End User License Agreements
- Motive EULA
For the Optitrack Motive product
THIS END USER LICENSE AGREEMENT (“EULA”) IS ENTERED INTO BETWEEN YOU AND NATURALPOINT, INC. (“NATURALPOINT,” “WE,” “OUR,” OR “US”) AND GOVERNS YOUR USE OF NATURALPOINT’S OPTITRACK SOFTWARE (TOGETHER WITH ANY UPGRADES, UPDATES, PATCHES, MODULES, FEATURE ENHANCEMENTS AND ADDITIONAL VERSIONS OF THE OPTITRACK SOFTWARE THAT REPLACE OR SUPPLEMENT THE ORIGINAL OPTITRACK MOTIVE SOFTWARE, AND ANY ACCOMPANYING MANUALS, CONFIGURATION AND/OR OPERATION INSTRUCTIONS AND DOCUMENTATION, THE “SOFTWARE”) PROVIDED TO YOU BY NATURALPOINT.
THIS EULA DOES NOT GRANT YOU ANY RIGHT OR INTEREST IN OR TO NATURALPOINT’S OPTITRACK SDK OR API. NATURALPOINT’S OPTITRACK SDK AND API ARE LICENSED UNDER SEPARATE LICENSE TERMS AND CONDITIONS, ACCESSIBLE HERE: https://optitrack.com/about/legal/eula.html.
IF YOU DOWNLOAD, INSTALL OR USE THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THIS EULA. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, THEN YOU ARE NOT PERMITTED TO INSTALL, ACCESS, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
Subject to your compliance with this EULA, NaturalPoint hereby grants you a personal, limited, nonexclusive, nontransferable, nonsublicensable, revocable, worldwide license to download, install, access and use the Software solely with NaturalPoint’s Optitrack hardware products (the “Hardware”) or to process data gathered by the Hardware.
Compliance. You agree that you will comply with: (a) all instructions and requirements in any Software documentation that NaturalPoint provides or makes available to you (the “Documentation”); and (b) all applicable local, state, national, and international laws and regulations (as each of these may be amended or modified from time to time (“Applicable Laws”)) with respect to your use of the Software.
Restrictions. Except as expressly permitted by this EULA, you may not, and you will not encourage, assist or authorize any other person to: (a) incorporate any portion of the Software into your own programs or compile any portion of the Software in combination with your own programs; (b) sell, rent, lease, lend, loan, distribute, act as a service bureau or managed service, publicly communicate, transform, or sublicense the Software or otherwise assign any rights to the Software in whole or in part to any third party; (c) modify, alter, tamper with, repair, or otherwise create derivative works of the Software; (d) reverse engineer, disassemble, or decompile the Software or apply any other process or procedure to derive the source code of any software included in the Software or to otherwise determine or attempt to determine how the Software works or operates; (e) use the Software to process, transmit or otherwise make available any content that infringes or misappropriates the intellectual property rights or other proprietary rights of any third party, or without an appropriate license, permission or certification (including as may be required by Applicable Laws); or (f) use the Software to create additional software that replicates the functionality of, or is intended to replace, the Software. You will not use, modify or distribute the Software in any manner that would require disclosure, license, or distribution of the source code of the Software or grant others any rights to modify the Software. You will not remove, modify, or obscure any copyright, patent, trademark or other proprietary or attribution notices on or in any Software. Copies of the Software are permitted only for back-up purposes and must be marked by you as a back-up copy. You may not make copies of the Documentation unless expressly authorized by NaturalPoint in writing (email to suffice).
RESERVATION OF RIGHTS
The Software is owned by NaturalPoint, our affiliates and our licensors. The structure, organization, and code of the Software are our valuable trade secrets and constitute our confidential information. You acknowledge and agree that title to the Software and all the copies thereof, including all industrial and intellectual property rights (including the exclusive rights of economic exploitation), copyright, trade secrets and patent rights, are owned by NaturalPoint, our affiliates and our licensors. The Software is protected by Applicable Laws, including without limitation copyright laws and international treaty provisions. Except for the rights explicitly granted to you in this EULA, all right, title and interest in the Software are reserved and retained by us, our affiliates, or our licensors. You do not acquire any intellectual property rights or other rights in the Software as a result of downloading, installing, accessing or using the Software.
If you elect to provide any Suggestions to NaturalPoint or its affiliates, NaturalPoint and its affiliates will be entitled to use the Suggestions without restriction. For purposes of this EULA, “Suggestions” means all suggested improvements, enhancement or other feedback concerning the Software that you provide to NaturalPoint or its affiliates.
