commercial End User License Agreement-Zea Engine
ATTENTION: THIS END USER LICENSE AGREEMENT (“EULA” OR ‘AGREEMENT”) IS PROVIDED BY ZEA INC (‘ZEA”/”WE”/”US”) AND PERMITS ACCESS TO AND USE OF SOURCE CODE AND A COMPILED VERSION OF OUR PROPRIETARY SOFTWARE WHICH IS LICENSED TO YOU AND NOT SOLD THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES.
IF YOU PURCHASE ACCESS TO DOWNLOAD, INSTALL OR USE THE ZEA ENGINE SOFTWARE, YOU WILL HAVE ACCEPTED AND AGREED TO THE TERMS HEREIN. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO AND COMPLY WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
Last Modified May 1, 2021
“Authorized User” means Customer’s employees or third-party contractors who are permitted by Customer to access and use the Software and Your Content on your behalf. License fees are due on a per Authorized User basis.
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party to the other or embodied in the Software and/or Demo Content which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by someone exercising reasonable business judgment to be confidential;
“Content” means the data or other content that you upload, optimize, process and view in connection with your use of the Software.
"Customer" or "You" both the individual or individuals obtaining or installing the Software and any entity on whose behalf such individual or individuals are acting. "You" includes any entity that by majority voting interest controls, is controlled by, or is under common control with You;
“Documentation” means the instructions, requirements, guidelines and other documentation for the Software made available by Zea from time to time;
“Project” means one or more of your project(s) developed using the Software, inclusive of applications, user interfaces, services, platforms and any other developed content or functionality which utilizes any portion of the Zea Engine, whether or not ultimately commercialized or distributed by you.
"Software" means the Zea Engine binary and/or bytecode software program (excluding Third Party Software) that is made available to You including all versions and updates that Zea makes generally available during your subscription term.; and
“Third Party Software” means any software embedded in or delivered with the Software which is owned or licensed to ZEA by a third party.
2. Software License Terms
- License Grant. Subject to the terms and conditions of this Agreement and payment of the applicable license fees, Zea grants to You a non-exclusive, non-transferable, non-sublicensable internal license to download and run the Software to render real-time 3D scenes in your application. Each subscription to use the Software may be accessed and used by only the number of Authorized Users for whom a license fee has been paid.
- Third Party Software. If a separate license agreement for an item of Third-Party Software is: delivered to You or referenced in any material that is included in the download or distribution package for the Software, then such Third-Party Software shall govern Your use of that item or version of such Third-Party Software. Your right to use any Third-Party Software, third-party data or other third-party content provided with the Software shall be limited to the use necessary to operate the Software as permitted by this Agreement. No other rights in the Software or Third-Party Software are granted to You. Notwithstanding the foregoing, in the case of Third-Party Software that is licensed pursuant to open source licenses that prohibit the imposition of any restrictions on use beyond those contained in such open source licenses, the restrictions on use contained in this Agreement shall not be applicable to such Third-Party Software.
- Software Restrictions: You may not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software or provide access to any third party. You shall not modify or create any derivatives of the Software or merge all or any part of the Software with another program. You acknowledge that the Software contains Confidential Information and You shall not disclose such Confidential Information including any performance or benchmarking information about the Software without the written consent of Zea. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software except as explicitly permitted herein. Any third-party software, data or content (including the Third-Party Software) included with or as a part of the Software may be used only with the Software unless otherwise authorized in writing by Zea. You further agree that you may not make the Software available to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service; (d) access or use the Software to develop a competing product or service; or (e) do anything that could cause or result in Zea being subject to any open source license (or similar license) that requires as a condition of use, modification or distribution that the Software or other software combined or distributed with it be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
- Authorized Users. If you are a corporate entity, you may allow Authorized Users to access and use the Software on the terms of this EULA, provided you have purchased a sufficient quantity of subscriptions to cover each individual Authorized User and you ensure that each Authorized User is aware of the term of this Agreement and agrees to be bound by the same. In any event, You remain responsible for any breach of this Agreement by your Authorized Users.
3. Technical Support
This Agreement grants You the right to any updates or enhancements of the Software and priority technical support in respect to the Software. Additional plugins and other technical support services, if available, may be purchased separately from Zea as part of a paid evaluation or standard license agreement. You acknowledge and agree that Zea has no obligations under this Agreement to provide patches, updates, new releases or new versions of the Software beyond the term of this license.
