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SIEGEVR END-USER LICENSE AGREEMENT
Updated March 21, 2018
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE:
This End-User License Agreement (“Agreement”) is a legal agreement between you (Licensee or you) and Sixense Enterprises Inc. (collectively referred to as “Sixense”, “Licensor”, “us” or “we”) for the Software and the associated media.
IMPORTANT NOTICE TO ALL USERS:
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT, WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT LICENSE THE SIEGEVR SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION OR DOWNLOAD PROCESS OR CEASE USE OF THE SIEGEVR SOFTWARE.
If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement and, in such event, “you” and “Licensee” will refer to that company or other legal entity.
You should print a copy of this Agreement for future reference.
1.0 Definitions:
1.1 “Intellectual Property” means any patent, trademark, trade secret, copyright, including those at common law, right of privacy/publicity or any other proprietary right.
1.2 “Software” means the SiegeVR software and any third-party software embodied therein, including all documentation and Updates.
1.3 “Updates” means any release of bug fixes, improvements and new features that may be provided by Sixense from time to time.
2.0 License Grants: Subject to Licensee's full compliance with the terms of this Agreement, Sixense grants Licensee a limited, non-exclusive, revocable, non-transferable, non-sub-licenseable, non-assignable, world-wide license to download, install, and use the Software for the sole purpose of Licensee's personal use. Licensee agrees that persons not bound by this Agreement shall not have access to the Software, and Licensee shall be responsible for all third parties to which it grants access.
3.0 License Fees: Licensee agrees to pay Sixense the fees as specified within the digital store through which Sixense provides the Software. Fees paid are non-refundable.
4.0 Limitations:
4.1 Except as otherwise stated in this Agreement, in no event shall Licensee (a) sell, license or distribute the Software or access to the Software, or any portion thereof; (b) modify, copy, adapt, translate, transfer, or prepare derivative works based on the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software; (d) use the Software in a way that adversely affects or impacts its functionality; (e) use the Software for the benefit of a third party; or (f) use the Software to implement or enhance a product or service that is competitive with any portion of the Software.
4.2 Licensee shall not and shall not permit any third party to: (a) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (b) use the Software to store or transmit any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt the Software or use of or access to the Software; (c) attempt to gain unauthorized access to the Software or its related systems or networks or otherwise circumvent any security measures; (d) interfere with or disrupt the servers or networks connected to the Software or disobey any requirements, procedures, policies or regulations of networks connected to the Software; (e) use any “deep-link”, “page-scrape”, “robot”, “spider”, data mining, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Software; (f) access or use the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (g) use the Software for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data.
4.3 In addition, Licensee may not use the Software in such a way that: (a) creates, or purports to create, obligations for Sixense; or (b) grants, or purports to grant, to any third party any rights or immunities under Sixense’s Intellectual Property rights, including, but not limited to, requiring any portion of the Software to be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributed at no charge.
5.0 Ownership Rights: Sixense shall, subject to the license grants herein, own all right, title and interest in and to the Software, proprietary algorithms, and any modifications, enhancements or derivatives thereof, and the Sixense trademarks and trade names. Sixense reserves all rights not expressly provided to Licensee. Licensee shall not remove, obscure, or alter Sixense’s copyright notices, trademark notices, or other proprietary rights notices affixed to or contained within the Software. Except for the licenses contained herein, nothing in this Agreement shall convey any other right or license by implication, estoppel, or otherwise in any Intellectual Property rights of Sixense.
6.0 Representations and Warranties: Licensee represents and warrants that: (a) Licensee shall use the Software in compliance with all applicable laws; (b) Licensee shall not (and shall not permit any third party to), directly or indirectly, use any data, content, software or any material on or through the Software that infringes any Intellectual Property right, or other right of any other person or entity or otherwise breaches any third party contract or obligation; (c) Licensee has full authority to enter into this Agreement.
7.0 Data Collection. You agree that we may collect and process non-personally identifiable information about you and your use of our Software for internal business purposes, which may include sharing such data with our third-party licensors.
