Xloudia brand to appear on dashboards, SDK, templates, links, etc…

Customisation works of the dashboard start 1 week from subscription reception and upon reception of necessary instructions and materials from the Operator. Customisations include:

– Top left logo

– Color scheme

– Copyright and associated links

– Access URLs

LM3LABS may decline Operator candidates before they subscribe or within 1 month from their first subscription. In this case, all paid amounts are refunded by LM3LABS within 1 month from subscription cancellation by LM3LABS. Operators can cancel their subscription at any time from their account page on LM3LABS web site. The Xloudia Operator service ends 1 week from payment default or subscription cancellation by Operator or by LM3LABS.

 

12. GUARANTEES

LM3LABS grants to the Client a right to use Xloudia in the condition in which it is with its imperfections, if any, and LM3LABS does not grant the Client any warranty concerning Xloudia, or any update, adaptation and/or modification warranty. The Client acknowledges in addition that LM3LABS shall be bound towards it only by a “best efforts” obligation for the performance of the Subscription Agreement, and LM3LABS shall not in any circumstances be held liable for consequential damage, such as commercial harm, loss of clientele, loss of orders, any commercial disruption, loss of profits, loss of brand image or third party action, which might be suffered by the Client.
LM3LABS does not grant the Client any guarantee of quality or fitness for a particular use, or absence of a virus that might be introduced by other clients using Xloudia, despite the protective measures taken by LM3LABS.
LM3LABS also does not grant the Client any undertaking or guarantee in terms of timing for the processing of the Markers or Requests performance.
Finally, LM3LABS does not grant the Client any guaranteed supply of the Services (i) in the event of the interruption or poor functioning of the Internet or Mobile network or the Client’s connection or (ii) in the event of incompatibility with the Client’s software or hardware, or further (iii) in the event of the wrong manipulation of Xloudia.
The Client expressly declares that he holds all the rights necessary to create the Markers, that they are not harmful to public order and accepted standards of good behaviour or to third party rights, and particularly the right to the image of the owners of the photographed objects or architects’ literary and artistic property right relating to these objects, and that he has received all the necessary authorisations, and guarantees LM3LABS for each Marker against any disturbance, demand, forfeiture of rights or claim in this regard, whether the photographs and Images were taken and animated for the first time following their being placed on Xloudia by the Client or they come from LM3LABS’s database (in which case the Client’s liability shall be joint and several with that of the client that placed the Image on Xloudia for the first time and guarantees that the original authorisations were obtained).
The Client represents and warrants to LM3LABS in particular that he has received all the necessary authorisations for one or more uses of the Markers on any type of medium and for any type of use, and that these authorisations shall remain valid for a period of one (1) year from the date they are first placed on Xloudia, renewable thereafter by tacit agreement for further one (1) year periods, unless terminated by either of the parties at the end of each of the renewal periods in consideration for minimum notice of three (3) months.
The Client expressly undertakes in addition to inform LM3LABS of any financial difficulty and any risk of insolvency pursuant to this clause, in order to allow LM3LABS to withdraw the Images from its database until the Client’s return to a better financial situation.

 

13. FORCE MAJEURE

In the event of force majeure, LM3LABS and the Client agree that the performance of the Subscription Agreement and the Services shall be suspended initially. If the force majeure event or events have a duration of more than two (2) months, the Subscription Agreement shall be terminated automatically, unless otherwise agreed between LM3LABS and the Client.
Force majeure events or acts of God are expressly considered to be, other than those usually retained by the case law of international courts and tribunals, war, nuclear accident, total or partial strikes, whether internal or external to the enterprise, lock-out, bad weather, epidemics, blockages of transport or supply means for any reason whatsoever, earthquakes, fires, storms, floods, water damage, government or legal restrictions, legal or regulation changes in the forms of commercialisation, computer breakdowns, blockage of telecommunication means, including the networks, and any other event independent of the express will of LM3LABS preventing the normal performance of the Subscription Agreement and the Services.

