End User License Agreement
This is the End User License Agreement (“EULA”) of Act-3D, a Dutch limited liability company with its office at the Hoofdstraat 10 in Sassenheim and registered with the Dutch Chamber of Commerce under registration no. 27343208 (“Act-3D”). This EULA applies to the 3D rendering software made available by Act-3D under the name ‘Lumion’ including any future patches, updates, upgrades, any related software (the “Software”) as well as associated documentation made available by Act-3D from time to time (the “Documentation”).
You are only allowed to use the Software if you have obtained a valid license via www.lumion.com (the “Website”) or by other means (e.g. by contacting Act-3D directly, Lumion Reseller etc). During the purchasing process, you will have to explicitly accept this EULA. This EULA governs all use of the Software by you or any of your employees, subcontractors or third parties engaged by you (insofar any such use is allowed under this EULA). You are responsible for compliance with this EULA by yourself and any employees, subcontractors or third parties who obtain access to the Software under this EULA. We recommend that you read this EULA carefully.
All capitalized definitions in this EULA, both in their plural and singular form, are defined as indicated in this article:
1.1. Documentation: the documentation related to the Software made available by Act-3D via the Website or otherwise.
1.2. End User: a natural or legal person acting in the exercise of a profession or business, with whom Lumion concludes the EULA.
1.3. EULA: this End User License Agreement between Act-3D and End User, including any Annexes thereto.
1.4. Customer: The natural or legal person who purchases the Software for their own use as an End User, or on behalf of a company for one or more End Users.
1.5. Intellectual Property Rights: all intellectual property rights and related rights, including, but not limited to, copyrights, database rights, domain names, trade name rights, trademark rights, design rights, neighboring rights, patent rights as well as rights to know-how.
1.6. Lumion reseller: Third party that is authorized to resell Lumion Licenses.
1.7. My Account: Web portal where licenses are registered and managed.
1.8. Party: Customer and Act-3D, jointly or separately.
1.9. Software: the 3D rendering software made available by Act-3D under the name ‘Lumion’ including any future patches, updates, upgrades, as well as any related additional software and documentation.
1.10. Seats: the agreed number of endpoint devices (desktops or laptops) on which the Customer can use the Software simultaneously.
1.11. Subscription Term: the term for which Customer has entered into the subscription for the Software with Act-3D.
1.12. Website: Act-3D's website, accessible via the lumion.com domain, or subdomains and other domain extensions.
2.1. The Customer can download the Software directly via the Website. Installation of the Software is the responsibility of the Customer.
2.2. The Software is only suitable for installation on laptops or desktops (also referred to as ‘endpoint devices’). The Customer is responsible to ensure that the endpoint device meets the system requirements communicated by Act-3D via the Website or as part of the Documentation.
2.3. The Customer recognizes that the system requirements may change for any updated or upgraded versions of the Software. Act-3D cannot provide any guarantees as to the functioning of the Software if the endpoint device does not meet the system requirements and is not liable for any associated damages incurred by the Customer.
3.1. It is prohibited to use the Software in any manner that is in violation of the EULA or applicable laws and regulations. Additionally, use of the Software in a manner that may cause hindrance or loss and/or damage to Act-3D or any third party is expressly not permitted.
3.2. Customer may only use the Software for his own use in accordance with the provisions of this EULA. Customer may not:
a) reverse engineer the source code of the Software or decompile the Software, except to the extent permitted by provision of mandatory law;
b) Copy the Software to third parties;
c) sublicense the Software or make it available to third parties, by means of rental, Software-as-a-Service constructions or otherwise;
d) make changes to the Software, except to the extent permitted by mandatory law;
e) remove or make unreadable any indications of Act-3D as owner of the Software or parts thereof.
f) to circumvent any security measures of the Software.
3.3. If Act-3D determines that the Customer and/or other End User (if applicable) has violated the EULA or applicable laws and regulations, or receives a complaint in this regard, Act-3D may take measures to end the violation. These measures may include the suspension or termination of access to the Software in whole or in part.
3.4. The Customer and/or other End Users (if applicable) will follow all reasonable instructions issued by Act-3D related to the use of the Software and will use the Software in accordance with the Documentation.