4. Zea’s Intellectual Property Rights
You are solely responsible for any and all Content you upload or generate through the Software, and you represent and warrant that you own or control all necessary intellectual property rights in and to any such Content. To the extent that you own all necessary rights, titles, and interests in and to the Content, such rights remain with you. You hereby grant Zea a limited, non-exclusive, transferable, royalty-free, fully paid-up and revocable license to reproduce, perform and display, and facilitate the reproduction, performance, and display of, the Content in order to provide services to you hereunder.
USE OF THE SOFTWARE AND/OR DEMO CONTENT IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE CONTENT OR USER CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICES OR WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT YOUR ACCESS TO OUR SERVICES OR WEBSITE WILL BE UNINTERRUPTED; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT OUR SERVICES OR WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE CONTENT IS TIMELY, SECURE OR ERROR-FREE.
TO THE EXTENT LEGALLY PERMITTED WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE. WE ARE NOT LIABLE FOR ANY LOSS, WHETHER OF MONEY (INCLUDING PROFIT), GOODWILL, OR REPUTATION, OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF THE ZEA SERVICES, EVEN IF YOU ADVISE US OR WE COULD REASONABLY FORESEE THE POSSIBILITY OF ANY SUCH DAMAGE OCCURRING. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING CONTAINED IN THE PREVIOUS PARAGRAPH, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR ANY THIRD PARTY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE) IS LIMITED TO THE GREATER OF: (I) FEES PAID; AND (I) $100. UNDER NO CIRCUMSTANCES SHALL ZEA BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER.
You will indemnify and hold harmless Zea and its affiliates and our and their respective officers, directors, agents and employees (each an “Indemnified Party”), from any claim made by any third party, together with any amounts payable to the third party whether in settlement or as may otherwise be awarded, and reasonable legal costs incurred by any of the Indemnified Parties, arising from or relating to your use of our Services or Website, any alleged violation by you of the applicable terms, and any alleged violation by you of any applicable law or regulation. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you but doing so will not excuse your indemnity obligations.
9. Term & Termination
This Agreement shall continue for the term of Your paid license which, unless otherwise agreed in Your Invoice will be for a period of twelve (12) months. If You are the subject of a direct or indirect acquisition or change of control or if You sell all or substantially all of Your assets, Zea may terminate this Agreement immediately upon written notice to You. You must, upon termination, destroy all copies of the Software. You may terminate this Agreement by cancelling your subscription and ceasing all commercial activities using the Software and Demo Content under Your control and notifying Zea of such destruction. In addition to this Section, the Sections entitled Definitions, Limited Warranties, Disclaimer of Warranties, Limitation of Liability, Title, Third-Party Beneficiaries, and General Terms shall continue in force even after any termination of this Agreement.
10. Third-Party Beneficiaries
You are hereby notified that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to (i) the use by You of certain components of the Software in which such third parties have an interest, or (ii) services provided by Affiliates, licensors, subcontractors, and/or distributors of Zea; such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Zea.
Zea shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Software or other Zea products or services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Software, showcase content and/or Zea’s business more generally.
12. General Terms
This Agreement is the entire agreement between You and Zea in respect to the Software and the Software shall be deemed to be licensed pursuant to the terms and conditions of this Agreement unless You have executed a written license agreement with zea or a distributor of Zea in which case the Software shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without Zea’s prior written. You agree to comply with all export laws and regulations to ensure that the Software and any technical data related thereto is not exported in violation of, or used for any purposes prohibited by, such laws and regulations. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by the laws of the Province of Ontario. No choice of laws rules of any jurisdiction shall apply to this Agreement. You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Software or any services provided in respect to the Software in a court in Toronto, Ontario Canada and You consent to the jurisdiction of such courts for any such action or proceeding.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, our Website and Services access to showcase content or our software (or any part thereof) with or without notice. If you wish to terminate your account with Zea, you may discontinue using our Services Software and delete any applications or software that you may have downloaded from us. We may amend this EULA at any time by posting revisions through a link on our website, with no additional notice to you. Your continued access to and use of our Services Software will constitute acceptance of our amended EULA. If you do not agree with any of the terms of this EULA, or any future amendments, your sole recourse is to cease use of our Services. If you have any questions regarding this EULA please contact [email protected]
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM AND AGREE TO THEM.