 

13. DATA FILES

The information provided by the Client at the time of the conclusion of the Subscription Agreement shall be processed electronically in LM3LABS’s in Japan or in the USA. The Client shall have a right of access and rectification of the data concerning him with LM3LABS’s commercial department, and may object to this personal information being processed or transmitted to third parties by indicating it expressly to LM3LABS.

 

15. DATA PROCESSING

In registering for Xloudia and submitting to LM3LABS’ systems any personal data (“Client’s Data”), including photographs, images or any metadata within a Xloudia category, the Client is the Data Controller and the Client appoints LM3LABS as a Data Processor of such data, for the purpose of providing the Xloudia service.
As Data Processor on the Client’s behalf, LM3LABS shall (a) implement appropriate technical and organizational measures to safeguard the Client’s Data against any unauthorized or unlawful access, loss, destruction, theft, use or disclosure; LM3LABS implement basic security measures and no higher level measures are available for Xloudia; (b) limit access to the Client’s Data only to those employees who need to know it to enable LM3LABS to perform the Services, and shall take appropriate steps to ensure the reliability of those of its employees or subcontractors who have access to the Client’s Data; (c) only process the personal data as specified by these Terms and in accordance with the Client’s instructions.
Upon the expiry or termination of this Agreement by way or de-registration, or upon request of the Client, cease any and all use of Client’s Data and will destroy or return it to the Client. LM3LABS will not disclose the Client’s Data to any third party without the Client’s prior written consent of the Client.
As Data Processor LM3LABS may provide access to a subcontractor processor to Client’s Data if LM3LABS reasonably considers such access and processing necessary to the performance of the Services. In the event of such access and before the access takes place, LM3LABS shall ensure that an agreement with the third party is in place which is sufficient to require it to treat personal data in accordance with the applicable provisions of this Agreement and applicable. The Client authorises LM3LABS to subcontract such processing in Client’s name. In particular, the Client authorises LM3LABS to subcontract data storage and hosting services to Amazon Web Services LLC, member of the US Privacy Safe Harbour.
LM3LABS shall provide the Client with reasonable assistance in the event that the Client receives a request from an individual or regulator under data protection laws, provided that the Client shall first use all reasonable endeavours to resolve the request without LM3LABS’ assistance. LM3LABS shall promptly notify the Client of any such request received that should properly have been addressed to the Client.
LM3LABS warrants that the Client have all the appropriate consents from data subjects whose personal data are submitted to LM3LABS in the course of the provision of the Xloudia service. The Client will indemnify and keep LM3LABS harmless from all claims, damages and losses LM3LABS may suffer relating  to or arising out of the processing of third party personal data submitted to LM3LABS’ systems during the course of the provision of the Xloudia service.

 

16. CONFIDENTIALITY

Either party receiving information from the other marked “confidential”, or which may reasonably be supposed to be confidential, including, without limitation, information contained in or input onto Xloudia or related software, shall not without the other’s prior written consent use such information except for the purposes of this Agreement, or disclose such information to any person other than to their own employees or agents who have a need to know.

 

17. INTELLECTUAL PROPERTY

LM3LABS shall remain the sole owners of Xloudia and of all the intellectual property rights related thereto.
The Client may not, and the Client may not permit others to reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, Xloudia or Xloudia technical elements.
The Client may not use Xloudia and associated elements for the purposes of competing with LM3LABS, including without limitation competitive intelligence.
The Client may not publish or disclose the results of any benchmarking of Xloudia, or use such results for any other cloud-based service development activities.

 

18. DANGEROUS USE

XLOUDIA IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER APPLICATIONS IN WHICH THE FAILURE OF XLOUDIA COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

 

19. GOVERNING LAW – DISPUTE RESOLUTION

The Subscription Agreement shall be governed by and construed in accordance with the law of the state of Delaware, USA. 
In the absence of an amicable agreement, any dispute in connection with the Subscription Agreement shall be submitted to the exclusive jurisdiction of the competent courts in the territorial jurisdictionof the state of Delaware court, including in the event of summary proceedings, an incidental claim, the presence of several defendants or impleading actions.

 

20. DESIGNATION OF LM3LABS

LM3LABS, Inc.

833 Broadway Floor 2,

New York, NY 10003,

United States

(347) 573-9393

 
 

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