Last Update: July 2023
If You do not agree to all of the terms of the Agreement, then Linearity is unwilling to provide the SaaS to You and You should click the ‘I DO NOT ACCEPT’ button, close the browser window/tab, immediately cease and refrain from accessing or using the SaaS or the underlying Software.
If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version shall prevail. The Customer should keep a copy of this ToU for their records. The latest version of this ToU appears in its entirety on http://www.linearity.io/terms-of-use. Linearity reserves the right, in its sole free discretion, to make reasonable amendments to this Agreement from time to time provided that disputes arising hereunder will be resolved in accordance with the Terms of the Agreement in effect at the time the dispute arose. Linearity will inform the Customer after each amendment in due way and the Customer should review the published Agreement from time to time to become aware of changes. Material changes to these terms will be effective upon the Customer’s first use of the Software with actual knowledge of such change. Any use of the Software by the Customer after the amended Agreement becomes effective constitutes the Customer’s acceptance of the amended Agreement. If the Customer does not accept amendments made to this Agreement, then this Agreement will be immediately terminated pursuant to the Sec. 10.
1. “AktG” means German Stock Company Act (Aktiengesetzbuch)
2. “Automatic Renewal” means a feature that provides for the renewal of a license at the end of a license Term without the need for further notification.
3. “BGB” means German Civil Code (Bürgerliches Gesetzbuch)
4. “Business” means any natural person, legal entity or partnership, having the legal capacity that is not engaged in personal or familial usage in ordering or receiving Software of Linearity while performing its commercial or independent professional or other work.
5. “Competitor” means a company that offers a product that may have features comparable to the Software’s functionality.
6. “Data” means electronic data recorded or manipulated by the Hard- and Software and stored as part of the Linearity Product or Linearity Service, in particular, but not limited to, content uploaded via the Software.
7. “To Decompile” means to reverse engineer, decompile, or disassemble the Software for the purpose of achieving interoperability with other computer programs according to section 69 e UrhG.
8. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by Linearity with the Software in any manner (including on USB, hard drive, or via online access).
9. “External User” means any individual (not an organization) using the Linearity Software who is not: (i) one of the Licensee’s full-time, part-time or temporary employees; or (ii) any temporary personnel or an independent contractor on assignment at the Licensee’s place of business or work-site.
10. “HGB” means German Commercial Code (Handelsgesetzbuch).
11. “Licensee” means the Licensee, or the company, organization, or entity the Licensee represent as their authorized legal representative.
12. “Linearity Product” means one of Linearity’s proprietary products including the related marketing materials, Documentation, ToUs, and other supplemental materials.
13. “Linearity Service” means services to be performed by Linearity staff.
14. “Software” means Linearity software provided as App or SaaS and associated documentation that accompanies these ToU, which includes the associated media and Linearity internet-based services.
15. “Term” means the term of the license obtained by the Licensee for Production Use.
16. “Time Clocks” means any time clocks, copy-protection mechanisms, or other security devices embedded in the Software which may deactivate the Software after the expiration of any applicable subscription or license Term. Time Clocks may require an Internet connection and transfer transmission of Data captured to Linearity.
17. “Upgrades” of the Software means any modifications, enhancements, revisions thereto. Classification of such modification as an Upgrade is at Linearity’s sole discretion.
18. “UrhG” means German Copyright Act (Urhebergesetz).
19. “User” or “End User” means any individual or entity authenticated using the Software that is not an External User.
20. “User Generated Content” means content or Data generated by a User and stored in Linearity App or SaaS.
21. “Volume means the number of Users and or usage volume allowed (e.g. in cloud storage, files, seats, function calls or other) by the license or subscription obtained by the Licensee for Production Use.
22. “Volume Checking” means any code, copy-protection mechanisms, or other security mechanisms embedded in the Software which may deactivate the Software after the Volume is used up. Volume Checking may require an Internet connection and transfer transmission of Data captured to Linearity.
1. LICENSE OF APP AND/OR PROVISION AS SOFTWARE AS A SERVICE
Linearity will make the Software available to the Customer and use commercially reasonable efforts to make the Software either as SaaS or downloadable, as applicable according to the Subscription Plan, twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which Linearity shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Linearity’s reasonable control, including, for example, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Linearity’s employees), Internet service provider failure or delay, hosting service provider failure or delay, Non-Linearity Application, User Generated Content or denial of service attack.