8.0 Termination: Licensee’s rights under this Agreement shall terminate for cause upon notice to Licensee of a breach of the terms of this Agreement. Upon the termination of the Agreement, all licenses herein shall cease and Licensee shall cease all use of the Software and destroy all copies thereof. All terms of this Agreement that, by their nature, are intended to survive termination or expiration will survive (including, without limitation, Section 5 (Ownership Rights), Section 9 (Warranty Disclaimer), Section 10 (Liability Limitation), Section 11 (Indemnification), Section 12 (Confidentiality), and the general provisions Sections 13 through 18.
9.0 WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND/OR DOCUMENTATION IS AT LICENSEE'S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, FUNCTIONALITY, ACCURACY AND EFFORT IS WITH LICENSEE. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SIXENSE HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, TITLE, PERFORMANCE, MERCHANTABILITY, INTEROPERABILITY, NON-INFRINGEMENT, DESIGN, AVAILABILITY, EFFECT ON DEVICES, EFFECT ON BUSINESS, DATA RETENTION, ACCURACY OR SECURITY OF THE INFORMATION OR DATA PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR DOCUMENTATION, OR THE EFFECT THAT INFORMATION WILL HAVE ON THIRD PARTIES. THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF THIS AGREEMENT.
10.0 LIABILITY LIMITATION: IN NO EVENT WILL SIXENSE HAVE LIABILITY TO LICENSEE OR ANY OTHER THIRD PARTY FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. ADDITIONALLY, SIXENSE’S TOTAL CUMULATIVE LIABILITY TO LICENSEE UNDER THIS AGREEMENT, OR ARISING FROM THE LICENSE GRANTED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNTS PAID BY LICENSEE IN THE THREE (3) MONTHS IMMEDIATELY PRECEEDING THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11.0 Indemnification: Licensee agrees to indemnify, defend, and hold harmless Sixense (including Sixense’s affiliates, successors, shareholders, officers, directors, employees, contractors, consultants, agents, and representatives) against and from any and all actions, causes of action, claims, demands, costs, judgments, liabilities, expenses (including reasonable attorneys' fees and court costs) and damages arising out of or in connection with any and all third party claims relating to Licensee's (and any third parties associated with Licensee) activities pursuant to this Agreement, including but not limited to claims related to (a) any actual or alleged violation or non-compliance with any applicable law or regulations or (b) any actual or alleged breach of this Agreement.
12.0 Confidentiality:
12.1 Any information disclosed by Sixense to Licensee in connection with this Agreement, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” Licensee shall maintain all Confidential Information in strict confidence and shall only disclose such Confidential Information to those of its agents, employees or contractors who have a need to know such Confidential Information in furtherance of the performance of obligations under this Agreement and who are bound to a written confidentiality agreement. Licensee shall use all reasonable means necessary to protect Confidential Information. Licensee acknowledges that any breach or violation of this Section will cause irreparable harm and that damages are not an adequate remedy. Licensee therefore agrees that Sixense shall be entitled to seek and obtain a court order enjoining continuance of any such violation, in addition to any monetary damages or any other remedies at law or in equity. This Confidentiality Section is not intended to (and does not) supersede any obligations assumed by either Party (whether now or in the future) under a separately signed nondisclosure or confidentiality agreement with the other Party. Upon termination of this Agreement or upon request of Sixense, Licensee will promptly return or destroy, at the option of Sixense, (and provide certification thereof) all Confidential Information of Sixense, and all documents and media containing such Confidential Information and any and all copies thereof.
12.2 Notwithstanding the foregoing, Licensee shall not have confidentiality obligations with respect to information that: (i) is or has become publicly available without restriction through no fault of Licensee or its employees or agents; (ii) was rightfully in the possession of the Licensee without restriction prior to its disclosure by Sixense; (iii) becomes available to Licensee on a non-confidential basis from another source, provided that such source is not and was not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by contractual, legal or fiduciary obligation, or (iv) is independently developed by Licensee, without use of the Confidential Information, which is contemporaneously documented in writing. Further, Licensee may disclose Confidential Information as required to be disclosed by court order or law. If Licensee receives a demand in a legal proceeding that would require the Confidential Information of Sixense to be disclosed, Licensee shall immediately notify Sixense of the demand and reasonably assist Sixense in obtaining a protective order or other relief before such disclosure. Licensee’s obligations with respect to Confidential Information shall survive the termination or expiration of this Agreement for any reason.
