(1) Capitalized terms used in these Immersal Cloud Services Terms (“Terms”) shall be as defined in the Immersal End User License Agreement (“EULA”). Immersal has developed and operates Cloud Services to support the use of Applications for the purposes of creating Results.
(2) Applications are licensed to Licensees subject to the Agreement entered into by License or and each Licensee, which Agreement shall be subject to the terms of the EULA.
(3) These Terms specify the additional terms applying to the Cloud Service made available by Immersal Ltd. (“Immersal”) to Licensees and Users under the Agreement and these Terms shall be deemed an integral part of the Agreement.
2 USAGE RIGHTS AND RESTRICTIONS
2.1 Grant of Rights
Immersal grants to Licensee and Users a non-exclusive, non-transferable and world-wide right to use Cloud Service for the Term.
2.2 Acceptable Use Policy
With respect to the Cloud Service, Licensee shall not:
(i) disassemble, decompile, reverse-engineer, copy, translate or make derivative works;
(ii) transmit any content or data that is unlawful or infringes any intellectual property rights; or
(iii) circumvent or endanger its operation or security.
2.3 Suspension of Cloud Service
(1) Immersal may suspend or limit use of Cloud Service if continued use may result in material harm to Cloud Service or its users. Immersal shall promptly notify Licensee of the suspension or limitation.
(2) Immersal shall limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
2.4 Third Party Cloud Services
Cloud Service may include integrations with cloud services made available by third parties (other than Immersal or its Affiliates) that are accessed through Cloud Service and subject to terms and conditions with those third parties. Such third-party cloud services are not part of Cloud Service and the Agreement does not apply to them.
2.5 Applications Access to Cloud Service
Users may access Cloud Service through Applications or browser. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not only by the terms of the Agreement.
3 IMMERSAL RESPONSIBILITIES
3.1 Cloud Service Operation
(1) Immersal shall operate Cloud Service on a 24/7 continuing basis, however, only subject to such availability Cloud Service levels as separately agreed from time to time with Licensees.
(2) Immersal shall perform any maintenance and updates of Cloud Service at its discretion from time to time to be able to provide the continuing operation and the access thereto to its Licensees. Immersal shall pursue to inform Licensee in advance of any scheduled or otherwise planned interruption to Cloud Service.
3.2 Good Industry Practices
(1) Immersal warrants that it shall provide the Cloud Service:
(i) in substantial conformance with the Documentation; and
(ii) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of Cloud Services substantially similar to the nature and complexity of the Cloud Service.
(2) Licensee’s sole and exclusive remedies and Immersal’ entire liability for breach of the above warranty shall be the re-performance of the deficient Cloud Service, and if Immersal fails to re-perform, Licensee may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of Immersal’ failure to re-perform.
3.3 Availability and Support
Immersal shall provide access to and support for the Cloud Service as referenced in the Agreement.
Immersal uses reasonable security technologies in providing the Cloud Service. As a data processor, Immersal shall implement technical and organizational measures referenced in the Agreement to secure personal data processed in the Cloud Service in accordance with applicable data protection law.
3.5 Modifications and Updates
The Cloud Service and Policies relating thereto may be modified and updated by Immersal from time to time. Immersal shall inform Licensee of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information shall be delivered by email if the modification is not only an enhancement. Modifications may include optional new features for the Cloud Service, which Licensee may use subject to the then current Documentation.
Licensee shall be responsible for the validity and non-infringement of all Data entered by Licensee or its Users into Cloud Service. Licensee grants to Immersal a non-exclusive right to process Data solely to provide and support Cloud Service and produce Results.
4.2 Personal Data
(1) Licensee shall collect and maintain all personal data contained in Data in compliance with applicable data privacy and protection laws.
(2) All Data shall be anonymous and should not include any personal data. Immersal shall not collect or preserve any and shall destroy photos and any and all photos shall be destroyed after the creation of Results.
Licensee shall maintain reasonable security standards for its Users’ use of the Cloud Service. Licensee shall not conduct or authorize penetration tests of the Cloud Service without advance approval from Immersal.
4.4 Access to Data
Licensee can access its Data in accordance with Documentation. At the end of the Agreement, Immersal may delete Data remaining within Cloud Service unless applicable law requires retention.
(1) Immersal shall have a right to create Analyses from time to time subject to the express limitations specified below. Analyses will anonymize and aggregate information.
(2) Unless otherwise agreed, personal data contained in Data or Results shall only be used to provide Cloud Service.
(3) Immersal may use Analyses for the following purposes:
(i) product improvement and development of new products and Cloud Services,
(ii) improving resource allocation and support,
(iii) training and developing machine learning algorithms,
(iv) improving product performance,
(v) verification of security and data integrity
(vi) identification of industry trends and developments, creation of indices and anonymous benchmarking.
