END USER LICENSE AGREEMENT
K-Motion Interactive, Inc.
IMPORTANT: READ THIS CAREFULLY BEFORE USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT.
THIS END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “END USER”), AS THE END USER OF, AND K-MOTION INTERACTIVE, INC. (“K-MOTION“), AS THE PROVIDER OF THE K-MOTION WEARABLE MOTION CAPTURE TECHNOLOGY, WHICH INCLUDES THE OBJECT CODE VERSION OF THE SOFTWARE COMPONENTS EMBEDDED THEREIN, AND MAY INCLUDE ASSOCIATED DIGITAL CONTENT AND DOCUMENTATION (COLLECTIVELY, THE “PRODUCTS”). THE PRODUCTS ALSO INCLUDE ANY UPDATES OR UPGRADES TO OR NEW VERSIONS OF THE PRODUCTS, IF AND WHEN MADE AVAILABLE TO YOU BY K-MOTION.
IF YOU AGREE TO THE TERMS OF THIS EULA, SELECT THE “I ACCEPT” OR “YES” BUTTON WHEN PROMPTED. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT ACCESS OR OTHERWISE USE THE PRODUCT AND CLICK THE “I DO NOT ACCEPT” OR “NO” BUTTON.
K-MOTION RESERVES THE RIGHT TO MODIFY THIS EULA WITH OR WITHOUT PRIOR NOTICE TO END USER. THE MODIFIED TERMS WILL BE EFFECTIVE WHEN K-MOTION: (I) SENDS AN E-MAIL TO END USER’S E-MAIL ADDRESS; OR (II) POSTS A NOTICE ON THE HOME PAGE OR LAUNCH SCREEN OF THE END USER’S END USER INTERFACE. BY ACCESSING, OR OTHERWISE USING THE PRODUCT AFTER THIS EULA HAVE BEEN UPDATED, YOU AGREE TO BE BOUND BY THE UPDATED TERMS.
1. Governing Terms. As an End User of the Products, End User is also a “User” of the K-Motion Platform, and therefore subject to the K-Motion Terms of Use and the K-Motion Privacy Policy, which are expressly incorporated herein by reference. In the event of a conflict between the Terms of Use and this EULA, provisions of the terms of this EULA shall control. Any capitalized terms not defined herein shall have the meanings provided in the Terms of Use.
2. Set-Up and Operating Requirements. In order to use the Products, you must:
• have internet access (e.g., WiFi or 3G /4G with a data plan);
• download the App on your computer, smartphone or tablet;
• register for a K-Motion account (as set forth in more detail below in the Terms of Use).
If any of the above requirements are not met, you will not be able to use some or all of the Products.
3. Acknowledgements
• YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
• K-MOTION DOES NOT AND CANNOT GUARANTEE THAT THE PRODUCTS WILL BE CONTINUOUS OR ERROR-FREE.
• IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PRODUCTS.
• YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PRODUCT.
4. Authorization. As of the date you agree to the terms of this EULA (the “Effective Date”), K-Motion will provide access to the Products based on the login credentials you selected if applicable. Subject to this EULA, K-Motion shall make the Products available to be used by End User solely for End User’s internal purposes; provided that End User may upload, submit transmit and share data and information to or through the Products with other K-Motion Users. Subject to the terms and conditions of this EULA, K-Motion hereby grants to you, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Products and interact with the features and functionality available via the Products for purposes of collecting, storing, and transmitting End User Data. This right is granted for the sole purpose of enabling you to use and enjoy the benefit of the Product as provided by K-Motion, in the manner permitted by this EULA. This EULA shall also apply to updates, and upgrades subsequently provided by K-Motion for the Product.