THIRD PARTY SOFTWARE AND NOTICES
Some components of the Software (whether developed by NaturalPoint, its affiliates or third parties) (the “Third Party Software”) may be governed by separate licenses, as indicated in the license, notice, readme, or other files distributed with the applicable component of the Software. Your license rights with respect to Third Party Software are defined by the applicable Third Party Software license, and nothing in this EULA will restrict limit, or otherwise affect any rights or obligations you may have, or conditions to which you may be subject under such Third Party Software licenses. You agree to be bound by and subject to the terms and conditions of each applicable Third Party Software license. If you do not agree to be bound by and subject to the terms and conditions of each applicable Third Party Software license, you must terminate this EULA by uninstalling and destroying all copies of the Software that are in your possession or control. If NaturalPoint’s rights from a licensor of Third Party Software are limited, suspended or terminated for any reason, your rights will also be so limited, suspended or terminated.
NaturalPoint may terminate this EULA upon written notice to you if you fail to comply with any term of this EULA. This EULA (including any rights granted to you in this EULA) will further immediately and automatically terminate without notice from NaturalPoint if you: (a) fail to implement any required security or other updates; or (b) bring any action against us or our affiliates alleging the infringement of your intellectual property rights or other proprietary rights.
Upon termination, you must cease all access to and use of the Software, remove the Software from all computers and servers on which it is installed, and destroy (and certify in writing such destruction) all copies of the Software.
Limited Performance Warranty. NaturalPoint warrants to you that the media, if any, on which the Software is delivered will be free of defects and that the Software, when installed and operated pursuant to NaturalPoint’s instructions, will substantially conform to the Documentation, in each case for a period of 90 days after the date of shipment of the Software. Your exclusive remedy for a breach of this limited warranty is to return any allegedly defective Software to NaturalPoint and for NaturalPoint to repair or replace it (at NaturalPoint’s option and in its sole discretion). This limited warranty is not transferable and does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Software by you or your agents; any abuse, misuse or negligent acts by you or your agents; modification by you or your agents of any interfaces or any software or hardware interfacing with the Software; or any failure by you or your agents to follow NaturalPoint’s installation, configuration, use or operation instructions, as set forth in the Documentation (including failure to install any updates required by NaturalPoint from time to time, for example, for security or as required by Applicable Laws).
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING PARAGRAPH, THE SOFTWARE IS DELIVERED TO YOU “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NOTWITHSTANDING THE FOREGOING, THE THIRD PARTY SOFTWARE IS PROVIDED TO YOU “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NATURALPOINT AND ITS LICENSORS, AND EACH OF THEIR RESPECTIVE AFFILIATES AND SUPPLIERS (COLLECTIVELY, THE “RELEASED PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING FROM ANY ACTUAL OR ALLEGED COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHER, NATURALPOINT DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS IN THE SOFTWARE ARE CORRECTABLE OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A RELEASED PARTY OR AN AUTHORIZED REPRESENTATIVE OF A RELEASED PARTY WILL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
High Risk Applications. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, MEDICAL OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK APPLICATIONS"). NAUTRALPOINT AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK APPLICATIONS.
LIMITATION OF LIABILITY
Liability Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY RELEASED PARTY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE RELEASED PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
Damages Cap. THE AGGREGATE LIABILITY UNDER THIS EULA OF A RELEASED PARTY WILL NOT EXCEED THE LESSER OF $10,000 USD OR THE AMOUNT RECEIVED FROM YOU BY NATURALPOINT FOR THE SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE.
THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER NATURALPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify, and hold harmless NaturalPoint, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorney’s fees) arising out of or relating to any third party claim concerning: (a) your downloading, installation, use, reproduction or distribution of the Software (including in combination with devices, software, or other items); (b) your unauthorized use of the Software; or (c) your breach of this EULA or violation of Applicable Laws. You will reimburse us for our reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in this paragraph at our then-current hourly rates.
EXPORT, IMPORT AND GOVERNMENT RESTRICTIONS
You acknowledge that the Software is subject to U.S. export jurisdiction. You are solely responsible for complying with all Applicable Laws that apply to the download, installation and use of the Software in your jurisdiction. You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, the Software or any computer equipment or device containing the Software to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S. Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority, including all end-user, end-use and destination restrictions issued by U.S. and other governments. You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority. You understand that certain functionality of the Software may be subject to use, import or export restrictions in the event that you transfer the Software from the country of delivery and you are responsible for complying with any such applicable restrictions. The Software is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Software. If you are using the Software on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Software. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
The following paragraphs survive termination: “RESERVATION OF RIGHTS”; “SUGGESTIONS”; “WARRANTY; DISCLAIMERS”; “LIMITATIONS OF LIABILITY”; “INDEMNIFICATION”; and “GENERAL.”
We may amend this EULA at any time in our sole discretion by posting the revised terms at https://optitrack.com/about/legal/eula.html or within an update or upgrade of the Software. Your continued use of the Software after the effective date of the amended EULA evidences your agreement to be bound by it. If you do not agree to a change, you must stop using the Software and terminate this EULA.
You consent to the public use of your personal and/or corporate name as a customer of NaturalPoint, unless you notify NaturalPoint in writing that you withhold such consent.
Governing Law; Disputes. This EULA is governed by the laws of the State of Oregon and the United States of America, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute relating in any way to the Software or this EULA will only be adjudicated in a state or federal court located in Multnomah County, Oregon. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, any party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights.