13.0 Epic Disclaimers and Limitations of Liability.
13.1 The Software includes the Unreal® Engine code and other code, materials, and information (the “Epic Materials”) from Epic Games, Inc. (“Epic”). All Epic Materials are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Sixense, Epic, and Epic’s affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Sixense, Epic, and Epic’s affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Software, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer has approved or will approve this Software, or will not revoke approval of this Software for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed by Sixense and Epic. Sixense, Epic, and Epic’s affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
13.2 To the maximum extent permitted by applicable law, neither Sixense, Epic, Epic’s licensors, nor its or their affiliates, nor any of Sixense’s or Epic’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. In no event will Sixense, Epic, Epic’s licensors, nor its or their affiliates, nor any of Sixense’s or Epic’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Sixense’s, Epic’s, or Epic’s affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Sixense, Epic or Epic’s affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
13.3 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Sixense, Epic, Epic’s licensors, its and their affiliates, and any of Sixense’s or Epic’s service providers shall be limited to the full extent permitted by law.
14.0 Governing Law: This Agreement shall be governed by the laws of California, USA without regard to its conflict of law rules and the parties agree to the exclusive jurisdiction of the courts located in Santa Clara County.
15.0 Assignment: Licensee may not assign, delegate, or transfer its rights and obligations under this Agreement without the express prior written consent of Sixense. This Agreement shall bind and benefit permitted successors and permitted assigns.
16.0 Relationship of the Parties. The parties are independent contractors. The terms of this Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the terms of this Agreement.
17.0 Severability. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrators to be contrary to law, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
18.0 Entire Agreement. This Agreement is fully integrated and constitutes the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Updated March 21, 2018
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE:
This End-User License Agreement (“Agreement”) is a legal agreement between you (Licensee or you) and Sixense Enterprises Inc. (collectively referred to as “Sixense”, “Licensor”, “us” or “we”) for the Software and the associated media.
IMPORTANT NOTICE TO ALL USERS:
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT, WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT LICENSE THE SIEGEVR SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION OR DOWNLOAD PROCESS OR CEASE USE OF THE SIEGEVR SOFTWARE.
If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement and, in such event, “you” and “Licensee” will refer to that company or other legal entity.
You should print a copy of this Agreement for future reference.
1.0 Definitions:
1.1 “Intellectual Property” means any patent, trademark, trade secret, copyright, including those at common law, right of privacy/publicity or any other proprietary right.
1.2 “Software” means the SiegeVR software and any third-party software embodied therein, including all documentation and Updates.
1.3 “Updates” means any release of bug fixes, improvements and new features that may be provided by Sixense from time to time.
2.0 License Grants: Subject to Licensee's full compliance with the terms of this Agreement, Sixense grants Licensee a limited, non-exclusive, revocable, non-transferable, non-sub-licenseable, non-assignable, world-wide license to download, install, and use the Software for the sole purpose of Licensee's personal use. Licensee agrees that persons not bound by this Agreement shall not have access to the Software, and Licensee shall be responsible for all third parties to which it grants access.
3.0 License Fees: Licensee agrees to pay Sixense the fees as specified within the digital store through which Sixense provides the Software. Fees paid are non-refundable.
4.0 Limitations:
4.1 Except as otherwise stated in this Agreement, in no event shall Licensee (a) sell, license or distribute the Software or access to the Software, or any portion thereof; (b) modify, copy, adapt, translate, transfer, or prepare derivative works based on the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software; (d) use the Software in a way that adversely affects or impacts its functionality; (e) use the Software for the benefit of a third party; or (f) use the Software to implement or enhance a product or service that is competitive with any portion of the Software.