5. Restrictions & Requirements.
5.1. Prohibited Uses. End User is responsible for all activities conducted under End User’s logins. End User must not use the Product to provide a service bureau or outsourced service, and may not rent, resell, sublicense, or permit the concurrent use of End User’s login credentials, or time-sharing of the Product. End User shall not and shall not permit any third party to (i) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Product or any part thereof or otherwise attempt to discover any source code or modify the Product in any manner or form; (ii) access or use End User Data of which they were not the intended recipient, beyond the rights granted, or after access rights have been revoked; (iii) access or use the Product to circumvent or exceed Product account limitations or requirements; (iv) use the Product for the purpose of building a similar or competitive product or service; (v) obtain unauthorized access to the Product; (vi) use the Product in a manner that is in violation of any third party rights of privacy or intellectual property rights; (vii) issue or participate in any press release or other public statement related to this EULA or the Product without prior written consent of K-Motion; (viii) publish, post, upload or otherwise transmit End User Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (ix) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Product. Except as permitted by this EULA, no part of the Product may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. End User agrees not to access the Product by any means other than through the interfaces that are provided by K-Motion. End User shall not do any “mirroring” or “framing” of any part of the Product, or create Internet links to the Product which include log-in information, End User IDs, passwords, and/or secure cookies.
5.2. Obligations. End User shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this EULA, including without limitation those related to privacy, electronic communications and anti-spam legislation. End User will not import into or send any End User Data from the Product that is unlawful, harassing, libelous, defamatory or threatening. End User shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Product and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) End User represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) End User shall not permit others to access or use the Product in violation of any U.S. export embargo, prohibition or restriction, and (iii) End User shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which End User is located. End User shall ensure that all access and use of the Product by End User is in accordance with the terms and conditions of this EULA. You agree to cooperate with and assist K-Motion and/or its representatives in good faith, in any investigations of breaches of this EULA, including by providing us with such information as we may reasonably request.
5.3. Age Restrictions. Persons under the age of thirteen (13) may not use the Products without consent and approval from their parent or legal guardian. By accessing the Products, including by registering a K-Motion account, you represent and warrant that you are thirteen (13) years of age or older. By permitting a person under the age of thirteen (13) to access the Products, including by registering a K-Motion account for such person, you represent and agree that you are the parent or guardian of such person or are an educational organization that has both (i) entered into a direct contractual relationship with K-Motion and (ii) secured the consent of such person’s parent or legal guardian. IF YOU REGISTER A K-MOTION ACCOUNT FOR ANY PERSON WHO IS UNDER THE AGE OF THIRTEEN (13), YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA ON BEHALF OF SUCH PERSON, INCLUDING WITHOUT LIMITATION, BEING LIABLE FOR ALL USE OF THE PRODUCTS BY THE PERSON. You acknowledge that K-Motion may choose, but is not obligated, to make any inquiries, either directly or through third parties, that K-Motion deems necessary to validate your registration information, including without limitation engaging third parties to provide verification services. K-Motion reserves all rights to initiate legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. Notwithstanding the foregoing, you acknowledge that K-Motion cannot guarantee the accuracy of any information submitted by any End User, and K-Motion is not obligated to verify the identity of any End User, including any End User’s claim to be a parent or legal guardian, or an educational organization that has both (i) entered into a direct contractual relationship with K-Motion and (ii) secured the consent of such person’s parent or legal guardian.
5.4. Consequences of Non-Compliance. Your failure to comply with the terms of this EULA may result in the suspension or termination of your account and/or access to the Product, and may subject you to civil and criminal penalties.
6. Suspension; Termination.
6.1. Term. This Agreement shall commence as of the Effective Date and shall remain in effect until terminated by End User or K-Motion.
6.2. Termination; Suspension. K-Motion may suspend or terminate End User’s access to the Products: (i) immediately and without notice in the event End User breaches this EULA, or for any other cause, in K-Motion’s sole discretion; (ii) immediately with notice upon request of any User that ones the Products linked to End User’s account; and (iii) upon thirty (30) days’ written notice for convenience. You may cancel your use of the Products at any time. Upon termination of the Agreement, End User shall make no further attempts to use the Product.
7. K-Motion Intellectual Property Rights. All rights, title and interest in and to the Product (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Product provided or developed by K-Motion) are owned exclusively by K-Motion or its licensors. Except as provided in this EULA, the rights granted to End User do not convey any rights in the Product, express or implied, or ownership in the Product or any intellectual property rights thereto. End User grants K-Motion a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Product (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by End User related to the operation or functionality of the Product. Any rights in the Product or K-Motion’s intellectual property not expressly granted herein by K-Motion are reserved by K-Motion.