3.5. The Customer is responsible for any use made of the Software either by the Customer itself or by any other End Users (if applicable). Act-3D may recover from the Customer any loss and/or damage incurred as a result of violations of the EULA. The Customer indemnifies and holds harmless Act-3D against any and all third-party claims resulting from a violation of the EULA by the Customer and/or other End Users (if applicable).
4.1. All Intellectual Property Rights pertaining to the Software, the accompanying Documentation and any other materials provided to the Customer (or End Users) will remain vested in Act-3D. This applies even after the Agreement is terminated, regardless the reason for termination. The Customer and/or End User only obtains the rights and permissions explicitly granted in this EULA.
4.2. All Intellectual Property Rights pertaining to materials created by any End User when using the Software shall remain vested with the respective End User.
5.1. Act-3D hereby grants the Customer a right to use the Software in accordance with this EULA. Unless expressly agreed otherwise, the license is limited to the number of Seats purchased.
5.2. After purchasing a license, the Customer will be provided with a license key via e-mail. The Customer can use this license key to activate the Software on multiple endpoint devices. However, the Software can only be used simultaneously on the number of Seats purchased by the Customer.
5.3. In order to be able to use the Software, the Customer and/or other End User (if applicable) must first launch the license manager which will be installed on the endpoint device as part of the installation process. The license manager will monitor the number of Seats in use and requires an active connection with the internet. The Customer and/or other End User (if applicable) will only be able to launch the Software if there are Seats available. It is not possible to launch and use the Software without the Installer actively running or without an active connection to the internet.
5.4. The licenses Customer purchases may only float within the branches located within the country boundaries where Customer (who purchased the Software) has its branch office. The licenses are expressly not intended to float beyond these country borders.
5.5. The license granted by Act-3D is non-exclusive, non-transferable and non-sublicensable. The license is provided on a subscription basis and will only be valid for the agreed upon term.
5.6. Act-3D offers five different license packages, which are ‘Free trial for businesses’, Not For Resale’ (hereinafter: NFR), ‘Lumion for students’, ‘Lumion Standard’ and ‘Lumion Pro’. This EULA applies to all of these packages. Different provisions apply to each package.
5.7. The package 'Free trial for businesses' provides Customer and/or End User with the usage right to the Software free of charge, if Customer and/or End User is acting in the course of a profession or business. End User receives a license as referred to in article 5.4. for the duration of 14 days, after activation of the license code. Through this usage right, End User obtains access to the complete content library of the Software. If Act-3D has a justified suspicion that Customer and/or End User is not acting in the exercise of a profession or business, Act-3D has the right to block End User's access. The package 'Lumion NFR provides Customer and/or End User with the usage right to the Software free of charge for a set period, intended to familiarize the user with the program and to carry out test deployments. NFR’s are issued and revoked on the sole discretion of Act-3D.
5.8. The package 'Lumion for students' provides free of charge a usage right to End Users enrolled in an accredited education, namely students of universities with an architecture faculty in by Act-3D selected countries, for which this Software is required. End User can find the selected countries via www.lumion.com/find-reseller.html. This package entitles the End User to use the Software 365 days after activation of the license key. This license can be renewed annually until the student is disenrolled from an accredited education for which this Software is required. End User will, at Act-3D's first request before or during the term of the license, provide current information regarding enrollment in the approved program. If End User fails to provide this information within 14 days or provides incomplete information or it is evident from the information that End User no longer complies with the conditions, Act-3D is entitled to temporarily or completely block End User's access to the Software. This license is for study purposes only and expressly not intended for commercial purposes. If Act-3D has a justified suspicion that the license is being used for commercial purposes, Act-3D will notify End User and is entitled to temporarily or completely block End User's access to the Software. End User is aware and agrees that in this package the Renders are watermarked and projects saved in the trial cannot be opened in other versions of Lumion.