Force Majeure. NaturalPoint and its affiliates shall not be liable for any delay or failure to perform any obligation under this EULA where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or other telecommunications failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Data Privacy. We will only use Account Information in accordance with the NaturalPoint Privacy Notice, located at https://optitrack.com/about/legal/privacy-policy.html (and any successor or related locations designated by us), as may be updated by us from time to time, and you consent to such usage. You further acknowledge and agree that personal information supplied by you, including Account Information, may be transferred to other countries or jurisdictions outside of your country or jurisdiction of residence, and that the protections afforded such information under the laws and regulations of the country or jurisdiction to which the information is transferred may not be comparable to or as protective as the protections afforded such information in your country or jurisdiction of residence. You represent and warrant that your creation, collection, receipt, access, use, storage, disposal, transfer and disclosure of your employees’ personal information does and will comply with all applicable federal, national, state, municipal and local privacy and data protection laws, as well as all other applicable regulations and directives, and that you have obtained all consents required by the foregoing laws. “Account Information” means information about you that you provide to us in connection with this EULA. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your NaturalPoint account.
Notices. We may provide any notice to you under this EULA by sending a message to the email address then associated with your account. Notices we provide by email will be effective when we send the email, whether or not you actually receive the email. It is your responsibility to keep your email address current. To give us notice under this EULA, you must contact NaturalPoint by personal delivery, overnight courier or registered or certified mail to the mailing address listed below. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
Attn: Legal Department
3658 SW Deschutes St.
Corvallis, OR 97333
Independent Contractors; Non-Exclusive Rights. NaturalPoint and you are independent contractors, and this EULA will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
Language. All communications and notices made or given pursuant to this EULA must be in the English language. If we provide a translation of the English language version of this EULA, the English language version of the EULA will control if there is any conflict.
No Third Party Beneficiaries. Except as set forth in the INDEMNITY paragraph above, this EULA does not create any third party beneficiary rights in any individual or entity that is not a party to this EULA.
Entire Agreement and Severability. Unless you have entered into another written agreement with respect to the Software which has been signed by you and an authorized representative of NaturalPoint and which conflicts with the terms of this EULA, you agree that this EULA supersedes all prior written or oral agreements, warranties or representations with respect to use of the Software. If any term (or part thereof) of this EULA is found to be invalid or unenforceable, the remaining provisions (including other valid parts within the effected term) will remain effective. You acknowledge that you have read this EULA, that you understand it, that you agree to be bound by its terms, and that this is the complete and exclusive statement of the agreement between you and NaturalPoint regarding the Software. Our failure to insist upon or enforce your strict compliance with this EULA will not constitute a waiver of any of our rights.
If you have any questions about this EULA, or if you want to contact NaturalPoint for any reason, please visit our website for current contact information at: www.naturalpoint.com
NATURALPOINT, MOTIVE and OPTITRACK are trademarks of NaturalPoint, Inc.
- OptiTrack SDK EULA
THIS END USER LICENSE AGREEMENT (“EULA”) IS ENTERED INTO BETWEEN YOU AND NATURALPOINT, INC. (“NATURALPOINT”) AND GOVERNS YOUR USE OF NATURALPOINT’S OPTITRACK SDK (AS DEFINED BELOW).
THIS EULA DOES NOT GRANT YOU ANY RIGHT OR INTEREST IN OR TO NATURALPOINT’S OPTITRACK SOFTWARE. NATURALPOINT’S OPTITRACK SOFTWARE IS LICENSED UNDER SEPARATE LICENSE TERMS AND CONDITIONS, ACCESSIBLE HERE: https://optitrack.com/about/legal/eula.html.
IF YOU DOWNLOAD, INSTALL, ACCESS OR USE THE OPITRACK SDK, YOU ACCEPT AND AGREE TO BE BOUND BY THIS EULA. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE OPTITRACK SDK. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, THEN YOU ARE NOT PERMITTED TO INSTALL, ACCESS, DOWNLOAD OR OTHERWISE USE THE OPTITRACK SDK.
- Optitrack SDK. This EULA governs your use of the OptiTrack SDKs, including the OptiTrack Camera SDK and Motive API, defined to mean NaturalPoint’s proprietary: (a) user documentation provided in printed and/or electronic media; (b) application programs, utilities, tools and API information; (c) sample or demonstration software code; and/or (d) any updates or upgrades thereto (to the extent updates or upgrades are made available by OptiTrack).
- License Grant. Subject to your payment of applicable fees, if any, and your strict compliance with the terms and conditions of this EULA, NaturalPoint hereby grants to you, during the term of this EULA, a limited, revocable, non-exclusive, non-transferrable (except as permitted in this Section 2), non-sublicensable (except as permitted in this Section 2) license to:
- use the Optitrack SDK solely to develop, test and create your own products as authorized in Section 4(b) below (“Product(s)”); and
- copy, distribute, and sublicense the distributable elements of the OptiTrack SDK solely as part of the Products for installation on your end-customers’ devices and subject to the terms of a legally binding license agreement between you and the end-customer that complies with Section 4(c) below.