The Customer has the right to access and use SaaS subject to the terms of this Agreement and the Documentation. The Customer grants Linearity, its Affiliates according to section 15 AktG and applicable contractors a worldwide, limited-term license to host, copy, transmit and display their uploaded data information, and any Non-Linearity Applications and program code created by or for the User using a Service or for use by the User with the Services, as reasonably necessary for Linearity to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Linearity acquires no right, title or interest from the User or their licensors under this Agreement in or to any of the Customer‘s uploaded data information, Non-Linearity Application or such program code.
2. CLOUD STORAGE & SECURITY
Linearity will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Data by Linearity personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the Customer expressly permits in writing. Sec. 7 shall remain unaffected.
Linearity and the Customer will enter a Data Processing Agreement in accordance with Art. 28 EU-GDPR that includes technical and organizational measures to ensure the security of processing if necessary.
3. GRANT OF LICENSE – SOFTWARE AS A SERVICE
As and for so long as the Licensee complies with all of the terms of this Agreement, Linearity grants the Licensee the non-exclusive, non-sublicensable and non-transferable license to (a) install and use one copy of the Software limited to the Term and Volume as agreed upon and (b) use the Documentation that accompanies the Software for internal, non-commercial reference purposes only.
This granted license does not include any exploitation rights, in particular, but not limited to any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG). It is strictly prohibited to implement Linearity Software in any other hard- or software product without prior written consent by Linearity.
In case the Software is provided as SaaS no license is granted to the Customer. In particular, the provision of SaaS does not include any exploitation rights, in particular but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG). Linearity confirms that the usage of Services provided under this Agreement does not require from the Customer reproduction of Software or undertaking any of the actions mentioned in the previous sentence.
4. RESERVED RIGHTS
The Customer acknowledges and agrees that the Software is a proprietary product of Linearity protected by copyright and other applicable intellectual property laws and treaty provisions. The Customer further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with Linearity. Linearity retains all rights not expressly granted to the Customer in these SaaS with or without Customer’s knowledge or consent.
THE SOFTWARE IS EITHER LICENSED OR PROVIDED AS SOFTWARE-AS-A-SERVICE. THE SOFTWARE IS NEITHER SOLD NOR IS THE AUTHORSHIP TRANSFERRED.
5. REGISTRATION AND ACTIVATION
The Customer acknowledges that registration is recommended in order for the Customer and its users to utilize the full benefits of the Software.
6. NO RENTAL OR COMMERCIAL HOSTING
The Software is provided as SaaS for the Customer and its Users only. The Customer may only rent, lease, lend, or provide commercial hosting services with the Software upon Linearity’s prior written consent.
7. DATA CAPTURE AND USE
Linearity aims to provide the best user experience and uses use-tracking and machine learning to improve its Products. One of the main benefits of machine learning models is that they can be improved over time. To help Linearity provide and maintain the services, Customer agree and instruct that we may use Data (especially content uploaded to us) and technical information gathered as part of the Software to develop and improve our products and services. We understand that in some cases you may not want your content used to improve our products and services. You can opt out of having your content used for improvement by contacting email@example.com with your account details. Please note that in some cases this may limit the ability of our products and services to better address your specific use case.
Data captured in this form will only be used for Volume Checking, Time Clocks, and to improve Linearity Products and/or provide customized services to the Customer and/or User and will not be disclosed or disseminated to third parties except in an anonymized form.
8. BACKUP OF DATA
The setup of a functional hardware and software environment for use of the SaaS shall be solely in the Customer’s responsibility. The same shall apply to regular data backup.
9. RESTRICTIONS ON CERTAIN SOFTWARE
9.1. Software identified as demo, evaluation, and Beta versions may not be sold, bartered, or otherwise transferred. Such Software may not be used for any purpose other than the Licensee’s testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both the Licensee and Linearity.
9.2. Licensee shall under no circumstance be allowed to publish results of an evaluation or demo, including performance metrics, attributed or unattributed to Linearity without Linearity’s explicit written approval. Additionally, Licensee shall under no circumstance be allowed to discuss results or setup or share documents relating to the evaluation or demo of the Software with a Competitor.
