BY DOWNLOADING OUR TECHNOLOGY (AS DEFINED BELOW) AND/OR OUR SAMPLE APPLICATION (AS DEFINED BELOW), YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, ARE BECOMING A PARTY TO THIS 8TH WALL LICENSE AGREEMENT (“AGREEMENT”), AND ARE HEREBY REPRESENTING AND WARRANTING THAT LICENSEE IS AUTHORIZED TO BIND LICENSEE. LICENSEE’S DOWNLOAD, INSTALLATION OR CONTINUED USE OF THE TECHNOLOGY AND/OR THE SAMPLE APPLICATION SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE WILL HAVE NO RIGHT TO USE THE TECHNOLOGY OR THE SAMPLE APPLICATION. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO ALL OF THESE TERMS, TO THE EXCLUSION OF ALL OTHER TERMS.
Limited License to Use the Technology. Subject to full compliance with the terms of this Agreement, 8th Wall, Inc. (“we,” “us” “our” or “8th Wall”) hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use the plug-ins and software available by 8th Wall for download that enables augmented reality functionality in mobile phones (the “Technology”) for the sole purpose of allowing Licensee to build (strictly in accordance with our documentation) software applications (each an “App”) and that may communicate with 8th Wall’s proprietary augmented reality service (the “Service”), and for other purposes authorized by us in writing.
Limited License to Distribute the Technology in Licensee’s App. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to distribute the Technology in object code form only as part of an App, and only subject to an end-user license agreement which is at least as protective of our proprietary rights in the Technology as those contained in this agreement. Without limiting the foregoing, these terms and conditions must include terms for 8th Wall’s benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability, all of which must be at least as beneficial to 8th Wall as those contained herein.
Limited License to Use the Sample Application. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to download and use the sample application available by 8th Wall for download (the “Sample Application”) solely for the purpose of evaluating the Sample Application and the functionality of the Technology.
Restrictions. Licensee must not have a current or proposed program that is competitive with the Technology. If Licensee intends at any time to institute such a program, Licensee will promptly inform 8th Wall, will not use in that program (whether for advice, review or otherwise) any personnel who have had access to any part of the Technology, and will not use any part of the Technology or any related intellectual property in connection with that program. Except in connection with Licensee’s limited right to distribute the Technology in object code form in accordance with Section 2, Licensee will not disclose (or allow access to) the Technology (or any information derived from them) to any third party and will limit access to the Technology (and any derived information) to individuals who are developing the App and who are bound by this agreement (“Authorized Users”). In support of this obligation, Licensee will apply at least the same security that Licensee uses to protect Licensee’s own most confidential information. Licensee will not modify, reverse engineer or otherwise attempt to discover the source code of any aspect of the Technology or the Sample Application or authorize or encourage anyone else to do so (except to the extent such restriction is prohibited by applicable law).
Changes to the Technology. Licensee’s App must maintain 100% compatibility with the Technology and the Service (including changes provided to Licensee by 8th Wall which shall be implemented in the App promptly thereafter). Licensee understands and agrees that we may cease support of old versions or releases of the Technology at any time. We may also automatically update the version of the Technology that Licensee is using and/or which is installed on each Device of Licensee’s end users.
Fees. Certain versions or functionalities of the Technology may currently be free of charge, but we reserve the right to make certain additional features, updates or new versions/releases available only for payment.
Improvements. Licensee hereby grants 8th Wall a nonexclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all copyright or patent rights (“Intellectual Property Rights”) with respect to improvements or extensions that may be created by or for Licensee and are relevant to the Technology. For clarity, Licensee is not required to disclose any such Intellectual Property Rights to 8th Wall.
Licensee agrees and hereby consents to 8th Wall’s collection of the following data and information in connection with Licensee’s use of the Technology in an App which 8th Wall may use for its business purposes:
The version of the Technology;
The company name associated with the development tool Licensee uses to develop the App (the “Developer Tool”) (e.g. Unity);
The organization reverse domain associated with the App;
The operating system and version running on Licensee’s Developer Tool, (e.g. Mac OSX 12.5.1 / Windows 10.02);
The version of Licensee’s Developer Tool, (e.g. Unity 5.6.1f Pro);
The system language set on the operating system;
A truncated hash of a device unique identifier;
A truncated hash of the user ID associated with the developer tool; and
Other similar non-personalized data.
Licensee agrees and hereby consents to 8th Wall’s collection of the following data and information in connection use of the App on a Device, which 8th Wall may use for its business purposes:
A unique identifier from each Device;
The device model and manufacturer (e.g. Samsung S8 us-edition);
The bundle ID of the App;
Timing, performance, and error metrics of the App;
Each Device’s camera characteristics (e.g., the focal length of the camera);
The operating system and version of each Device (e.g. Android 6.0.);
The country in which each Device is located;
The configured language set on each Device; and
Other similar non-personalized data.
Indemnification. Licensee shall defend, indemnify, and hold harmless 8th Wall, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) Licensee’s, an Authorized End User’s or Licensee’s end users’ use or misuse of the Technology (ii) Licensee’s violation of this Agreement or breach of its representations or warranties, (iii) infringement by Licensee or any Authorized User of any intellectual property or other right of any person or entity, or (iv) a claim alleging that Licensee or the App infringes or violates the rights of, or has caused harm to, a third party. 8th Wall reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall assist and cooperate with 8th Wall in asserting any available defenses.
DISCLAIMER. 8TH WALL PROVIDES THE TECHNOLOGY AND THE SAMPLE APPLICATION “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL 8TH WALL OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, ACCURACY OF RESULTS, DEVICE FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE TECHNOLOGY OR THE SAMPLE APPLICATION. 8TH WALL’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO $100. THE FOREGOING WILL NOT APPLY TO DAMAGES FOR BODILY INJURY THAT, UNDER APPLICABLE LAW, CANNOT BE SO LIMITED. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSEE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE .
Term; Termination. This Agreement is effective as of the date Licensee begins using the Technology (whether in the development environment or in Apps) or the Sample Application and is effective until terminated in accordance with this Section 12. Licensee may terminate this Agreement at any time by removing or ceasing all use of the Technology or the Sample Application. We may terminate this Agreement and Licensee’s access to the Technology and/or Sample Application at any time and for any reason. All licenses granted to Licensee hereunder terminate upon termination or expiration of this Agreement.
Miscellaneous. This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of 8th Wall to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit 8th Wall’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without 8th Wall’s consent and any action or conduct in violation of the foregoing shall be void and without effect. 8th Wall expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Francisco, California; both parties hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
Please contact firstname.lastname@example.org if you have any questions or concerns regarding the Technology or the Sample Application.