5.9. The package 'Lumion Standard' provides the Customer and/or End User with a right of use, as referred to in Article 5.4., against payment, for the duration as agreed by the Parties on a subscription basis. The duration of the right of use commences at the time End User activates the license. End User acquires a license that is limited to approximately 33 percent of Lumion's entire content library. The available portion of the content library is predetermined by Act-3D. Furthermore, the right of use includes Limited rendering effects.
5.10. The package 'Lumion Pro' provides the Customer and/or End User with a usage right, as referred to in Article 5.4, against payment, for the duration as agreed by the Parties on a subscription basis. The duration of the usage right starts at the time End User activates the license. End User acquires the right to use the Software whereby End User can use the full content library and all rendering effects.
6.1. Act-3D will endeavor to keep the Software up-to-date but cannot provide any guarantees as to the functioning to the Software other than those provided in article 6.2 below.
6.2. Act-3D guarantees:
a) that the Software substantially operates as described in the Documentation, which may be amended by Act-3D from time to time;
b) that the Software, to the best of its knowledge, does not contain any viruses, backdoors or malicious routines;
c) that the Software does not infringe upon third-party rights (including Intellectual Property Rights), provided that the Software is used in accordance with this EULA and the Documentation; and
d) it will use its best efforts to investigate any reported bugs as soon as is reasonably practical and to repair such bug or suggest a workaround (if possible) within a reasonable period of time, provided however that Act-3D may postpone resolution to the next update or upgrade if the bug is considered non-critical.
7.1. The Parties will treat as confidential the information they provide to each other before, during or after the performance of the EULA if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential. The Parties also impose this obligation on their employees and on the third parties engaged by them for the performance of the EULA. These provisions continue to apply after the EULA ends for any reason whatsoever and for as long as the disclosing Party has the right to invoke the confidential nature of the information.
7.2. Each Party shall use the same degree of care in protecting the confidential information of the disclosing Party as it uses in protecting its own confidential information, but in no event less than reasonable care.
7.3. This article shall not apply to any information which:
a) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in breach of the EULA;
b) was within the receiving Party's possession prior to its disclosure to it by or on behalf of the disclosing Party;
c) becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party not under obligation to keep such information confidential; or
d) is developed independently by the receiving Party.
1.4. In the event that a receiving Party becomes legally compelled to disclose any confidential information provided pursuant to the EULA, such receiving Party shall provide the disclosing Party with prompt written notice so that such disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of the EULA insofar as permitted by law.
1.5. Any confidential information provided hereunder shall remain the exclusive property of the disclosing Party. Promptly after the expiration or termination of the EULA for any reason, each receiving Party shall deliver to each disclosing Party all originals and copies of any material in any form containing or representing the confidential information in its possession or shall destroy the same at the request of the disclosing Party relative to such confidential information.
1.6. Act-3D always reserves the right to use the knowledge obtained by the performance of the EULA for other customers to the extent this does not involve confidential information of the Customer.
8.1. Act-3D's liability for any damages or other claims incurred by Customer and/or other End Users (if applicable) as a result of an attributable failure by Act-3D to perform its obligations (including guarantees) under the EULA, as a result of an unlawful act by Act-3D, its employees or third parties engaged by it, or on any other ground, is limited per damage causing event, where a series of related events counts as one event, to an amount equal to the amounts Act-3D received from the Customer (excluding VAT) under the EULA in the six (6) months preceding the damaging event. However, the total amount to be paid for direct damage can never exceed €1.000,- per event or €3.000.- per year.
8.2. Without prejudice to the foregoing, Act-3D is expressly not liable for indirect damage suffered by the Customer and/or other End Users. For the purposes of this EULA, indirect damages shall be understood by the Parties to mean only
a) lost sales or profits;
b) missed savings;
c) damages for delay;
d) consequential damages;
e) diminished goodwill; or
f) damages resulting from business interruption.
8.3. In the event of an attributable failure to perform the EULA, Act-3D shall only be liable if the Customer and/or other End Users immediately and properly gives Act-3D notice of default in writing, granting Act-3D a reasonable period of time to cure the failure, and Act-3D continues to fail imputably even after that period has expired.
8.4. Act-3D shall ensure that it has adequate insurance throughout the term of the EULA to cover the risks arising from the EULA.