If the Customer breaches the terms and conditions of this Agreement, Linearity may terminate this Agreement without prejudicing any of its other rights. In such event the Customer must cease use of the Software with immediate effect. Sections 1, 4, 11, 12, 13, 14 and 17 specifically survive termination.
11. LIMITED WARRANTY
11.1. State of the art: Unless expressly agreed otherwise, the SaaS provided by Linearity shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by Linearity, including those in the Documentation. Linearity does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of Linearity’s obligations under the Agreement.
11.2. Errors: The Customer is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence. The Parties acknowledge that Linearity Products are inherently complex and may not be completely free of errors. The following errors are excluded from Linearity’s warranty: (i) insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and (ii) defects discovered in any Linearity Product that has been modified, altered, or enhanced by anyone other than Linearity itself.
11.3. Rectification: Defects in the Software shall be rectified by Linearity within a reasonable period after notification of the defect. The rectification of defects shall be effected, at the Customer's choice, by way of repairing or substitution of the Software free of charge. The Customer’s right to reduce the Fee for the time the defect persists remains unaffected. The Customer is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if Linearity has been given sufficient opportunity to rectify the defect and such attempt has failed.
11.4. Limitation: If Linearity has provided the Customer with the SaaS against no payment whatsoever, e.g. during a strictly limited demonstration or evaluation period, defects in the Software shall be rectified by Linearity only in case they were resulting from gross negligent or intentional behavior of Linearity, provided however rectification of a defect in the Software is not otherwise mandatory according to statutory law.
11.5. Failure in rectification: It shall be assumed that the repair or substitution of Software has failed only if Linearity has been given sufficient opportunity to affect a repair or substitution delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by Linearity. If rectification of a defect in the form of repair or subsequent delivery is only possible for Linearity at unreasonable expenses, Linearity may refuse to rectify the defect and refer the Customer to their right to terminate the Agreement.
11.6. Source Code: In no event shall the Customer be entitled to demand the source code for the Software in regard to any defects.
12. HIGH RISK ACTIVITIES
The Software is not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the "High Risk Activities"). Accordingly, Linearity and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
13. LIMITATION OF LIABILITY
Notwithstanding the legal nature of the relevant claim, the following shall apply to the Customer’s damage claims and claims for expenses incurred in vain (Ersatz vergeblicher Aufwendungen):
13.1. Limitation of liability: Linearity shall be liable for any of the Customer’s damages resulting from gross negligent or intentional behavior of Linearity, which are due to culpable injury to life, body, and health, which arise due to the assumption of a guarantee or according to the German Product Liability Act (Produkthaftungsgesetz). In all other cases Linearity’s liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations which fulfillments allow the proper execution of the agreement in the first place and where the Customer may rely on the compliance with these obligations. Linearity’s liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to the Customer’s obligation for regular data backups according to Sec. 10 of this Agreement.
13.2. Foreseeable damages: Linearity’s liability in case of negligent infringement of material obligations of the agreement by Linearity shall be limited to foreseeable damages which are typical for this type of contract.
13.3. Exclusion: A strict liability of Linearity for defects existing at the time of entering into this Agreement pursuant to sec. 536 a para. 1, alt. 1 BGB is hereby expressly excluded.
13.4. Statute of limitations: All claims against Linearity for damages shall be statute barred six (6) months after delivery, in case the Customer is an enterprise, corporation, business or entrepreneur as defined under sec. 14 BGB. This shall not apply to any claims in tort.
13.5. Excluded liability: Linearity has no liability for any loss, damage, or misappropriation of data information provided by the Customer under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the SaaS or the Agreement or caused by User Generated Content.
13.6. Representatives: The foregoing limitations of liability also apply with regard to all Linearity’s representatives, including but not limited to its directors, legal representatives, employees, and other vicarious agents or advisors.
14. RESTRICTIONS IN USE
14.1. Unauthorized access: The Customer will use commercially reasonable efforts to prevent unauthorized access to or use of SaaS and Data, and notify Linearity promptly of any such unauthorized access or use and use SaaS and Data only in accordance with this Agreement, Documentation and applicable laws and government regulations.
