Immersal Cloud Services Terms
Immersal Ltd (“Immersal”) has developed proprietary Technology for persistent multi-user augmented reality experiences. Applications developed by Immersal or other authorized Developers based on Technology make use of Cloud Services, the cloud-based software system maintained by Immersal or other authorized Providers for the purposes of receiving, processing and storing Data submitted into Cloud Services through the Applications.
This Immersal End User License Agreement (“EULA”) shall define the terms and conditions of applicable to the License and the publishing and use of Application, as defined in this EULA, except as otherwise expressly agreed in the applicable License Agreement.
As used in the License Agreement and this EULA, the following terms and expressions, shall have the meaning set forth below:
“Account” means the account created in Cloud Service for each authorized User.
“Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity shall be considered an Affiliate as long as that interest is maintained.
“Analyses” means the analyses utilizing, in part, Data, Results or any other information derived from the use of Application pursuant to the Cloud Services Terms.
“Application” means any software application based on Technology or any component thereof, developed by Developer, whether a mobile app or a computer program. The use of Application shall imply the use of Technology and Cloud Services. Each Application shall be identified as being based on Technology, as further provided in Section 6.1(3)
“Cloud Services” means the cloud services made available by Provider to support the development and use of Applications.
“Cloud Services Terms” means the standard terms and conditions applicable to the use of Cloud Services.
“Data” means any information and data uploaded to Cloud Service by Users for the purposes of creating Results. Data can be for example photos, stored and processed by Provider as part of Cloud Services.
“Developer” means the developer of Application, whether Immersal, Provider or an authorized third -party developer.
“Documentation” means any documentation, specifications, instructions and any other materials related to Application or Cloud Services or the use thereof, along with any modifications and updates thereto.
“Effective Date” means the date of the commencement of the License, as confirmed in the License Agreement
“Fees” means any license fees and other charges payable by Publisher to Developer pursuant to the License Agreement, if any.
“Intellectual Property Rights” means, on a worldwide basis, all now known and hereafter known or acquired tangible or intangible
(i) rights associated with works of authorship including, without limitation, copyrights and any copyright registrations, applications, renewals and extensions thereof, database rights, and mask-works,
(ii) rights associated with trademarks, Cloud Service marks, trade names and similar rights, including, without limitation, design rights, and rights in trade dress and packaging,
(iii) trade secret rights,
(iv) patents, designs, algorithms and patent registrations, applications, renewals and extensions thereof,
(v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise recognized by any applicable laws, treaties and conventions,
(vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing), and
(vii) any and all causes of action arising from or related to any of the foregoing.
“License” means the license to publish and use Application.
“License Agreement” means the license agreement for the publishing of the Application for the Users, created as a written agreement or otherwise by way of Publisher publishing an Application for either personal or business use, subject to a Fee or for demonstration purposes without any Fee
“Publisher” means the publisher of the Application for the use of the Users
“Release” means an updated Application.
“Policies” means the operational guidelines and policies applied by Providers to provide and support the Cloud Service as valid from time to time.
“Provider” means Immersal or its authorized service provider operating and making available Cloud Services.
“Results” means the results of the use of Application, generated within Cloud Services based on Data, such as point clouds, maps and meshes.
“Subscription Period” means each period of subscription of the License, as specified in the License Agreement
“Technology” means any Immersal’s proprietary technology included in or used in the development of Application or Cloud Services or the operation thereof.
“Term” means the period of validity of the License Agreement.
“User” means the individual authorized to use the Application.
(1) Developer grants to Publisher the License specified in the License Agreement subject to the terms of this EULA. The License Agreement shall be in force from the Effective Date one Subscription Period at the time subject to the timely payment of the respective Fee until further notice by either party to terminate at the end of the then current Subscription Period.
(2) Developer warrants that it is authorized by Provider specified in the License Agreement to grant the License with access to Cloud Services.
3 PUBLICATION AND USE OF APPLICATION
(1) Publisher shall be fully responsible for the publication and use of Application in compliance with the terms of the License Agreement whether by itself or Users authorized by Publisher under the terms of the License Agreement.
(2) Each User shall create an individual Account in Cloud Service with username and password before being able to make use of Application to create Results. Publisher shall be responsible for all use of Application with usernames and passwords granted to Users pursuant to the license to Publisher.
(3) Publisher may also set up User management itself or through a single account by multiple Users sharing the same ID and password.
(4) Users may be either employees or directors of Publisher and Publisher shall be fully responsible for the compliance of Users with the terms of the License Agreement. Publisher shall be responsible for any use of Application by Users that have received their access right pursuant to the License Agreement.