- Ownership and Reservation of Rights. The OptiTrack SDK is licensed and not sold. NaturalPoint and/or its affiliates or licensors will and do retain all right, title and interest in and to the OptiTrack SDK, and any and all patent, copyright, trademark, trade secret, and any other intellectual property or industrial rights in and to or relating to the OptiTrack SDK, including any modifications, improvements, updates, and derivative works thereof or thereto. NaturalPoint reserves all rights and interests in and to the OptiTrack SDK and all other NaturalPoint intellectual property rights that are not expressly granted to you under this EULA, and you do not acquire any other rights, whether express, implied or otherwise, in the OptiTrack SDK or any other NaturalPoint intellectual property rights or technology other than those rights expressly granted under this EULA.
Restrictions and Obligations.
- Restrictions. Except as expressly permitted herein, you will not, and will not permit, encourage, or enable any third party to: (i) sell, sublicense, rent, loan or lease any portion of the OptiTrack SDK to any third party; (ii) modify, disassemble, decompile or reverse engineer any part of the OptiTrack SDK (except that you may modify any sample or demonstration source code included in the OptiTrack SDK); (iii) copy (except for reasonable backup purposes and with all labelling and proprietary rights notices intact) or otherwise reproduce the OptiTrack SDK, in whole or in part, or modify, adapt, alter, translate or incorporate into or with other software or technology or create a derivative work of any part of, the OptiTrack SDK; (iv) remove, modify, or otherwise tamper with proprietary rights notices or legends on the OptiTrack SDK; (v) use the OptiTrack SDK in any manner to provide service bureau, time sharing or other computer services to third parties; (vi) distribute the SDK (other than the distributable elements of the OptiTrack SDK used or incorporated in the Products in accordance with this EULA) or any license key(s); (vii) use the OptiTrack SDK in or as part of the development of any product or service that is competitive with or similar to the OptiTrack SDK; or (viii) disclose the results of any performance benchmark or similar testing of the OptiTrack SDK to any third party without NaturalPoint’s prior written consent.
- Products. You agree as follows with respect to the Products:
- The Products shall not substantially replicate the functionality of the products or services offered by NaturalPoint. Subject to the preceding sentence and your other obligations and responsibilities under this EULA, you may develop and distribute Products that are similar to or that otherwise compete with NaturalPoint products or services, provided that such Products add substantial additional functionality beyond the functionality available through NaturalPoint’s products or services.
- You acknowledge and agree that you are solely responsible for, and that NaturalPoint has no responsibility or liability of any kind in connection with, the content, development, operation, support or maintenance of any Products. Without limiting the foregoing, you will be solely responsible for: (1) the technical installation and operation of the Products; (2) creating and displaying information and content on, through or within the Products; (3) ensuring that the Products do not violate or infringe the intellectual property rights of any third party; (4) ensuring that the Products are not offensive, profane, obscene, libelous or otherwise illegal or in violation of applicable laws; (5) ensuring that the Products do not contain or introduce any virus, Trojan horse, worm, software lock, drop dead device or any other limiting routine or harmful code into any NaturalPoint or end-customer IT systems, networks, hardware or software; and (6) ensuring that the Products are not designed to or utilized for the purpose of spamming end users or any third parties.
- You acknowledge and agree that you are solely responsible for providing all support and technical assistance to end-customers of the Products. NaturalPoint has no obligation to provide such support or technical assistance to end-customers or their users, and you agree not to represent to end-customers or their users that NaturalPoint is available to provide such support or technical assistance.
- End-Customer Agreement. You agree to cause each end-customer to whom you provide or distribute a Product to agree to a binding end user license agreement including terms and conditions that are at least as protective of the OptiTrack SDK and NaturalPoint’s intellectual property rights associated therewith or embodied therein as the terms and conditions of this EULA. Such agreement shall further disclaim any and all representations and warranties on the part of NaturalPoint, and exclude and disclaim all liability of any kind on the part of NaturalPoint.
- Testing. You will be solely responsible for the testing and evaluation of the OptiTrack SDK for your purposes.
- APIs. The license rights granted in Section 2 above may include the right to make calls to certain APIs owned or controlled by NaturalPoint. The parties agree as follows with respect to the APIs:
- You shall not: (1) under any circumstances, use the APIs in any manner that does or could potentially undermine the security of the APIs, or interfere with, modify or disable any features, functionality, or security controls of the APIs (or attempt to do any of the foregoing); or (2) exceed rate or call limits in connection with the APIs, as determined by NaturalPoint.