14.2. Restrictions in use: The Customer will not (i) make any SaaS or Data available to, or use any SaaS or Data for the benefit of, anyone other than the Customer, unless expressly stated otherwise, (ii) sell, resell, license, sublicense, distribute, make available, rent or lease any SaaS or Data, or include any SaaS or content in a service bureau or outsourcing offering, (iii) use a SaaS to capture and store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) interfere with or disrupt the integrity or performance of any SaaS or third-party data contained therein, (v) attempt to gain unauthorized access to any SaaS or Data or its related systems or networks, (vi) permit direct or indirect access to or use of any SaaS or Data in a way that circumvents a contractual usage limit, or use any of Linearity SaaS to access or use any of Linearity’s intellectual property except as permitted under this Agreement, (vii) copy a SaaS or any part, feature, function or user interface thereof, (viii) copy Data except as permitted herein, (ix) frame or mirror any part of any SaaS or Data, other than framing on the User’s own intranets or otherwise for the Customer’s own internal business purposes, (x) access any SaaS or Data in order to build a competitive product or service or (xi) reverse engineer any SaaS (to the extent such restriction is permitted by law). Any use of the SaaS in breach of this Agreement, by the Customer that in Linearity’s judgment threatens the security, integrity or availability of Linearity SaaS, may result in Linearity’s immediate suspension of the SaaS, notwithstanding that Linearity will use commercially reasonable efforts to provide the User with notice and an opportunity to remedy such violation or threat prior to such suspension.
15. INTEGRATION OF 3RD PARTY SERVICES AND/OR ACCOUNTS
Third party accounts: Certain features of the SaaS allow Customer to integrate the service with third party services (the “Third Party Services”) like e.g. Google, Apple, etc. via Application Programming Interface (the “API”) provided by such third party. By enabling those features, Customer grants to Linearity access to data stored in Third Party Services provided via API and certain rights to use functions of Third Party Services provided via API to enable Linearity to identify relevant data to be stored within the SaaS or to be processed in order to provide the SaaS.
16. STATUTORY CONSUMER RIGHTS
Nothing in this Agreement is meant to contravene statutory rights that consumers may have pursuant to local law.
17. DISPUTE RESOLUTION AND GOVERNING LAW
17.1. Dispute resolution: Let's Try To Sort Things Out First. Linearity wants to address the Customer’s concerns without needing a formal legal case. Before filing a claim against Linearity, the Customer agrees to try to resolve the dispute informally by contacting firstname.lastname@example.org. Linearity will try to resolve the dispute informally by contacting the Customer via email. If a dispute is not resolved within 20 working days of submission, the Customer or Linearity may bring a formal proceeding.
17.2. Applicable law, jurisdiction: This Agreement has been drafted in accordance with the laws of Germany. Unless expressly prohibited by local law this Agreement shall be construed and interpreted on the basis of the laws of Germany, notwithstanding any conflicts of law provisions. If the English legal meaning differs from the German legal meaning of this Agreement and its terms, the German legal meaning shall prevail. The use of the term "shall" generally indicates a definitive obligation (müssen) that admits of no discretion on the part of the Party instructed. The German courts in Munich shall have exclusive jurisdiction over any claim arising under the Agreement or warranties. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
17.3. Language: If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version shall prevail.
The provisions of this Agreement shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
Should the Licensee have any questions regarding this ToU, please contact the Linearity authorized partner serving the Licensee, or write to: Linearity GmbH, Sophienstr. 6, D-10178 Berlin; Germany, [email@example.com].
20. CONFIDENTIALITY; PROPRIETARY RIGHTS; NAMING AS REFERENCE CUSTOMER
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Linearity includes non-public information regarding features, functionality and performance of the SaaS. Proprietary Information of Customer includes non-public data provided by Customer to Linearity to enable the provision of the SaaS (the “Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the SaaS or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data.
Linearity is entitled but not obliged to name a Customer who has acquired or used Linearity products in marketing material for potential customers of Linearity, in particular on its webpages. This shall be done at the general discretion of Linearity, provided however that Linearity shall remove any reference to Customer upon Customers’ request within 20 working days. Therefore, the Customer hereby grants to Linearity a right to use the name, logo or any other mark of the Customer (the “Customer Mark”) - including a mutually agreed upon a quote - , expressly limited to naming as a Customer of Linearity. Any farther-reaching use of a Customer Mark or publication of the actual use (e.g. of the specific case of application) requires the prior, written consent of the Customer. Linearity and the Customer are entitled to publish the existence of their general cooperation with the respective other contract partner.