(1) Publisher or User shall not, except as expressly authorized under the License, in respect of Application, Cloud Services or Documentation:
(i) expose any underlying programming interfaces;
(ii) disclose the source code of any software except as expressly allowed in the applicable license terms; or
(iii) remove or alter any copyright or other proprietary notice;
(iv) disassemble, decompile or otherwise reverse engineer software or otherwise attempt to learn the source code, or algorithms thereof;
(v) copy, alter or modify software; or
(vi) allow others to do any of the foregoing.
(2) Publisher or User shall promptly notify Developer after having become aware of any unauthorized use of the whole or any part of Application, Cloud Service or Documentation by any third-party.
During the Term, Developer shall provide Publisher and Users limited general technical support through a developer forum or in such other form as decided by Developer from time to time. Developer shall have no responsibility for providing additional support directly to the Users of Applications created by other Developers.
Developer may from time to time at its sole discretion provided new Releases to the Application. Provider shall have no obligation to provide any Cloud Services to the older versions. New Releases may be subject to separate license terms and additional Fees, as provided by Developer at the time of the Release.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Application and Cloud Services
(1) The License Agreement shall not be deemed to result in the sale, transfer or any other conveyance of any Intellectual Property Rights
(2) Immersal, Provider and Developer and their third-party licensors shall always retain all their respective title and Intellectual Property Rights to Application and Cloud Services, all modifications thereto, copies and derivative works thereof or Releases (by whomever produced) and all related Documentation and materials. Any third party software included in Application shall be subject to the licensing and other terms and conditions of the respective third party.
(3) The Developer shall ensure that a graphical logo is included and displayed in the Application created by the Developer in a form made available by Immersal at immersal.com from time to time, indicating that the Application is based on the Technology.
(4) Any publication or use of Application in deviation to the License Agreement is expressly forbidden and may cause termination of the License Agreement upon Developer’s notice to Publisher according to Section 12(1).
(5) For the avoidance of doubt, Immersal shall retain all rights to the Technology.
All Intellectual Property Rights and title to Results shall at all times belong to Provider and Publisher shall receive as a part of the License an unlimited and royalty-free right of use and distribution to its Results.
6.3 Non-Assertion of Rights
Publisher covenants, on behalf of itself and its successors and assigns, as well as on behalf of any Users, not to assert against Immersal, Provider, Developer, their Affiliates or licensors, any rights, or any claims of any rights, in Application, Cloud Service, or Documentation.
7 FEES AND PAYMENT
(1) Developer may amend Fees by informing the new Fees to Publisher at the latest two (2) months before the beginning of the Subscription Period when they enter into force. If Publisher does not accept the new Fees, Publisher may terminate the License Agreement before the new Fees enter into force.
(2) Publisher shall pay Fees against an invoice in advance per the Subscription Period. Upon entering into the License Agreement, Developer shall invoice Fees for the period from the beginning until the end of the Subscription Period.
(3) Interest on overdue payments shall accrue at the rate of eight percent (9%) per annum from the due date to the actual date of payment.
(4) Fees are exclusive of any and all taxes, fees and duties, including, without limitation, withholding tax, value added tax and sales tax, and Publisher shall be responsible for the payment of all such taxes (excluding taxes based on taxable income). Otherwise each party shall bear responsibility for its own possible tax liabilities created as a result of the License Agreement.
(5) After prior written notice, Developer may suspend Publisher’s use of Cloud Service until payment is made. Publisher cannot withhold, reduce or set-off fees owed during the Term. All License Agreements are non-cancellable and fees non-refundable.
(1) Developer may use Publisher's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of its marketing efforts (including reference calls and stories, press testimonials or site visits).
(2) Developer may share information on Publisher with its Affiliates and Immersal for marketing and other business purposes and it has secured appropriate authorizations to share Publisher employee contact information with Immersal.
9 LIMITED WARRANTY AND DISCLAIMER
(1) Developer warrants that for a period of ninety (90) days from the granting of License, Application and the operation thereof substantially conforms to Documentation under normal use. Except for the foregoing, Application is provided “as Is”. Publisher’s exclusive remedy and the entire liability of Developer under this limited warranty will be, at Developer’s sole discretion, sending a repaired or replacement version of Application to Publisher to be installed by Publisher at Publisher’s cost, or refund of Fees paid for License for the then current Subscription Period.
(2) In no event shall Developer warrant that Application is error free or that Publisher will be able to operate Application without problems or interruptions.
(3) This warranty shall not apply if Application
(i) has been altered or modified (by any other than Developer);
(ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Developer;
(iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or
(iv) is provided to Publisher for free.
(4) Except as specified in this limited warranty, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, noninfringement or arising from a course of dealing, usage, or trade practice, are excluded to the extent allowed by applicable law. Developer shall not be liable to Publisher or user for any damage relating to any Applications created by any other Developers.