8.5. Any limitation or exclusion of liability agreed between the Parties shall not apply if and insofar as
a) the damage is the result of intent or deliberate recklessness on the part of the management of the Party causing the damage;
b) the damage is the result of death or bodily injury; or
c) the limitation or exclusion would otherwise be in violation of applicable laws and regulations.
9.1. Act-3D will not be obliged to perform the EULA if performance is prevented as a result of force majeure.
9.2. The parties will in any case consider the following to be force majeure, without limitation: fire, floods, strikes, power failures, telecommunications infrastructure failures, force majeure on the part of Act-3D's own suppliers, network attacks, import and export impediments, war and terror. Any liquidity problems on the Customer's part do not qualify as force majeure.
9.3. To the extent that Act-3D had already fulfilled part of the EULA by the time the force majeure situation arose or will be able to fulfil part of the EULA, and such partial fulfilment can be ascribed an independent value, Act-3D is entitled to invoice for such fulfilment separately.
9.4. In the event of force majeure, Act-3D can suspend the performance of the EULA for as long as the situation continues. If the situation lasts longer than 3 months, both parties will be entitled to terminate the EULA in writing, without any obligation to pay the other party compensation.
10.1. Act-3D/Lumion releases versions, major and minor updates from time to time. They improve the functionality of the software with new features, add improvements to existing features or contain bug-fixes.
10.2. The updates are identified with a numbering system. By way of illustration, in the example, “Lumion 12.5.1”, the version number is 12, the major update number is 5 and the minor update number is 1.
10.3. Versions, major and minor updates can be issued at any time, completely dependent on the sole discretion of Act-3D. The Software will alert the End User to the release of any available version or update. The alert requires an active internet connection. Installation of a new version or updates is performed only with the End User’s explicit consent. No liability is accepted for damages caused by bugs when an End User has neglected to install a version, major or minor update in which the bug was resolved.
10.4. Any new version or update may be subject to additional conditions. End Users will be informed in advance and will have an opportunity to refuse the installation of a new version or an update. End Users may be continuously requested to install the latest version or update as long as the End User has not installed it. Before installing the new version or update, the End User must accept the additional conditions, which are included in the EULA.
10.5. If you hold a valid subscription license, then you are entitled to the most recent version, major and minor update of Lumion. If you hold a perpetual license then it will be necessary to upgrade to, or buy a new, subscription license to get access to the most recent version, major or minor update of Lumion.
10.6. The Software may contain open source software (OSS). Specific conditions apply to this. An overview of OSS components used and applicable license conditions can be consulted via our website here.
11.1. Act-3D shall provide End Users with a reasonable level of support via email or other communication channels indicated on the Website: support.lumion.com. Act-3D endeavors to respond to any support request as soon as possible, but cannot provide any guarantees in this regard.
12.1. As compensation for the granted license to use the Software, End User is required to pay the agreed upon price as stated on the Website or in My Account
12.2. Licenses are provided on a subscription basis or is some specific cases as a one of fee. Fees are prepaid by End User to Act-3D or to a Lumion Reseller. All prices are in euros or in some specific regions in US Dollars and exclusive of Taxes.
12.3. Act-3D will invoice End User for the license fees up front per (payment) term. All payments provided for in the EULA shall be made upfront before the License is activated. Act-3D may invoice electronically.
12.4. In case Customer does not make payment or does not make payment on time, Act-3D has the right to suspend its obligations under the EULA, until Customer and/or End User has fulfilled its payment obligation. Suspension may include making the Software inaccessible to Customer and/or End User.
12.5. If Act-3D has not received payment after the due date, and without prejudice to any other rights and remedies of Act-3D, the statutory commercial interest, as referred to in Section 6:119a of the Dutch Civil Code, shall accrue on the outstanding amount. Furthermore, End User shall be obliged to pay all the judicial and extrajudicial collection costs, including the costs of lawyers, bailiffs, and debt-collection agencies.
12.6. Without prejudice to all other rights, Act-3D has the right to suspend the EULA after the expiration date, until Customer and/or End User has fulfilled its payment obligation.
