SOFTWARE LICENSE AGREEMENT
TERMS OF SERVICE FOR GRAPHXR ("AGREEMENT")
1. OWNERSHIP
The GraphXR software and any accompanying documentation and any updates, new versions, bug fixes, error corrections, or other modifications provided by Kineviz (collectively "Software") are proprietary to Kineviz. Licensee acknowledges and agrees that: (a) the Software is protected under copyright and other laws and international treaty provisions; (b) Kineviz and its licensors retain all copyrights and other intellectual property rights in the Software; (c) there are no implied licenses under this License, and any rights not expressly granted to Licensee hereunder are reserved by Kineviz; and (d) Licensee acquires no ownership or other interest (other than license rights explicitly stated in this Agreement) in or to the Software. Licensee agrees that Licensee will not, at any time, contest anywhere in the world Kineviz' ownership of the Software, nor will Licensee challenge the validity of Kineviz' rights in the Software. Licensee has no rights hereunder to use any trademark or service mark belonging to Kineviz.
2. GRANT OF LICENSE
2.1. Licensed Use
The Software is made available as described on the GraphXR product page and used by Licensee to operate the Software. Subject to Licensee's performance under this Agreement, Kineviz grants to Licensee a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Software for Licensee's internal purposes only, solely in object code form on a compatible (in accordance with the hardware, operating system, and other instructions provided by Kineviz) device owned or controlled by Licensee.
2.2. License Restrictions
Reproduction of the Software and/or distribution of the Software to any third party is not licensed hereunder and is strictly prohibited.
2.3. Remote Access
Licensee is responsible for obtaining all necessary devices and equipment and for all costs relating to Licensee's access to and the use of Software, including and not limited to any hosting or infrastructure costs. Licensee will at all times be responsible for maintaining the security of, and any access to or use of, Licensee's user name and password. Licensee accepts and acknowledges that Licensee will be responsible for all activities that occur under Licensee's user name, and Licensee will promptly notify Kineviz of any loss, theft or unauthorized use of Licensee's password of which Licensee become aware.
2.4. License Keys
In order to operate or evaluate the Software, Licensee may be provided with a license key by Kineviz. The license key encodes restrictions and conditions on Licensee's use of the Software as may be determined by separate sales, evaluation or other usage agreements with Kineviz. Whether or not such additional agreement exists, Licensee agrees to be bound by the additional operating restrictions and conditions encoded in Licensee's license key. The license key restrictions may include a limitation on the time period for which Licensee is licensed to operate the Software or may specify the period during which the Software will operate normally. Licensee may not use the Software in any manner that bypasses the operating restrictions and conditions encoded in the license key. Licensee may not share, lease, rent or loan the license key to any third party. Licensee may not reproduce the license key except for backup purposes. Licensee may not use the same individual license key on more than one running server.
2.5. RESTRICTIONS
Except as otherwise expressly stated in this License or by additional agreement, Licensee may not:
- use the Software in any manner not authorized by this License;
- reproduce, modify, adapt, alter, translate, or create derivative works of the Software or merge the Software with other software;
- make the Software available in any manner to any third party;
- sublicense, distribute or otherwise transfer the Software or any component thereof to any third party;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software;
- remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Kineviz or its suppliers on the Software;
- allow third parties to access or use the Software including but not limited to a time-sharing arrangement or operate the Software as part of a service bureau or, otherwise for the use or benefit of third parties;
- use the Software to provide third party training;
- disclose results of any Software benchmark tests without Kineviz' prior written consent; or
- use any Kineviz name, trademark of logo.
3. FEEDBACK AND SUPPORT
3.1. Feedback
Kineviz welcomes Licensee's voluntary comments, suggestions and other communications about the Software ("Feedback"). Feedback includes accounting of bugs, timing, issues, workarounds, and bug fixes, as well as any suggestions for features or enhancements. Kineviz will own all such Feedback and be able to use the Feedback in any manner, and Licensee hereby assign to Kineviz all rights to Feedback Licensee provide to Kineviz.