- NaturalPoint shall use commercially reasonable efforts to ensure that the APIs are available for use and/or access on an uninterrupted basis. However, you acknowledge and agree that the APIs will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generally, and other causes. In the event the APIs become unavailable for access and/or use (other than as a result of scheduled maintenance and/or system downtime), NaturalPoint shall use commercially reasonable efforts to restore such availability. THE FOREGOING REMEDIES ARE YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS EULA FOR ANY UNAVAILABILITY OF THE APIS. YOU ACKNOWLEDGE AND AGREE THAT EXCEPT AS OTHERWISE SET FORTH HEREIN, NATURALPOINT SHALL HAVE NO LIABILITY TO YOU AND/OR TO ANY END-CUSTOMER OR OTHER THIRD PARTY WITH RESPECT TO ANY SUCH UNAVAILABILITY.
- Compliance with Laws; Privacy. You agree that in using the OptiTrack SDK, you will comply with all applicable laws and protect the privacy and legal rights of end-customer users. Without limiting the foregoing, you agree to prominently display a privacy notice that describes to end-customer users the information that is collected by you and your Product and how such information is used and shared. You will maintain and process all end-customer user information in accordance with your privacy notice and all applicable laws in any countries in which the Products are used.
- Trademarks. To the extent the OptiTrack SDK displays NaturalPoint’s trademark, trade names, logos or other branding (the “NaturalPoint Marks”), NaturalPoint hereby grants to you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable, royalty-free license, during the term of this EULA only and subject to the terms and conditions set forth herein, to display the NaturalPoint Marks as part of the normal operation of the OptiTrack SDK. You acknowledge NaturalPoint’s ownership of and exclusive rights in and to the NaturalPoint Marks and all goodwill associated therewith, and acknowledge and agree that any and all use of the NaturalPoint Marks shall inure to the sole and exclusive benefit of NaturalPoint. You agree not to take any action or engage in any conduct that is inconsistent with or contrary to NaturalPoint’s sole and exclusive rights in and ownership of the NaturalPoint Marks. NaturalPoint does not grant you any other rights to use the NaturalPoint Marks, whether by implication, estoppel or otherwise.
- Support Services. NaturalPoint is not obligated under this EULA to provide any technical support for the OptiTrack SDK. If any such technical support is provided, such support is provided is “as is”, with all faults”, and without representations or warranties of any kind.
- Updates. NaturalPoint, at its discretion, may make available to you updates or upgrades to the OptiTrack SDK. In the event that NaturalPoint provides any such updates or upgrades, the terms and conditions of this EULA will govern any such updates or upgrades, except that if such upgrades or updates are accompanied by a separate set of terms, those terms will govern and control the use of the upgrades or updates to the extent of any conflict with or terms that are in addition to this EULA.
- Disclaimer. THE OPTITRACK SDK IS PROVIDED “AS IS” AND WITH ALL FAULTS. NATURALPOINT AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NATURALPOINT DOES NOT REPRESENT OR WARRANT THAT THE OPTITRACK SDK WILL MEET YOUR REQUIREMENTS, THAT THE OPTITRACK SDK IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM(S), OR THAT THE USE OF THE OPTITRACK SDK WILL BE UNINTERRUPTED, ERROR- FREE, OR FREE FROM ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT(S), INCLUDING BUT NOT LIMITED TO, PATENTS, UTILITY MODELS, TRADEMARKS OR COPYRIGHTS, OR THAT DEFECTS IN THE OPTITRACK SDK WILL BE CORRECTED. FURTHERMORE, NATURALPOINT AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE USE BY YOU OF THE OPTITRACK SDK (INCLUDING THE RESULTS GENERATED BY SUCH USE), INCLUDING WITHOUT LIMITATION, THE CORRECTNESS, ACCURACY, QUALITY, CURRENTNESS, OR RELIABILITY OF THE OPTITRACK SDK OR ANY CORRESPONDING RESULTS, OR THE APPROPRIATENESS OF THE OPTITRACK SDK OR ANY CORRESPONDING RESULTS FOR A PARTICULAR TASK OR APPLICATION. NATURALPOINT AND ITS AFFILIATES DO NOT WARRANT THAT YOU WILL BE ABLE TO DEVELOP OR MAKE A PRODUCT USING THE OPTITRACK SDK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NATURALPOINT OR ITS REPRESENTATIVES SHALL CREATE A REPRESENTATION OR WARRANTY ON THE PART OF NATURALPOINT WITH RESPECT TO THE OPTITRACK SDK. ALL RISK ASSOCIATED WITH THE USE OF THE OPTITRACK SDK IS WITH YOU.
- High Risk Applications. THE OPTITRACK SDK IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, MEDICAL OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK APPLICATIONS"). NAUTRALPOINT AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK APPLICATIONS.
