BY CREATING AN ACCOUNT WITH 8TH WALL, INC (“WE,” “US” “OUR” OR “8TH WALL”) AND/OR USING OUR SERVICES (DEFINED BELOW), YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (THE “LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS AND CONDITIONS (THE “AGREEMENT”). THIS AGREEMENT GOVERNS YOUR USE OF 8TH WALL’S AUGMENTED REALITY FUNCTIONALITY IN COMPUTERS, MOBILE PHONES/TABLETS, AND OTHER DEVICES (THE “TECHNOLOGY”) AND ACCESS TO 8TH WALL’S PROPRIETARY AUGMENTED REALITY PLATFORM (THE “PLATFORM”) AND OTHER PRODUCTS AND SERVICES THAT 8TH WALL MAY PROVIDE (COLLECTIVELY, THE “SERVICES”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THAT ORGANIZATION OR ENTITY TO THESE TERMS. LICENSEE’S DOWNLOAD, INSTALLATION OR CONTINUED USE OF THE SERVICES WILL 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 AND/OR SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO ALL OF THESE TERMS, TO THE EXCLUSION OF ALL OTHER TERMS.
1. Accounts. Licensee will create an account and select a password and user name (“8th Wall User ID”) to access and use the Services. Licensee promises to provide accurate, complete and updated account information. Licensee will be responsible for maintaining the security of Licensee’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Licensee’s account with or without Licensee’s knowledge or consent. Licensee will also cooperate with 8th Wall in establishing a password or other procedures for verifying that only designated employees of Licensee have access to any administrative functions of the Services. Licensee will ensure that such designated employees do not transfer their accounts to any third party without our prior written consent.
2. Intellectual Property.
a. Limited License to Access the Services. 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 use and access the 8th Wall’s Platform and online portal solely for its internal business purposes.
b. Limited License to Use the Technology. 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 use the Technology for the sole purpose of allowing Licensee to build (strictly in accordance with our official user documentation) software applications (each an “App”) and that may communicate with the Platform, and for other purposes authorized by us in writing.
c. 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 will 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 will be at least as beneficial to 8th Wall as those contained herein.
d. 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.
3. Restrictions. Licensee will not use the Services to create, develop or continue 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 (and will not authorize or encourage any third party to): (i) reverse engineer or otherwise attempt to discover the source code of any aspect of the Services (except to the extent such restriction is prohibited by applicable law), (ii) modify, translate, or create derivative works based on the Services; (iii) except as expressly permitted herein, use the Services for timesharing or service bureau purposes or for any purpose other than its own use and benefit; (iv) or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations. Any rights not expressly granted are reserved.
4. Changes to the Technology. Licensee’s App will maintain 100% compatibility with the Technology and the Platform (including changes provided to Licensee by 8th Wall which will 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 Services that Licensee is using, including without limitation the Technology installed on each device (each, a “Device”) of Licensee’s end users.
5. 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. If Licensee chooses to purchase such Services, Licensee will pay 8th Wall fees for the applicable Service (“Fees”). We will not charge you any Fees without your prior authorization. Unless otherwise agreed to in writing, all Fees will be invoiced [annually/monthly/quarterly] in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Licensee will be responsible for all taxes associated with the Services (excluding taxes based on 8th Wall’s net income). All Fees paid are non-refundable and are not subject to set-off.
6. Improvements. Licensee may from time to time provide suggestions, comments or other feedback to 8th Wall with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for 8th Wall notwithstanding anything else. Licensee shall, and hereby does, grant to 8th Wall a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose
7. Confidentiality; Data Collection. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
a. Use and Non-Disclosure. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything else, 8th Wall is permitted to disclose (including through display of Licensee’s logo) that Licensee is one of its customers (including in its publicity and marketing materials).
b. Licensee Data. 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 (collectively, “Licensee Data”):
i. The version of the Technology;
ii. The company name associated with the development tool Licensee uses to develop the App (the “Developer Tool”) (e.g. Unity);
iii. The organization reverse domain associated with the App;
iv. The operating system and version running on Licensee’s Developer Tool, (e.g. Mac OSX 12.5.1 / Windows 10.02);
v. The version of Licensee’s Developer Tool, (e.g. Unity 5.6.1f Pro);
vi. The system language set on the operating system;
vii. A truncated hash of a device unique identifier;
viii. A truncated hash of the user ID associated with the developer tool; and
ix. Other similar non-personalized data.
Licensee will retain all right, title and interest in and to the Licensee Data, including all intellectual property rights therein. Licensee, not 8th Wall, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Licensee Data.
c. End User 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 (collectively, “Device Data”):
i. A unique identifier from each Device;
ii. The device model and manufacturer (e.g. Samsung S8 us-edition);
iii. The bundle ID of the App;
iv. Timing, performance, and error metrics of the App;
v. Each Device’s camera characteristics (e.g., the focal length of the camera);
vi. The operating system and version of each Device (e.g. Android 6.0.);
vii. The country in which each Device is located;
viii. The configured language set on each Device; and
ix. Other similar non-personalized data.
d. Aggregated Anonymous Data. Notwithstanding anything to the contrary, Licensee acknowledges and agrees that 8th Wall may (i) internally use and modify (but not disclose) Licensee Data and Device Data for the purposes of (A) providing the Services and any support or consultation services to Licensee and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for 8th Wall’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing 8th Wall’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by 8th Wall in connection with Licensee’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Licensee or any individual.
8. Indemnification. Licensee will 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 User’s or Licensee’s end users’ use or misuse of the Services (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 Licensee’s 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 will assist and cooperate with 8th Wall in asserting any available defenses.
9. DISCLAIMER. 8TH WALL PROVIDES THE SERVICES “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.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WILL 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 SERVICES. 8TH WALL’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT WILL 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 WILL 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.
11. Term; Termination. This Agreement is effective as of the date Licensee begins using the Services 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 Services. We may terminate this Agreement and Licensee’s access to the Services at any time and for any reason. All licenses granted to Licensee hereunder terminate upon termination or expiration of this Agreement. Without limiting the foregoing, 8th Wall may suspend or limit Licensee’s access to or use of the Services if (i) Licensee account is more than sixty (60) days past due, or (ii) Licensee’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with 8th Wall’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) 8th Wall will use reasonable good faith efforts to work with Licensee to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, 8th Wall will use commercially reasonable efforts to provide notice to Licensee describing the nature of the damage or degradation; and (c) 8th Wall will reinstate Licensee’s use of or access to the Services, as applicable, if Licensee remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued payment obligations (if applicable), ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Choice of Law; Arbitration. This Agreement is governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who will be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party will have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. LICENSEE UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, LICENSEE AND 8TH WALL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13. 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 will 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 will 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 will be void and without effect. 8th Wall expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
Please contact firstname.lastname@example.org if you have any questions or concerns regarding the Services.