My HOLOFIT is rebooting repetedly.
These are the Terms & Conditions for the use of HOLOFIT Software Service between Spondeo Group SA dba Holodia (“Holodia”) and the licensed end customer (“You”)
1. License for Your Use of the Subscription Services
Subject to your compliance with these Subscription Terms, Holodia hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access the Subscription Services, and otherwise view and use the Subscription Services to the extent permitted by its intended functionality for your commercial use, and not for the sublicense to or use by third parties.
You may purchase subscription access (a "Subscription") to the Subscription Services for a fee (the "Fee") for the period of time (the "Access Period") you have elected from the available options (e.g., monthly or annually). The Fee is exclusive of any applicable federal, state, telecommunications, excise, or municipal taxes or duties, including VAT and GST (collectively, "Applicable Taxes") unless otherwise specified.
You may purchase access to the Subscription Services through a single use pass (a "Pass") for a Fee for the Access Period specified with the Pass (e.g., one day, one week, one month, etc.). Once the Access Period for the Pass expires, you will no longer have access to the Subscription Service unless you purchase a Subscription or an additional Pass.
3. Access and Renewal
Your ability to access and use the Subscription Service commences on the date we make the Subscription Services available to you following your purchase or redemption of a Subscription Product and remittance of the Fee and Applicable Taxes, if any, and continues until the end of the applicable Access Period. Holodia will automatically renew or commence your Subscription for a new Access Period by charging the associated Fee plus any Applicable Taxes to the payment method you provided unless you cancel your Subscription as provided below.
Unless you affirmatively opt-out of automatic renewal either prior to the expiration of a Subscription Product or before the end of the then-current Access Period (as applicable), you hereby authorize Holodia to renew or commence your Subscription automatically at the end of each Access Period or at the expiration of your Subscription Product for a new Access Period.
If you opt-out of automatic renewal, your Subscription Product will expire and your access to the Subscription Services will cease at the end of its specified Access Period. In order to continue to access the Subscription Services after your Access Period has expired, you will need to purchase or redeem a new Subscription Product. You are required to maintain accurate and up-to-date payment information. Holodia assumes no responsibility or liability if your Subscription Product fails to renew or otherwise expires because of outdated or incorrect payment information.
4. Subscription Cancellation; Refunds
You may cancel the renewal of Subscription Product at any time by following the instructions included in your Subscription Product purchase, redemption, or renewal confirmation email. You may also contact Holodia Support with a request to cancel your Subscription Product. If you cancel your Subscription Product during your current Access Period, your access to the Subscription Services will continue until the end of your then-current Access Period, at which point it will expire. Purchase and/or redemption of your Subscription Product is final and non-refundable; Holodia will not issue you any refund, including partial, pro-rated, or otherwise unless required to do so by law.
If you purchase or redeem a Subscription Product through an Agent, you must maintain accurate and up-to-date payment information with that Agent in order to continue to access the Subscription Services. If you elect to purchase a Subscription Product directly from Holodia and you previously purchased a Subscription Product from an Agent, it is your responsibility to cancel your Subscription Product managed by that Agent in order to avoid duplicate charges. As disclosed above, purchase of a Subscription Product is final and non-refundable except where the law requires Holodia to provide a refund, although the refund policy offered by Agents may differ. Please refer to the Agent through which you purchased or redeemed a Subscription Product for more details.
6. Availability and Modifications
Holodia reserves the right to modify, offer additional, or cease offering Subscription Products and Subscription Services at any time in its sole discretion, including but not limited to changes in Fees, modifying the availability of and Eligibility Requirements for certain Subscription Products and Subscription Services, or modifying the features and functionality of certain Subscription Services. If we cease offering your current Subscription Product, your access to the Subscription Services will continue until the end of your then-current Access Period. In such event, we may elect to migrate you to a similar Subscription Product and charge your payment method the associated Fee at the end of your then-current Access Period. We will provide you with thirty (30) days prior notice via email before changes in Subscription Products or Fees take effect. Any changes to the Subscription Products or Fees will be effective upon your next billing cycle, and will not apply retroactively or to the remainder of your current Access Period. In the event we do migrate you to a different Subscription Product, or modify your current Access Period or Fee, you may opt-out of these changes by disabling auto renewal of your Subscription Product, or cancelling your Subscription Product by contacting Holodia Support.