- Limitation of Liability. IN NO EVENT WILL NATURALPOINT AND ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE, OR COST OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT (INCLUDING AN ACTION IN CONTRACT OR TORT), AND REGARDLESS OF WHETHER NATURALPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH NATURALPOINT WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. IN THE EVENT OF ANY CLAIM RELATED IN ANY WAY TO THIS AGREEMENT OR THE OPTITRACK SDK, YOU ACKNOWLEDGE AND AGREE THAT NATURALPOINT’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE AMOUNT OF ONE-HUNDRED U.S. DOLLARS (U.S. $100 NOTHING IN THIS SECTION EXCLUDES OR LIMITS NATURALPOINT’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Indemnification. You agree to defend, indemnify and hold harmless NaturalPoint and its affiliates, and each of their respective officers, directors, agents, and employees, for, from, and against any and all claims, demands, loss, damage, liability, cost, or expense (including, but not limited to, attorneys' fees at trial, on appeal, and on any petition for review), arising out of or related to: (a) your breach or failure to comply with any Open Source Software license or other third party software license; (b) your breach of this EULA; (c) the conduct of your business; (d) your use of the OptiTrack SDK or the NaturalPoint Marks; (e) your Products; or (f) your infringement, misappropriation, or violation of the intellectual property rights or other proprietary rights of any third party.
- This EULA commences on the date you click to accept the terms and conditions of this EULA when provided the opportunity to do so, and will continue in effect until terminated. You may terminate this EULA by notifying NaturalPoint in writing that you have ceased all use of the OptiTrack SDK. Additionally, your rights and licenses under this EULA will automatically terminate and cease to be effective, without any notice or action by NaturalPoint, in the event that you breach or otherwise fail to comply with any term of this EULA.
- Upon the termination of this EULA, you will cease all use of the OptiTrack SDK and permanently delete and make unrecoverable the OptiTrack SDK and all copies thereof from your computer and any other device on which it was installed. Upon any termination of this EULA, Sections 1, 3, 8, 9, 10, 11(b), and 12 will survive.
Governing Law and Venue; Governing Language.
- Governing Law. This EULA is governed by the laws of the State of Oregon and the United States of America, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute relating in any way to the OptiTrack SDK or this EULA will only be adjudicated in a state or federal court located in Multnomah County, Oregon. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, any party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights.
- ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT AND/OR THE OPTITRACK SDK SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
U.S. Government Restricted Rights; Export Restrictions.
- U.S. Government Restricted Rights. The OptiTrack SDK is a "commercial item," as that term is defined at 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4, all U.S. Government users acquire the OptiTrack SDK with only those rights set forth herein.
- Export Restrictions. You may not download, export or re-export the OptiTrack SDK: (i) into, or to a national or resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Accordingly, you hereby represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that NaturalPoint has no responsibility with respect thereto.
Third Party Software.
- Open Source Software. You shall not take any action that would require, indicate, or imply that the OptiTrack SDK is or may be licensed under the terms of any Open Source Software license. By way of illustration and not by way of limitation, you shall not use or incorporate the OptiTrack SDK with any Open Source Software licensed under any license terms that: (i) impose or could impose a requirement or condition that the OptiTrack SDK, or any software or source code used or integrated therewith: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of making modifications or derivative works; or (3) be redistributable at no charge; or (ii) otherwise impose or could impose any other material limitation, restriction, or condition on the right or ability of NaturalPoint to use or distribute the OptiTrack SDK, or any software or source code used or integrated therewith. You shall promptly inform NaturalPoint in writing of any Open Source Software use in violation of this Section of which you become aware. For purposes of this Section, “Open Source Software” means any software code that is distributed as “free software” or “open source software” or that is otherwise distributed publicly in source code form under terms that permit modification and redistribution of such software.
- Third Party Software. The OptiTrack SDK includes and uses the third party software components listed at https://optitrack.com/about/legal/eula.html. You acknowledge and agree that such third party software is subject to and governed by the license terms under which such third party software components are licensed and you agree to strictly comply with such license terms. Any breach of such license terms by you shall be deemed a breach of this EULA.
- Records. You agree to keep complete and accurate records with respect to your use of the OptiTrack SDK sufficient to determine your compliance with the terms and conditions of this EULA. NaturalPoint shall have the right to audit and inspect such records upon reasonable prior notice to you, and you agree reasonably cooperate with NaturalPoint in connection with any such audit and inspection.
- Severability. If any provision of this EULA is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this EULA, while the remainder of this EULA will continue in full force and effect.
- No Assignment. You will not transfer, assign, or delegate the OptiTrack SDK or any of your rights or obligations under this EULA, by operation of law or otherwise, without the prior written consent of NaturalPoint, which shall not be unreasonably refused, withheld, conditioned or delayed. Any transfer, assignment, or delegation of any of your rights or obligations under this EULA in violation of this Section is void and of no effect.
- Entire Agreement; General. This EULA constitutes the entire agreement between you and NaturalPoint and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this EULA. This does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and NaturalPoint. Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The waiver by either party of any default or breach of this EULA may only be made in writing and will not constitute a waiver of any other or subsequent default or breach.
- Changes to this Agreement. This EULA may be unilaterally modified, changed or amended by NaturalPoint and the parties agree that any such modifications, changes or amendments (“Amendments”) shall be binding on the parties to the extent the Amendments: (i) are generally beneficial to the parties; or (ii) do not materially conflict with the subject and purpose of the transactions governed by this EULA, in addition to being reasonable in the light of the necessity and reasonableness of the matters changed by the Amendments. NaturalPoint will make the Amendments available and accessible to you in the same manner in which NaturalPoint makes available the EULA, such Amendments to be made available and accessible in advance of the effective date of such Amendments.