3.2. Support
Kineviz will make reasonable efforts to provide Licensee with the support services expressly described in the support services description ("Support Services"), as modified from time to time, subject to the conditions stated in such support service description. Except for the Support Services, this Agreement does not require Kineviz to provide Licensee with any installation, training, technical assistance, consulting services, or other services of any kind. At its sole discretion, Kineviz may provide periodic updates to the Software, which may include bug fixes, new features and/or enhancements. Licensee may report Software bugs and errors by email to graphxr@kineviz.com.
4. PRICE AND PAYMENT
4.1. Fees
Licensee will pay the fees plus any applicable Taxes (as described in Section 4.2) for access and use of the Software in accordance with Kineviz terms and policies, including any fees associated with third party hosting providers. The fees Licensee pay to access and use the Software are nonrefundable.
4.2. Taxes
Licensee will be responsible for and pay all federal, state or local sales, VAT, GST, use, property, excise, service, or similar taxes ("Taxes") now or hereafter levied.
5. TERM AND TERMINATION
5.1. Term
This Agreement and Licensee's access to the Software will become effective as of the date of the applicable order and shall continue in effect thereafter in accordance with the applicable order, unless terminated earlier under this Section 5. Licensee will cease access to and use of the Software at the end of the time period for which Licensee is paying to access the Software, or per the terms of the Onboarding Agreement (Appendix A).
5.2. Suspension and Termination
Kineviz may suspend or terminate Licensee's right to use the Software (in whole or in part) at any time for any reason or for no reason.
5.3. Effect of Termination
Upon any termination or expiration of this Agreement, Licensee shall immediately cease all use of the Software.
6. LICENSEE DATA
In connection with Licensee's use of the Software, Licensee or some or all of Licensee's end users may connect to, view, interact with, or output from the Software, content, information, and data (collectively, "Data".) Licensee is entirely responsible for the content, accuracy and completeness of such Data, and any loss, liabilities or damages to or resulting from the Data, regardless of whether the Data consists of, including but not limited to, text, graphics, audio, video, or computer software. By accessing Data using the Software, Licensee represents and warrant that: (i) Licensee owns or has the necessary licenses to access the Data in the Software, and the provision of the Data to, and use of the Data by, the Software as contemplated herein will not, to Licensee's knowledge, infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; (ii) the Data does not contain any viruses, worms, malware, Trojan horses or other harmful or destructive code; (iii) the Data does not include any unlawful content, and (iv) the Data does not contain any confidential, mission critical, or personally identifying information.
7. DISCLAIMER OF WARRANTY
THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. KINEVIZ AND ITS LICENSORS (FOR THE PURPOSES OF SECTION 8 AND 9, KINEVIZ AND ITS LICENSORS WILL BE COLLECTIVELY REFERRED TO AS "KINEVIZ") EXPRESSLY DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER SUCH WARRANTIES ARE EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KINEVIZ MAKES NO WARRANTY OR REPRESENTATION THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, NOR WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE. LICENSEE FURTHER ACKNOWLEDGES THAT THE SOFTWARE MAY HAVE LIMITED FUNCTIONALITY, CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE COMPUTER SOFTWARE, HARDWARE, AND SYSTEM FAILURES OR LOSS OF DATA. LICENSEE EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT LICENSEE'S SOLE RISK.
8. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL KINEVIZ BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF KINEVIZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KINEVIZ' TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID TO KINEVIZ BY LICENSEE FOR THE SPECIFIC LICENSE FOR THE APPLICABLE PERIOD TO WHICH THE LIABILITY IS RELATED.
8.1 HIGH RISK ACTIVITIES
THE SOFTWARE SYSTEMS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, MASS TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE SYSTEMS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCORDINGLY, KINEVIZ DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT KINEVIZ SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SOFTWARE SYSTEMS IN SUCH APPLICATIONS.
8.2 EXTENDED REALITY
LICENSEE ACKNOWLEDGES THAT VIRTUAL REALITY AND AUGMENTED REALITY (COLLECTIVELY, "EXTENDED REALITY") COMPRISE NEW AND EVOLVING TECHNOLOGY. PHYSICAL AND PSYCHOLOGICAL EFFECTS OF LONG TERM EXPOSURE TO EXTENDED REALITY ARE UNKNOWN AND KINEVIZ DISCLAIMS ANY EXPRESS OR IMPLIED LIABILITY FOR DAMAGES, LOSSES, OR INJURIES RESULTING FROM USE OF EXTENDED REALITY HARDWARE. LICENSEE ACCEPTS THAT SOME USERS MAY EXPERIENCE EFFECTS INCLUDING BUT NOT LIMITED TO NAUSEA, DISORIENTATION, VERTIGO, SEIZURES, MOTION SICKNESS, GENERAL DISCOMFORT, HEADACHES, ANXIETY OR OTHER PHYSICAL, MENTAL OR HEALTH-RELATED INJURIES DURING OR RELATED TO EXTENDED REALITY USE.