Immersal End User License Agreement
Immersal Ltd (“Immersal”) has developed proprietary Technology for persistent multi-user augmented reality experiences and is in the business of licensing rights for Applications based on Technology. Applications make use of Cloud Services, the cloud-based software system maintained by Immersal for the purposes of receiving, processing and storing Data submitted into Cloud Services by Users to create Results.
This Immersal End User License Agreement (“EULA”) shall define the terms and conditions of applicable to the license and use of Applications, whether by Immersal or any other licensed developer or distributor of Applications (each a “Licensor”), all as defined in this EULA, except as otherwise expressly agreed in the Agreement between Licensor and Licensee.
As used in the Agreement and 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 pursuant to a valid License for the use thereof.
“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.
“Agreement” means the license agreement entered into between Licensor and Licensee for Applications, whether by the way of written agreement or otherwise created by way of Licensee taking an Application into use for the purposes of either personal or business use, subject to a Fee or for demonstration purposes without any Fee.
“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, whether developed by Immersal itself or any third-party developer under a valid developer license, whether a mobile app or a computer program. The use of Application shall imply the use of Technology and Cloud Services.
“Cloud Services” the cloud services made available by Immersal for the use of Licensees and the respective Users under the License, subject to the Cloud Services Terms.
“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 Immersal within Cloud Services as part of License.
“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 Agreement
“Fees” means any license fees and other charges payable by Licensee to Licensor pursuant to the 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 use Application.
“Licensee” means the licensee of Application and a party to the Agreement.
“Release” means an updated Application.
“Policies” means the operational guidelines and policies applied by Immersal to provide and support the Cloud Service as valid from time to time.
“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 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 Agreement.
“User” means the individual authorized to use the Application under a License.
Licensor grants License as specified in the Agreement subject to the terms of this EULA. The 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.
3 USE OF APPLICATION
(1) Licensee shall be fully responsible for the use of Application in compliance with the terms of the Agreement whether by itself or Users authorized by Licensee under the terms of the 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. Licensee shall be responsible for all use of Application with usernames and passwords granted to Users pursuant to the license to Licensee.
(3) Licensee 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 Licensee and Licensee shall be fully responsible for the compliance of Users with the terms of the Agreement. Licensee shall be responsible for any use of Application by Users that have received their access right pursuant to the Agreement.
(1) User shall not, except as expressly authorized under the License:
(i) expose any underlying programming interfaces of Application;
(ii) disclose the source code of any software to third parties except as expressly allowed in the applicable license terms; or
(iii) remove or alter any copyright or other proprietary notice from Application or Documentation;
(iv) disassemble, decompile or otherwise reverse engineer Application or otherwise attempt to learn the source code, or algorithms underlying Application, to the maximum extent allowed under applicable law;
(v) rent, lease or otherwise provide temporary access to Application;
(vi) copy, alter or modify Application or,
(vii) allow others to do any of the foregoing.
(2) User shall promptly notify Licensor 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, Licensor shall provide Licensee and Users limited general technical support through its developer forum or in such other form as decided by Licensor from time to time. Immersal shall have no responsibility for providing additional support directly to the Users of Applications created by third-party developers.
Immersal may from time to time at its sole discretion provided new Releases to the Application. Immersal 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 Immersal at the time of the Release.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Application and Cloud Services
(1) The Agreement shall not be deemed to result in the sale, transfer or any other conveyance of any Intellectual Property Rights
(2) Licensor and its third-party licensors shall always retain all 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) Any use of Application in deviation to the Agreement is expressly forbidden and may cause termination of the Agreement upon Licensor’s notice to Licensee according to Section 12(1).
(4) 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 Immersal and Licensee 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
Licensee covenants, on behalf of itself and its successors and assigns, as well as on behalf of any Users, not to assert against Licensor, its Affiliates or licensors, any rights, or any claims of any rights, in the Application, Cloud Service, or Documentation.
7 FEES AND PAYMENT
(1) Licensor may amend Fees by informing the new Fees to Licensee at the latest two (2) months before the beginning of the Subscription Period when they enter into force. If Licensee does not accept the new Fees, Licensee may terminate the Agreement before the new Fees enter into force.
(2) Licensee shall pay Fees against an invoice in advance per the Subscription Period. Upon entering into the Agreement, Licensor shall invoice Fees for the period from the beginning until the end of the Subscription Period.
(3) Interest on overdue payments shall accrue in accordance with the Finnish Interest Act (633/1982, korkolaki in Finnish) in force from time to time.
(4) Fees are exclusive of any and all taxes, fees and duties, including, without limitation, withholding tax, value added tax and sales tax, and Licensee is responsible for 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 Agreement.
(5) After prior written notice, Immersal may suspend Licensee’s use of Cloud Service until payment is made. Licensee cannot withhold, reduce or set-off fees owed during the Term. All Agreements are non-cancellable and fees non-refundable.