8. Data Transmission; Privacy
8.1. Transmission. End User understands that the technical processing and transmission of End User Data is fundamentally necessary to use of the Product. End User is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Product. End User expressly consents to K-Motion’s interception and storage of End User Data as needed to provide the Product, and End User acknowledges and understands that the End User Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by K-Motion. End User further acknowledges and understands that End User Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting K-Motion’s applicable obligations under Section 6.2, K-Motion is not responsible for any End User Data that is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by K-Motion, including, but not limited to, the Internet and End User’s local network.
8.2. Privacy. Our collection and use of information about End Users is governed by our Privacy Policy. By accessing and using the Product, you consent to the collection and use of this information, including the transfer of this information outside the United States and/or other countries, for storage, processing and use by K-Motion. As part of providing you the Product, we may need to provide you with certain communications, such as service announcements and administrative messages. You may not be able to opt-out from receiving these communications.
9. Warranties
9.1. Disclaimer of Warranties. THE PRODUCTS ARE PROVIDED TO END USER ON AN “AS IS” AND “AS AVAILABLE” BASIS. K-MOTION DOES NOT REPRESENT THAT END USER’S USE OF THE PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR THAT ALL ERRORS IN THE PRODUCTS AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE PRODUCTS AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND END USER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THERE ARE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. K-MOTION EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT END USER’S USE OF THE PRODUCT WILL SATISFY END USER’S PURPOSE, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. END USER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCTS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR END USER’S PURPOSES.
10. Limitations of Liability
10.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL K-MOTION HAVE ANY LIABILITY TO END USER ARISING OUT OF OR IN CONNECTION WITH THIS EULA FOR ANY LOST DATA, LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT K-MOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 10.2 BELOW.
10.2. Limitations on Liability. THE MAXIMUM AGGREGATE LIABILITY OF K-MOTION ARISING OUT OF OR IN CONNECTION WITH THIS EULA, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR OTHERWISE, SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100 USD).
10.3. Exceptions. Notwithstanding anything to the contrary, K-Motion shall not be liable to End User to the extent such liability would not have occurred but for End User’s failure to comply with this EULA, the Terms of Use, or any applicable law.
10.4. Acknowledgement. End User acknowledges that K-Motion would not enter into this EULA without these limitations on K-Motion’s liability.
11. Indemnification. To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold K-Motion its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Product, including any and all features and functionalities thereof, (ii) your breach of this EULA, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your gross negligence or willful misconduct.
12. Injunctive Relief. End User acknowledges that K-Motion will be irreparably harmed if End User’s obligations under this EULA are not specifically enforced and that K-Motion would not have an adequate remedy at law in the event of an actual or threatened violation by End User of its obligations despite the availability of monetary damages. Therefore, End User agrees that K-Motion shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations or breaches by End User without the necessity of K-Motion showing actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting a bond even if otherwise normally required.
13. Governing Law and Jurisdiction. This EULA are governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco, California, in any dispute arising out of or relating to this EULA.
14. General Provisions.
14.1. Independent Contractors. The relationship between the parties is that of independent contractors, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.
14.2. Assignment. End User may not assign or transfer, by operation of law or otherwise, any of its rights under this EULA (including without limitation its rights with respect to the Product) to any third party without K-Motion’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. This EULA shall inure to benefit and bind the parties hereto, and their successors and assigns.
14.3. Third-Party Beneficiaries. There are no third party beneficiaries to this EULA.
14.4. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect.
14.5. Waiver. A waiver of any breach under this EULA should not constitute a waiver of any other breach or future breach.
14.6. Force Majeure. Neither party shall be liable for loss, delay, nonperformance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving K-Motion employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
14.7. Integration. This EULA incorporates by reference the K-Motion Terms of Use and together will constitute the entire understanding between End User and K-Motion, and are intended to be the final and entire expression of their agreement. Except as expressly stated otherwise herein, there are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by End User in connection to this EULA be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this EULA, regardless of any failure of K-Motion to object to such terms, provisions, or conditions. This EULA shall not be modified, or amended, except as expressly set forth herein.
14.8. Headings. The section headings used in this EULA are included for reference purposes only and shall not affect the meaning or interpretation of this EULA in any way.
14.9. Survival. The provisions of the sections of this EULA that, by their nature, are intended to survive the expiration or termination of this EULA shall so survive.
