Please read the following agreement (the "License") carefully as it contains the legal terms and conditions that you must agree to when you license an SDK from Occipital. As used in this License, "we" or "Occipital" means Occipital, Inc. and its subsidiaries and affiliates, and "you" and "Licensee" mean the individual or entity using Occipital an Occipital SDK and subsidiaries or affiliates of that individual or entity.
Any user who wants to license an Occipital SDK must accept this License without change. By clicking the “I Agree” button on this page or by using the SDK you are agreeing to be bound by this Agreement on behalf of yourself or your employer or other entity, as applicable. You represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the SDK.
Subject to the terms of this License, Occipital grants you a non-exclusive, worldwide, license during the term of this Agreement to use, copy, encode, store, archive, distribute, transmit, modify, translate, publicly display and publicly perform, the Publicity Materials and Applications developed by you with the licensed Occipital SDK, and any updates, improvements or modifications thereto, for (a) Applications that rely on a Structure Sensor(s) to function, or (b) Non-Commercial Applications. All users of an Application who download the Application or any update thereto during the term of this Agreement shall have a perpetual, worldwide sublicense to the licensed SDK to the extent required to use such Application.
You agree that the licensed SDK contains valuable confidential information and you agree that you will not copy, modify, reverse engineer, decompile, disassemble, adapt, or create derivative works(other than Applications) of, the SDK or its contents. You will not distribute the SDK to any third party, or directly or indirectly (or allow any third party) to: (i) use the SDK to create (or facilitate the creation of) any product or service other than the Application; (ii) rent or lease the SDK; (iii) combine the SDK with other software such that you restrict or charge for access to the SDK; or (iv).
You will (i) use the licensed SDK only for the purposes of creating the Application, (ii) keep any unreleased updates to the licensed SDK confidential, (iii) integrate the latest released version of the licensed SDK into the Application upon any update on the App Store, (iv) follow all guidelines and steps in the Approval Process, including staying in compliance with the most recent Approval Process at the time of your Application submission (including submission of updates) to the App Store.
Disclaimers and Limitations
THE OCCIPITAL SDKS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS DESCRIBED BELOW, (1) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY ARISE FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, AND (2) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY CLAIM HEREUNDER EXCEED THE $1,000.
Licensee shall, at its own expense, indemnify, defend and hold harmless Occipital and any of its officers, directors, employees, representatives, licensees and agents from and against and in respect of any and all claims, liabilities, allegations, suits, actions, investigations, judgments, deficiencies, settlements, inquiries, demands or other proceedings of whatever nature or kind, whether formal or informal, brought against Occipital or any or its officers, directors, employees, representatives, licensees or agents, as well as from and against and in respect of any and all damages, liabilities, losses, costs, charges, fees and expenses, including without limitation reasonable legal fees and expenses, as and when incurred, relating to, based upon, incident to, arising from, or in connection with any claim or allegation that the Application infringes in any manner any intellectual property right or any other right of any third party, violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party. Licensee agrees that it may not, without Occipital’s prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of Occipital.
All notices, requests and other communications called for by this License shall be deemed to have been given immediately if (a) publicly published and displayed by Occipital on an Occipital Website, (b) sent by Occipital to you via electronic mail at the email address you used when you first accepted this License, or (c) sent by you via electronic mail to Occipital at email@example.com.
No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable by a court or other decision-making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provision in this Agreement will not be affected or impaired.
Neither party may assign this License, in whole or in part, without the other party’s written consent; provided, however, that either party may assign this Agreement without consent in connection with any merger, consolidation, any sale of all or substantially all of its assets or any other transaction in which more than 50% of its voting securities are transferred, or in Occipital’s case any sale of all or substantially all of its assets. Any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void.
This Agreement shall be governed by and construed using Colorado law. The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in Boulder County, Colorado.
Effectiveness, Amendment and Termination
This License will become effective upon your acceptance of its terms and will continue in effect until terminated by either you or Occipital. This Agreement may be updated by Occipital at any time and shall become binding upon Licensee immediately upon its public display on an Occipital Website. Upon such update, Licensee may be required to review and agree to the updated agreement in order for the License to remain in effect. This License may be terminated by either party, without liability, with 30 days prior notice. The End-User License, Restrictions and Disclaimers and Limitations of this License will survive the termination of this Agreement for any reason.