- Plugins EULA
For NaturalPoint, Inc. plugins
NOTICE TO CUSTOMER
This EULA is a contract between you (either an individual person or an entity, referred to herein as “you”) and NaturalPoint, Inc. ("NaturalPoint"), and governs your use of the plugin that accompanies this EULA, including any associated media, printed materials, and documentation made available by NaturalPoint in connection therewith (the “Plugin(s)”). This EULA is solely between NaturalPoint and you; any third party providing products or services that interact with or integrate with the Plugin is not a party to this EULA.
BY EXPRESSLY ACCEPTING THIS EULA OR BY DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE PLUGIN, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND ARE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE THE PLUGIN AND YOU MUST PROMPTLY RETURN THE PLUGIN. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.
“Plugin” means the NaturalPoint software plugin installed, downloaded, or otherwise licensed by you under this EULA, in object code only. The Plugin is copyrighted, trade secret and confidential information of NaturalPoint, its affiliates or Third Party Licensors, who maintain exclusive title to the Plugin and retain all rights not expressly granted by this EULA.
“Hardware” means a single unit of NaturalPoint hardware for which you are authorized to use the Plugin.
Subject to all of the terms, conditions and restrictions of this EULA, NaturalPoint grants to you a limited, personal, non-transferable, non-assignable, non-sublicensable, non-exclusive license to use the Plugin, solely in machine-readable, object or executable form, only with the Hardware.
THIRD PARTY SOFTWARE PROGRAMS AND LICENSES
The Plugin includes additional software (“Third Party Program(s)”) licensed by third parties (“Third Party Licensor(s)”), under the terms of a third party EULA (“Third Party License”) which is available at the following link: https://optitrack.com/about/legal/eula.html Third Party Programs are subject to the terms of the specific licenses under which they are distributed by their respective Third Party Licensors. By using the Plugin, you acknowledge and agree that you have been provided access to and an opportunity to review such terms, and you agree to comply with the Third Party Licensor terms for the benefit of the applicable Third Party Licensor.
Access to certain Third Party Program functionality and/or services may require you to enter into separate Third Party License agreements with the applicable Third Party Licensor. Your use of any such Third Party Program functionality and/or services is expressly conditioned on your entering into a binding Third Party License with the applicable Third Party Licensor and NaturalPoint and its affiliates shall have no obligation to provide you access or use of, or support and maintenance with respect to, such Third Party Program functionality and/or services.
RESTRICTIONS AND UNAUTHORIZED USE
Except as otherwise expressly agreed by NaturalPoint, you shall not (and will not allow any third party to): (a) decompile, disassemble, or otherwise reverse-engineer the Plugin or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Plugin by any means whatsoever; (b) sell, sublicense, rent, loan, lease, distribute, market, or commercialize the Plugin for any purpose; (c) remove any product identification, proprietary, copyright or other notices contained in the Plugin; (d) copy, reproduce, republish, upload, post or transmit the Plugin in any way; (e) modify or create a derivative work of any part of the Plugin, or incorporate the Plugin into or with other products or software, except for solely internal business use by the licensee; (f) use the Plugin with any other hardware other than the Hardware; (g) use the Plugin to create a competitive offering; (h) share or publish the results of any benchmarking of the Plugin without NaturalPoint’s prior written consent; or (i) use the Plugin to process, transmit or otherwise make available any content that infringes or misappropriates the intellectual property rights or other proprietary rights of any third party.
You acknowledge that the Plugin, and the underlying source code, algorithms, data structures, methods, processes, screen formats, report formats, ideas and concepts are valuable intellectual property owned by NaturalPoint, its affiliates, and Third Party Licensors. NaturalPoint, its affiliates, and Third Party Licensors reserve all rights not expressly granted hereunder. You agree not to challenge the ownership or rights in and to the Plugin, including without limitation, all copyrights and other proprietary rights. If you provide any Suggestions to NaturalPoint or its affiliates, NaturalPoint and its affiliates will be entitled to use the Suggestions without restriction. As used in this Section, “Suggestions” means all suggested improvements to the Plugin or the Hardware that you provide to NaturalPoint. During and after the term of this EULA, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against NaturalPoint or any of its affiliates, customers, vendors, business partners, or Third Party Licensors, any patent infringement or other intellectual property infringement claim regarding the Plugin or Hardware. You acknowledge and agree that any violation of the terms of this Section would irreparably harm NaturalPoint and that NaturalPoint may enforce the terms of this Section through injunctive relief, without limitation to any other rights and remedies available to NaturalPoint.
You agree that within thirty (30) days of a written request by NaturalPoint or NaturalPoint’s authorized representative, you will fully document and certify that your use of the Plugin conforms to this EULA.