(1) Developer shall indemnify, defend and hold Publisher and Users, their officers, directors and employees harmless from any claims, demands, losses, damages, costs, expenses (including reasonable attorney’s fees) arising out of any claim by a third-party whose rights have been infringed to the extent they are based on that Application (excluding third-party software) infringes any copyright, trade secret, patent, or trademark right of a third-party provided that Publisher
(i) promptly notifies Developer in writing of such presented claims;
(ii) permits Developer to defend or settle the claims on behalf of Publisher; and
(iii) gives to Developer, upon request and free of charge, information and assistance available and the necessary authorization for such defense.
(2) If in Developer’s reasonable opinion Application infringes third-party Intellectual Property Rights or if such infringement has been confirmed in a trial, Immersal shall and may at its own expense and discretion either
(i) obtain the right to continue use of Application for Publisher;
(ii) send to Publisher replacement that complies with the License Agreement; or
(iii) send to Publisher modified Application where the infringement has been eliminated in such a manner that the modified Application complies with the License Agreement.
(3) Modified or replacement Application will be installed by Publisher at Publisher’s cost. If none of the above-mentioned alternatives is available to Developer on reasonable terms, Publisher shall, at the request of Developer, stop using Application and return it, and Developer shall refund the Fee paid by Publisher for the then current Subscription Period, if any.
(4) Developer shall, however, not be liable if the claim results from
(i) use of Application in a modified form or in combination with software or materials not furnished by Developer;
(ii) any content, information, or data provided by Publisher or third parties;
(iii) alteration of Application by Publisher or any third-party not authorized by Developer, or
(iv) that could have been avoided by the use of a Release and Release is offered for use to Publisher.
(5) Developer’s liability for infringement of Intellectual Property Rights shall be limited to this Section 10.
11 LIMITATION OF LIABILITY
(1) To the extent permitted under applicable law, and except for breaches of Section 2 (License) or breaches of Developer’s Intellectual Property Rights, under no circumstances
(i) shall either party be liable to the other party or their contracting parties for any indirect, incidental, consequential, special, punitive or exemplary damages arising out of or in connection with the License Agreement.
(ii) shall either party's liability to the other party for any claim arising out of the License Agreement exceed the amount of Fees paid by Publisher to Developer during the twelve (12) months prior to the occurrence giving rise to such claim.
(2) The obligations in the License Agreement, including but not limited to any and all indemnities and warranties set forth herein, are from Developer only and are not offered on behalf of any other party.
(1) Either party may terminate the License Agreement to end at the end of the then current Subscription Period. In addition, either party may terminate the License Agreement with immediate effect by notice in writing in the event
(i) the other party materially breaches any of its obligations under the License Agreement, unless the breach is remedied within a fourteen (14) day period following the notice, or
(ii) the other party is or becomes the subject of bankruptcy or insolvency proceedings or has an administrator, receiver or liquidator of its assets appointed or otherwise ceases payments.
(2) Publisher shall not be entitled to any refund of Fees already paid or due. Upon termination of the License Agreement, Publisher shall on the date of termination
(i) cease to use Application and access Cloud Services;
(ii) upon instructions and option of Developer either return or destroy all tangible copies of Application and Documentation together with all reproduction and modifications thereof; and
(iii) give Developer a written guarantee that Publisher has complied with all of its obligations under this Section.
(3) Section 1 (Definitions), Section 9 (Limited Warranty and Disclaimer), Section 10 (Indemnification and Limitation of Liability), Section 12 (Term and Termination) and Section 13 (Miscellaneous) shall survive any termination of the License Agreement.
Any notice under the License Agreement shall be in writing and shall be delivered by e-mail to the e-mail address indicated in the License Agreement. Notices shall be deemed effective (the next day after the sending of the e-mail.
The License Agreement or License granted thereunder may not be assigned or sublicensed by Publisher in whole or in part without the prior written consent of Developer, such consent not to be unreasonably withheld or delayed. However, either party may assign the License Agreement with notice to the other party in the event of a merger, acquisition or similar corporate activity provided that the surviving entity agrees to be bound by the terms of the License Agreement.
This EULA, Cloud Services Terms or any other standard terms referred to herein may be modified from time to time by Developer by informing Publisher of the same in writing. Except for amendments to Fees as defined in Section 7(1), the changed terms shall become binding upon Publisher at the commencement of the next Subscription Period unless Publisher informs Developer in writing within thirty (30) days from Developer’s notice that it does not accept such changes, in which case the License Agreement shall terminate upon the end of then current Subscription Period.
13.4 Governing Law
The License Agreement shall be governed by and construed in accordance with the laws of Finland. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the License Agreement and shall be strictly excluded in all proceedings.
13.5 Dispute Resolution
All disputes arising under or in connection with the License Agreement, its negotiations, performance, breach, existence or validity shall be primarily settled by negotiation and finally by arbitration in Helsinki, Finland, in accordance with the Arbitration Rules of the Finland Chamber of Commerce by one (1) arbitrator and in English language.