7. Changes to Subscription Terms
We may modify these Subscription Terms from time to time. If we make material changes to these Subscription Terms as it applies to your currently active Subscription Product, then we will supply you with appropriate notice (e.g., in-app notification, email, statement on the Holodia Service, etc) of those changes. Revised Subscription Terms will become effective upon the next renewal of your Subscription Product and your continued use of the Subscription Services will constitute your acceptance of the revised terms. If you are not willing to agree to the revisions, you may cancel your Subscription Product as disclosed in paragraph 4 above.
8. Subscription Issuer
Spondeo Group SA, dba Holodia, is currently the issuer of Subscription Products worldwide.
9. Entire Agreement
These Subscription Terms (including, without limitation, the documents incorporated into them constitute the complete and exclusive agreement between you and Holodia with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements by or between you and Holodia concerning such subject matter.
Applicable from: 22 April 2017.
The following terms of service and end user license agreement (“EULA”) constitute an agreement between you and Spondeo Group SA dba Holodia, and its affiliates (“Holodia”). This EULA governs your use of Software and Services (as specified below).
For purposes of this EULA "Software" means all software programs distributed, published or otherwise made available by Holodia or its affiliates including, but not limited to stationary and mobile games, downloadable/installable games for personal computer, and games accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials.
“Services” means all services made available by Holodia, including but not limited to services accessed through our games, by means of a browser or by other online communication method.
Software and Services are collectively referred to as “Holodia Services”.
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE HOLODIA SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE HOLODIA SERVICES, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.
If you do not accept the terms of this EULA, do not install, use or access the Holodia Services.
SOFTWARE LICENSE. Subject to this EULA and its terms and conditions, Holodia hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for gameplay on a single computer or gaming unit, unless otherwise specified in the Software documentation. The rights granted herein are subject to your compliance with this EULA and to an active Service Subscription. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software.
SERVICE LICENSE. Subject to this EULA and its terms and conditions, Holodia hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by Holodia, during the paid subscription term for full commercial use, in the manner permitted by this EULA. The rights granted herein are subject to your compliance with this EULA and to an active Service Subscription.
LICENSE TERM. The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or Holodia's termination of this EULA. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software and/or Services or you otherwise use the Software and/or Services in breach of the terms of this EULA.
OWNERSHIP; NO OTHER LICENSES. Holodia retains all right, title and interest in and to the Holodia Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. The Holodia Services are protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the Holodia Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Holodia. All rights not expressly granted to you herein are reserved by Holodia.
2. Third party services
Holodia Services may include links to third party services and/or the third party services may be made available to you via Holodia Services. These services may include, but are not limited to fitness data recording and sharing, social medial connectivity and the like. These services are subject to respective third party terms and conditions. Please study these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider. Data displayed by any Licensed Application or External Service, including but not limited to health, medical and location information, is for general informational purposes only and is not guaranteed by Holodia or its agents.
3. General license conditions
You agree not to: (i) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Holodia Services, any copies thereof, or any passwords or usernames of Holodia Services, without the express prior written consent of Holodia or as set forth in this EULA; (ii) make a copy of the Holodia Services or any part thereof, including but not limited to Software (other than as set forth herein); (iii) make the Holodia Services publicly available or available on a network for use or download by multiple users; (iv) except as otherwise specifically provided by the Holodia Services or this EULA, use or install the Holodia Services (or permit others to do same) on a network, for on-line use, or on more than one computer or gaming unit at the same time; (v) use or copy the Holodia Services at a computer gaming center or any other location-based site; provided, that Holodia may offer you a separate site license agreement to make the Holodia Services available for commercial use; (vi) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Holodia Services, in whole or in part; (vii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Holodia Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (vii) misrepresent the source of ownership of the Holodia Services; (ix) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Holodia Services by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (x) scrape, build databases or otherwise create permanent copies of content returned from the Holodia Services.