This license is non-transferable. You may not distribute, sublicense, assign, share, sell, grant a security interest in, use for service bureau purposes, or otherwise transfer the Plugin or your license to use the Plugin without the prior written consent of NaturalPoint, and then only upon a permanent transfer of the Hardware on which the Plugin may be installed or downloaded and provided the Plugin is included in such transfer and you retain no copies of the Plugin.
HARDWARE AND USAGE DATA
You acknowledge that, as a default setting, the Plugin or related NaturalPoint software may collect and send to NaturalPoint certain “Systems Data,” defined as data, content and information regarding your use of the Plugin. “Systems Data” may include systems administrative data, statistical and demographical data, and operational information, such as, by way of illustration, data and information relating to total users, the total number of users connected to the Internet using the Plugin, the total number of cameras connected, the version of the Plugin in use, the operating systems in use, and the number of unique connection days and last connected day. “Systems Data” does not include any data or information that identifies any particular licensee or end user of the Plugin or that can be used to identify any particular licensee or end user of the Plugin. You acknowledge and agree that all Systems Data is and shall at all times remain the sole and exclusive property of NaturalPoint. NaturalPoint may make any legal use of the Systems Data without notifying you or sharing such Systems Data with you. Specifically, by way of illustration and not by way of limitation, NaturalPoint may publish and share Systems Data with others to promote the Plugin and/or NaturalPoint’s other products or services, for evaluating the efficiency, utility and functionality of the Plugin and/or NaturalPoint’s other products or services, and for enhancing and improving the Plugin and/or NaturalPoint’s other products or services.
NaturalPoint does not have any support obligations with respect to the Plugin provided under this EULA.
You acknowledge that you may obtain information relating to the Plugin or NaturalPoint that has not been released to the public, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Plugin as licensed under this EULA.
THE PLUGIN IS PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPILIED. NATURALPOINT, ITS SUPPLIERS, AND THIRD PARTY LICENSORS DO NOT WARRANT THAT THE PLUGIN WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PLUGIN WILL BE UNINTERRUPTED OR ERROR FREE. NATURALPOINT, ITS AFFILIATES, AND THIRD PARTY LICENSORS DISCLAIM AND EXCLUDE ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR OTHERWISE ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
HIGH RISK APPLICATIONS
THE PLUGIN IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, MEDICAL OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE PLUGIN COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK APPLICATIONS"). NATURALPOINT AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK APPLICATIONS.
LIMITATION OF DAMAGES AND REMEDIES
IN NO EVENT SHALL NATURALPOINT OR ITS THIRD PARTY LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE PLUGIN. IN NO EVENT SHALL NATURALPOINT OR ITS THIRD PARTY LICENSORS BE LIABLE FOR LOSS, INACCURACY, INCOMPLETENESS, OR RELEASE OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEMS DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND REGARDLESS OF WHETHER NATURALPOINT KNEW OF OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF NATURALPOINT ARISING OUT OF THIS EULA, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED ONE HUNDRED DOLLARS (USD $100.00).
THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE ESSENTIAL AND THAT NATURALPOINT WOULD NOT PERMIT YOU TO USE THE PLUGIN ABSENT THE TERMS OF THIS SECTION. THIS SECTION AND THE DISCLAIMERS SET FORTH IN THIS EULA SHALL APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS EULA SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You acknowledge that the Plugin may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not and shall not authorize any third party to remove or export from the United States or allow the export or re-export of any part of the Plugin or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
NOTICE TO U.S. GOVERNMENT END USERS
The Plugin is a "Commercial Item," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. The Plugin is also provided subject to Federal Acquisition Regulation 52.227.19. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 252.227-7014, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to this EULA. The Plugin is provided only with “restricted rights” with only those rights as are granted to all other end user purchasers pursuant to the terms and conditions herein.
TERM, TERMINATION AND SURVIVAL
NaturalPoint may terminate this EULA immediately and without prior notice if you fail to comply with any term of this EULA. You may terminate this EULA at any time on written notice to NaturalPoint. In the event of termination of this EULA, all licenses granted hereunder shall automatically terminate and you must immediately cease use of the Plugin and destroy all copies of the Plugin. In addition you must remove all copies of the Plugin from the Hardware on which it is installed. The terms set forth in this Section and the Sections entitled Restrictions and Unauthorized Use, Intellectual Property, Hardware and Usage Data, Confidentiality, Warranty Disclaimer, High Risk Applications, Limitation of Damages and Remedies, and Export Compliance shall survive any termination of this EULA.
Unless Licensee is a natural person, Licensee consents to the public use of its personal and/or corporate name as a customer of NaturalPoint for marketing purposes, unless Licensee notifies NaturalPoint in writing that it withholds such consent.
This EULA is governed by the laws of the State of Oregon and the United States of America, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. This EULA is the entire agreement between us and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Plugin. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. This EULA may be modified only by a written agreement signed by authorized representatives of you and NaturalPoint. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise of such right. The parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this EULA, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form.
If you have any questions about this EULA, or if you want to contact NaturalPoint for any reason, please visit our websites for current contact information at: www.naturalpoint.com
Copyright 2021, NaturalPoint, Inc.