13.1. If a term or an additional seat has been bought with a discount, that discount will only apply for that specific term and/or seat. For the following terms and/or existing seats standard pricing will apply.
14.1. When buying from the Website or My Account, a Lumion subscription or an extra seat, auto renewal for your next payment term is enabled. Auto renewal can be disabled manually at any time from Lumion My Account.
15.1. Act-3D has the right to periodically perform an audit to verify End User’s compliance with this EULA, in particular related to the use of the license manager software and available Seats. The audit shall be performed by an independent third party (such as a chartered accountant) in confidence. The auditor may only report the data relevant for the compliance verification to Act-3D. The costs of the audit shall be borne by Act-3D, unless the report reveals that End User has failed to pay the right license fee.
16.1. The EULA shall enter into force when the Customer purchases a license for the Software and shall remain valid for the Subscription Term. The Customer is expressly not entitled to terminate the EULA in the interim, unless if explicitly stated otherwise in this EULA.
16.2. Notwithstanding the foregoing, Act-3D may immediately terminate the EULA by providing a written notice to the Customer, without the requirement for notice of default or judicial intervention:
a) if the other Party has been granted suspension of payments, whether provisionally or not;
b) if the other Party is declared bankrupt; or
c) if the other Party’s company is dissolved or terminated.
16.3. Without prejudice to any other rights and remedies hereunder, Act-3D shall be entitled to terminate or rescind the EULA if the Customer and/or other End Users (if applicable) commit a breach of any of its obligations under this EULA and such breach is irremediable or – if such breach is remediable – the Customer and/or any other End User fails to remedy that breach within a period of thirty (30) days after being notified in writing of the breach by Act-3D.
16.4. The termination of this EULA shall not relieve either Party of the obligation to pay any fees accrued or payable to the other Party prior to the date on which the EULA will terminate.
16.5. After termination of this EULA (regardless of reason) End User must cease all use of the Software. In addition, End User must remove all copies (including backup copies) of Software from all computer systems under control of End User.
17.1. Act-3D reserves the right to change or supplement the EULA at any time, if and insofar the amendment is necessary because of (changing) laws and regulations or if it concerns a change of minor importance. In these events, the Customer is not entitled to terminate the EULA.
17.2. In the case where Act-3D announces a substantive change that is of major importance, Act-3D will make every effort to announce the changes or additions to the Customer by email at least thirty (30) days prior to their effective date. In such event, the Customer has the right to terminate the EULA by giving written notice at least fourteen (14) days after the change is announced. In case of absence of objection or continued use of the Software after fourteen (14) days after the announcement by Act-3D, the amended or supplemented terms shall be deemed accepted.
18.1. Act-3D is entitled to adjust its (license) fee(s) and prices. The Customer will be informed by email of upcoming adjustments at least forty five (45) days in advance. In the event of a price increase, the Customer has the right to terminate the EULA by giving written notice to Act-3D within thirty (30) days after the price increase is announced. No refund shall be given when the EULA has been canceled.
18.2. Notwithstanding the foregoing, Act-3D can increase its prices without prior announcement and without a right of the Customer to terminate the EULA in the event Customer adds additional Seats during the subscription term.
19.1. In case the Customer desires more Seats, the Customer can purchase additional Seats via the online customer portal of Act-3D or Lumion Reseller. Act-3D will endeavor to make the additional Seats available as soon as possible.
19.2. Additional seats purchased during a subscription term can be purchased at a prorated price for the remaining subscription term.
19.3. The customer can downgrade seats for the upcoming subscription term. The Customer cannot downgrade the number of Seats during the subscription term.
20.1. Dutch law applies to this EULA. Unless dictated otherwise by mandatory law, all disputes arising in connection with this EULA shall be brought before the competent Dutch court for the principal place of business of Act-3D.
20.2. A finding that any particular provision of this EULA is legally void shall not affect the validity of the entire EULA. In such a case the Parties shall determine a replacement provision that is legally valid and approximates the intent of the offending provision as much as possible.
20.3. Act-3D may assign its rights and obligations under this EULA to a third party that acquires the relevant business or the copyrights to Act-3D from her.