However, with regards to installable Software that was delivered on a physical storage medium, you may transfer the entire Software and accompanying documentation on a permanent basis to another person as long as you retain no copies (including archival or backup copies) of the Software, accompanying documentation, or any portion or component of the Software accompanying documentation, and the recipient agrees to the terms of this EULA.
The Holodia Services may include measures to control access to the Holodia Service, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this EULA. Only Holodia Services subject to a valid license can be used to access online services, and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Holodia Services will not function properly.
The Holodia Services allow you to create content, including but not limited to gameplay maps, ghost tracks, screenshots or a video of your game play. In exchange for use of the Holodia Services, and to the extent that your contributions through use of the Holodia Services give rise to any copyright, design right or any other intellectual or industrial property right you hereby grant Holodia an exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose including, but not limited to the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual and industrial property rights by applicable laws and international conventions. If not expressly prohibited by mandatory legislation, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Holodia's and other players' use and enjoyment of such assets in connection with the Holodia Services and related goods and services under applicable law. This license grant to Holodia, and the above waiver of any applicable moral rights, survives any termination of this EULA.
The Holodia Services require an internet connection to access the Holodia Services or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Holodia Services to operate properly, you may be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in the documentation related to Holodia Services. By using the Holodia Services, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information. If you do not maintain such accounts, then the Holodia Services or certain features of the Holodia Services may not operate or may cease to function properly, either in whole or in part.
You may not use the Service to submit or link to any content which is defamatory, abusive, hateful, threatening, libelous, spam or spam-like, likely to offend, contains adult, nudity or objectionable content, contains personal information of others, or is racially, sexually, religiously, or otherwise objectionable or offensive, risks copyright infringement, encourages unlawful activity, or otherwise violates any laws. You may not use cheats, hacks, mods, exploits, or any other unauthorized third-party software designed to modify or interfere with the Service. You may not use the Service to harm anyone or to cause offence to or harass any person or disrupt the Service in a way that may negatively affect others' ability to fully enjoy the Service.
By installing, accessing or using the Holodia Services, you consent to these information collection and usage terms, including (where applicable) the transfer of data into a country outside of the European Union and/or the European Economic Area or the United States of America.
5. Payments and purchases of virtual goods
Holodia may license to you certain virtual goods to be used within Holodia Services. Unless otherwise specified, these virtual goods shall be deemed an integral part of the Software. These virtual goods may be licensed both for a fee using “real world money” and without any separate fee, as applicable from time to time. These virtual goods may also be licensed by using third party virtual currency, such as Facebook Credits or by using separate activation codes.
Any and all virtual goods are licensed to you on limited, personal, non-transferable, non-sublicensable and revocable basis and limited only for non-commercial use.
Please note that any payment for licenses for virtual goods or redemption of third party virtual currency is always FINAL AND NON-REFUNDABLE. Also please note that if you purchase Facebook Credits from Facebook, such transaction is governed by the agreement between you and Facebook and Holodia is not a party to the transaction.
Holodia may manage, regulate, control, modify or eliminate virtual goods at any time, with or without notice. Holodia shall have no liability to you or any third party in the event that Holodia exercises any such rights.
SUBJECT TO MANDATORY LEGISLATION, YOU ACKNOWLEDGE THAT HOLODIA IS NOT REQUIRED TO PROVIDE A REFUND FOR VIRTUAL GOODS FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS, WHETHER YOUR LOSS OF LICENSE UNDER THIS EULA WAS VOLUNTARY OR INVOLUNTARY.