4.2 Licensee shall not and shall not permit any third party to: (a) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (b) use the Software to store or transmit any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt the Software or use of or access to the Software; (c) attempt to gain unauthorized access to the Software or its related systems or networks or otherwise circumvent any security measures; (d) interfere with or disrupt the servers or networks connected to the Software or disobey any requirements, procedures, policies or regulations of networks connected to the Software; (e) use any “deep-link”, “page-scrape”, “robot”, “spider”, data mining, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Software; (f) access or use the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (g) use the Software for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data.
4.3 In addition, Licensee may not use the Software in such a way that: (a) creates, or purports to create, obligations for Sixense; or (b) grants, or purports to grant, to any third party any rights or immunities under Sixense’s Intellectual Property rights, including, but not limited to, requiring any portion of the Software to be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributed at no charge.
5.0 Ownership Rights: Sixense shall, subject to the license grants herein, own all right, title and interest in and to the Software, proprietary algorithms, and any modifications, enhancements or derivatives thereof, and the Sixense trademarks and trade names. Sixense reserves all rights not expressly provided to Licensee. Licensee shall not remove, obscure, or alter Sixense’s copyright notices, trademark notices, or other proprietary rights notices affixed to or contained within the Software. Except for the licenses contained herein, nothing in this Agreement shall convey any other right or license by implication, estoppel, or otherwise in any Intellectual Property rights of Sixense.
6.0 Representations and Warranties: Licensee represents and warrants that: (a) Licensee shall use the Software in compliance with all applicable laws; (b) Licensee shall not (and shall not permit any third party to), directly or indirectly, use any data, content, software or any material on or through the Software that infringes any Intellectual Property right, or other right of any other person or entity or otherwise breaches any third party contract or obligation; (c) Licensee has full authority to enter into this Agreement.
7.0 Data Collection. You agree that we may collect and process non-personally identifiable information about you and your use of our Software for internal business purposes, which may include sharing such data with our third-party licensors.
8.0 Termination: Licensee’s rights under this Agreement shall terminate for cause upon notice to Licensee of a breach of the terms of this Agreement. Upon the termination of the Agreement, all licenses herein shall cease and Licensee shall cease all use of the Software and destroy all copies thereof. All terms of this Agreement that, by their nature, are intended to survive termination or expiration will survive (including, without limitation, Section 5 (Ownership Rights), Section 9 (Warranty Disclaimer), Section 10 (Liability Limitation), Section 11 (Indemnification), Section 12 (Confidentiality), and the general provisions Sections 13 through 18.
9.0 WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND/OR DOCUMENTATION IS AT LICENSEE'S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, FUNCTIONALITY, ACCURACY AND EFFORT IS WITH LICENSEE. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SIXENSE HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, TITLE, PERFORMANCE, MERCHANTABILITY, INTEROPERABILITY, NON-INFRINGEMENT, DESIGN, AVAILABILITY, EFFECT ON DEVICES, EFFECT ON BUSINESS, DATA RETENTION, ACCURACY OR SECURITY OF THE INFORMATION OR DATA PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR DOCUMENTATION, OR THE EFFECT THAT INFORMATION WILL HAVE ON THIRD PARTIES. THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF THIS AGREEMENT.
10.0 LIABILITY LIMITATION: IN NO EVENT WILL SIXENSE HAVE LIABILITY TO LICENSEE OR ANY OTHER THIRD PARTY FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. ADDITIONALLY, SIXENSE’S TOTAL CUMULATIVE LIABILITY TO LICENSEE UNDER THIS AGREEMENT, OR ARISING FROM THE LICENSE GRANTED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNTS PAID BY LICENSEE IN THE THREE (3) MONTHS IMMEDIATELY PRECEEDING THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11.0 Indemnification: Licensee agrees to indemnify, defend, and hold harmless Sixense (including Sixense’s affiliates, successors, shareholders, officers, directors, employees, contractors, consultants, agents, and representatives) against and from any and all actions, causes of action, claims, demands, costs, judgments, liabilities, expenses (including reasonable attorneys' fees and court costs) and damages arising out of or in connection with any and all third party claims relating to Licensee's (and any third parties associated with Licensee) activities pursuant to this Agreement, including but not limited to claims related to (a) any actual or alleged violation or non-compliance with any applicable law or regulations or (b) any actual or alleged breach of this Agreement.