(1) Immersal may use Licensee's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Immersal' marketing efforts (including reference calls and stories, press testimonials or site visits).
(2) Immersal may share information on Licensee with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Licensee employee contact information with Immersal.
9 LIMITED WARRANTY AND DISCLAIMER
(1) Immersal 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”. Licensee’s exclusive remedy and the entire liability of Licensor under this limited warranty will be, at Licensor’s sole discretion, sending a repaired or replacement version of Application to Licensee to be installed by Licensee at Licensee’s cost, or refund of Fees paid for License for the then current Subscription Period.
(2) In no event does Licensor warrant that Application is error free or that Licensee will be able to operate Application without problems or interruptions.
(3) This warranty does not apply if Application
(i) has been altered or modified (by any other than Immersal or Licensor);
(ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Licensor;
(iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or
(iv) is provided to Licensee 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. Licensor shall not be liable to Licensee or user for any damage relating to any Applications created by any third-party developer.
(1) Licensor agrees to indemnify, defend and hold Licensee and Users, officers, directors and employees of Licensee 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 against Licensee to the extent it is based on that Application (excluding third-party software) infringes any copyright, trade secret, patent, or trademark right of a third-party provided that Licensee
(i) promptly notifies Licensor in writing of such presented claims;
(ii) permits Licensor to defend or settle the claims on behalf of Licensee; and
(iii) gives to Licensor, upon request and free of charge, information and assistance available and the necessary authorization for such defense.
(2) If in Licensor’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 Licensee;
(ii) send to Licensee replacement that complies with the Agreement; or
(iii) send to Licensee modified Application where the infringement has been eliminated in such a manner that the modified Application complies with the Agreement.
(3) Modified or replacement Application will be installed by Licensee at Licensee’s cost. If none of the above-mentioned alternatives is available to Licensor on reasonable terms, Licensee shall, at the request of Licensor, stop using Application and return it, and Licensor shall refund the Fee paid by Licensee for the then current Subscription Period, if any.
(4) Licensor 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 Licensor;
(ii) any content, information, or data provided by Licensee or third parties;
(iii) alteration of Application by Licensee or any third-party not authorized by Licensor, or
(iv) that could have been avoided by the use of a Release and Release is offered for use to Licensee.
(5) Licensor’s liability for infringement of Intellectual Property Rights shall be limited to this Section 9.
11 LIMITATION OF LIABILITY
(1) To the extent permitted under applicable law, and except for breaches of section 2 (License) or breaches of Licensor’s Intellectual Property Rights, under no circumstances will 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 Agreement.
(2) To the extent permitted under applicable law, and except for breaches of sections 2 (grant of license) or breaches of immersal's Intellectual Property Rights by Licensee, in no event shall either party's liability to the other party for any claim arising out of the Agreement exceed the amount of Fees paid by Licensee to Licensor during the twelve (12) months prior to the occurrence giving rise to such claim.
(3) The obligations in the Agreement, including but not limited to any and all indemnities and warranties set forth herein, are from Licensor only and are not offered on behalf of any other party.
(1) Either party may terminate the Agreement to end at the end of the then current Subscription Period. In addition, either party may terminate the Agreement with immediate effect by notice in writing in the event
(i) the other party materially breaches any of its obligations under the 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) Licensee is not entitled to any refund of Fees already paid or due. Upon termination of the Agreement, Licensee shall on the date of termination
(i) cease to use Application or access Cloud Services;
(ii) upon instructions and option of Immersal either return or destroy all tangible copies of Application and Documentation together with all reproduction and modifications thereof; and
(iii) give Licensee a written guarantee that Licensee has complied with all of its obligations under this Section.
(3) Section 1 (Definitions), Section 8 (Limited Warranty and Disclaimer), Section 9 (Indemnification and Limitation of Liability), Section 11 (Term and Termination) and Section 12 (Miscellaneous) shall survive any termination of the Agreement.
Any notice under the Agreement will be in writing and will be delivered by e-mail to the e-mail address indicated in the Agreement. Notices will be deemed effective (the next day after the sending of the e-mail.
The Agreement or License granted thereunder may not be assigned or sublicensed by Licensee in whole or in part without the prior written consent of Licensor, such consent not to be unreasonably withheld or delayed. However, either party may assign the 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 Agreement.
This EULA, Cloud Services Terms or any other standard terms referred to herein may be modified from time to time by Immersal by informing Licensee of the same in writing. Except for amendments to Fees as defined in Section 6(1), the changed terms shall become binding upon Licensee at the commencement of the next Subscription Period unless Licensee informs Licensor in writing within thirty (30) days from Licensor’s notice that it does not accept such changes, in which case the Agreement shall terminate upon the end of then current Subscription Period.
13.4 Governing Law
The Agreement is 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 Agreement and shall be strictly excluded in all proceedings.
13.5 Dispute Resolution
All disputes arising under or in connection with the 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.