6.1 Warranty for Physical software Products
Holodia warrants to you (if you are the initial and original purchaser of the Software) that, to the extent the Software is made available to you on a physical storage medium, the original storage medium holding the Software is free from defects in material and workmanship under normal use and service for 90 days from the date of purchase. If mandatory legislation in your jurisdiction requires longer in excess to the aforementioned 90 days, the length of the warranty is amended accordingly. If for any reason you find a defect in the physical storage medium during the warranty period, Holodia agrees to replace, free of charge, any physical storage medium and related Software discovered to be defective within the warranty period as long as the Software is currently commercially distributed by Holodia. If the Software is no longer available, Holodia retains the right to substitute a similar piece of Software of equal or greater value. This warranty is limited to the physical storage medium and the Software as originally provided by Holodia and is not applicable to normal wear and tear. This warranty shall not be applicable and shall be void if the defect has arisen through abuse, mistreatment, or neglect. Any implied warranties prescribed by statute are expressly limited to the warranty period described above.
When returning the Software subject to the limited warranty above, please send the original Software only to the Holodia address specified below and include: your name and return address; a photocopy of your dated sales receipt; and a brief note describing the defect and the system on which you are running the Software.
6.2 No other Warranties
NOTWITHSTANDING THE ABOVEMENTIONED WARRANTY FOR PHYSICAL STORAGE MEDIUM SPECIFIED IN SECTION 6.1 ABOVE, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE HOLODIA SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. HOLODIA, HOLODIA’S LICENSORS AND CHANNEL PARTNERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HOLODIA, HOLODIA’S LICENSORS AND CHANNEL PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE HOLODIA SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE HOLODIA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE HOLODIA SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER HOLODIA SERVICES OR THAT ANY ERRORS IN THE HOLODIA SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY HOLODIA, HOLODIA’S LICENSORS AND CHANNEL PARTNERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7. Limitations of liability
IN NO EVENT WILL HOLODIA, HOLODIA’S AFFILIATES, HOLODIA’S LICENSORS OR CHANNEL PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE HOLODIA SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT HOLODIA, HOLODIA’S LICENSORS OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 7, HOLODIA’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL HOLODIA’S, HOLODIA’S AFFILIATES’, HOLODIA’S LICENSORS’ OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE HOLODIA SERVICES OR ONE THOUSAND EUROS (EUR 1000), WHICHEVER LESS.
8. Other terms and conditions
TERMINATION: This EULA will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any Holodia Services. With regards to Software delivered on a physical storage medium you can end this EULA by destroying the Software and all copies and reproductions of the Software and deleting and permanently purging the Software from any client server or computer on which it has been installed.
EQUITABLE REMEDIES: You hereby agree that if the terms of this EULA are not specifically observed, Holodia will be irreparably damaged, and therefore you agree that Holodia shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
AFFILIATE: For purposes of this EULA, an “affiliate” or Holodia means any legal entity that is directly or indirectly controlled by Holodia for so long as such control lasts. Control shall exist through direct or indirect ownership of more than 50 % of the nominal value of the issued equity share capital or more than 50 % of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.
INDEMNITY: You agree to indemnify, defend and hold Holodia, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Holodia Services pursuant to the terms of the EULA; or (ii) your breach of this EULA.
MISCELLANEOUS: This EULA represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. Holodia reserves the right, at its discretion, to change, modify, add or remove portions of this EULA by posting the updated EULA on Holodia’s website. You will be deemed to have accepted such changes by continuing to use the Holodia Services. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall not be affected.
GOVERNING LAW AND DISPUTE RESOLUTION. This EULA will be governed by the laws of Switzerland without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply.
Any dispute, controversy or claim arising out of or relating to this EULA or the breach, termination or validity thereof shall be finally settled at Holodia's discretion (i) at your domicile's competent courts; or (ii) by arbitration in accordance with the Rules for Expedited Arbitration of the Arbitration Institute of the Swiss Chamber of Commerce. The arbitration shall be conducted in Lugano, Switzerland, in the English language. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST HOLODIA ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT firstname.lastname@example.org.