12.0 Confidentiality:
12.1 Any information disclosed by Sixense to Licensee in connection with this Agreement, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” Licensee shall maintain all Confidential Information in strict confidence and shall only disclose such Confidential Information to those of its agents, employees or contractors who have a need to know such Confidential Information in furtherance of the performance of obligations under this Agreement and who are bound to a written confidentiality agreement. Licensee shall use all reasonable means necessary to protect Confidential Information. Licensee acknowledges that any breach or violation of this Section will cause irreparable harm and that damages are not an adequate remedy. Licensee therefore agrees that Sixense shall be entitled to seek and obtain a court order enjoining continuance of any such violation, in addition to any monetary damages or any other remedies at law or in equity. This Confidentiality Section is not intended to (and does not) supersede any obligations assumed by either Party (whether now or in the future) under a separately signed nondisclosure or confidentiality agreement with the other Party. Upon termination of this Agreement or upon request of Sixense, Licensee will promptly return or destroy, at the option of Sixense, (and provide certification thereof) all Confidential Information of Sixense, and all documents and media containing such Confidential Information and any and all copies thereof.
12.2 Notwithstanding the foregoing, Licensee shall not have confidentiality obligations with respect to information that: (i) is or has become publicly available without restriction through no fault of Licensee or its employees or agents; (ii) was rightfully in the possession of the Licensee without restriction prior to its disclosure by Sixense; (iii) becomes available to Licensee on a non-confidential basis from another source, provided that such source is not and was not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by contractual, legal or fiduciary obligation, or (iv) is independently developed by Licensee, without use of the Confidential Information, which is contemporaneously documented in writing. Further, Licensee may disclose Confidential Information as required to be disclosed by court order or law. If Licensee receives a demand in a legal proceeding that would require the Confidential Information of Sixense to be disclosed, Licensee shall immediately notify Sixense of the demand and reasonably assist Sixense in obtaining a protective order or other relief before such disclosure. Licensee’s obligations with respect to Confidential Information shall survive the termination or expiration of this Agreement for any reason.
13.0 Epic Disclaimers and Limitations of Liability.
13.1 The Software includes the Unreal® Engine code and other code, materials, and information (the “Epic Materials”) from Epic Games, Inc. (“Epic”). All Epic Materials are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Sixense, Epic, and Epic’s affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Sixense, Epic, and Epic’s affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Software, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer has approved or will approve this Software, or will not revoke approval of this Software for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed by Sixense and Epic. Sixense, Epic, and Epic’s affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
13.2 To the maximum extent permitted by applicable law, neither Sixense, Epic, Epic’s licensors, nor its or their affiliates, nor any of Sixense’s or Epic’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. In no event will Sixense, Epic, Epic’s licensors, nor its or their affiliates, nor any of Sixense’s or Epic’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Sixense’s, Epic’s, or Epic’s affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Sixense, Epic or Epic’s affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
13.3 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Sixense, Epic, Epic’s licensors, its and their affiliates, and any of Sixense’s or Epic’s service providers shall be limited to the full extent permitted by law.
14.0 Governing Law: This Agreement shall be governed by the laws of California, USA without regard to its conflict of law rules and the parties agree to the exclusive jurisdiction of the courts located in Santa Clara County.
15.0 Assignment: Licensee may not assign, delegate, or transfer its rights and obligations under this Agreement without the express prior written consent of Sixense. This Agreement shall bind and benefit permitted successors and permitted assigns.
16.0 Relationship of the Parties. The parties are independent contractors. The terms of this Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the terms of this Agreement.
17.0 Severability. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrators to be contrary to law, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
18.0 Entire Agreement. This Agreement is fully integrated and constitutes the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.