8.3 Export Restrictions
Licensee acknowledge and agrees that Licensee shall not export, or re-export directly or indirectly, the Software, to any country or person in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States of America (the "United States"). Specifically, Licensee shall not download or otherwise export or re-export the Software to (i) Cuba, Iran, Libya, Sudan, North Korea, or Syria or any other country where such use is prohibited under United States export regulations, or (ii) anyone who is a national of any of such country or whose name appears on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Denied Persons List. Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, organized under the laws of, or a national or resident of any such country, or on any such list.
9. OPEN SOURCE
Kineviz may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third-party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any information. A list of open source software programs delivered with the Software can be found at https://www.kineviz.com/opensource
10. OTHER SOFTWARE
To use the Software, Licensee may also need to obtain, install and maintain Kineviz-supported versions of certain software products, database software products and certain software/hardware peripherals. Licensee acknowledges that it is responsible for purchasing, administrating, and maintain Kineviz-supported software products for the most effective operation of the Software. By this notice, Kineviz is advising Licensee that Licensee should request information about such necessary software products, database software products and software/hardware peripherals.
11. ASSIGNMENT
Unless otherwise expressly provided by additional agreement with Kineviz, Licensee may not assign any of Licensee's rights or delegate any of Licensee's obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation). Kineviz may assign some or all of Kineviz' rights and obligations under this License without notice to Licensee and this License shall be binding on such assignees, heirs, and/or successors. Any attempted assignment in violation of this Section 11 will be void.
12. GOVERNING LAW AND JURISDICTION
All disputes, claims or controversies arising out of this License or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of California without regard to its rules of conflict of laws. Licensee hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of California and of the United States of America located in the State of California (the "California Courts") for any litigation arising out of or relating to this License, and Licensee waives any objection to the venue of any such litigation in the California Courts and agrees not to plead or claim in any California Court that such litigation has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the California Courts.
13. NOTICES
Kineviz may provide notice under this Agreement by: (a) posting a notice on a Kineviz website associated with GraphXR Software; (b) sending a message to the email address associated with Licensee's account; or (c) sending notice to Licensee's corporate headquarters to the attention of "General Counsel". It is Licensee's responsibility to keep Licensee's email address current. Notices to Kineviz must be sent to: 404 Bryant St, San Francisco CA, 94107, USA, Attention: Contracts Administrator.
14. NOTICE OF CLAIMS
Licensee agrees to provide Kineviz with written notice of any claim that Licensee's use of the Software infringes or misappropriates any patent, copyright, or other intellectual property rights of a third party within ten (10) days of Licensee's first knowledge thereof. Kineviz is under no obligation hereunder to indemnify Licensee or hold Licensee harmless with respect to any actions, proceedings or claims.
15. GOVERNMENT RIGHTS
If Licensee is an agency or instrumentality of the United States Government, the Software is "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software are governed by the terms of this License.
16. GENERAL
If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Unless there exists, in writing, a separate sales, evaluation or other usage agreements intended for use in conjunction with this License, this License is the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous agreements regarding its subject matter. Kineviz may change these terms at any time. Licensee's continued use of the Software will be subject to any such revised terms. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. Licensee recognizes that the warranty disclaimers and the liability and remedy limitations in this License are material elements of this Agreement and they should be effective even when such warranty disclaimers and liability and remedy limitations would cause this License to fail of its essential purpose.
17. MISCELLANEOUS
Kineviz shall be permitted to reference this Agreement in one or more press releases; otherwise, no public statements concerning the existence or terms of this Agreement will be made or released to any medium except with the prior approval of both parties or as required by law. Kineviz and Licensee are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. This Agreement shall be construed as if drafted by both parties and shall not be strictly construed against either party.