Last Updated: October 26, 2015
This STRUCTURE SDK DEVELOPER LICENSE AGREEMENT (the “Agreement”) is between you (“You” or “Your” or “Licensee”) and Occipital, Inc., a Delaware corporation (“Occipital”), with its principal place of business at 1801 13th St, Suite 220, Boulder, CO 80302 USA. This agreement is effective on October 26, 2015 for current licensees and upon acceptance for new licensees (the “Effective Date”).
WHEREAS, Occipital is the owner of certain 3D sensing technology, currently referred to as “Structure Sensor” and “Structure SDK”, and licenses such technology for use in various software applications; and
WHEREAS, the parties mutually desire to enter into a license agreement to allow You to incorporate Occipital’s Structure 3D sensing technology into Your own technology and to distribute the combined technology.
- “SDK” means the three-dimensional vision library and the application shell code provided by Occipital under the name “Structure SDK”.
- “Application” shall refer to each iOS-based application created by You that uses the SDK.
- “Licensee” means You and any company or entity in which You hold at least a 50% ownership, equity or financial interest.
- “Publicity Materials” means any media provided by Occipital to Licensee for the purpose of publicizing integration with the SDK.
- “Approval Process” means the process by which Licensee must submit Application to Occipital for review and approval prior to release, available at https://structure.io/support/structure-enabled-app-submission
- In order to use the SDK, You must first agree to this Agreement. You may not use the SDK if You do not accept this Agreement.
- You accept this Agreement by clicking the “I Agree” button or by using the SDK.
- If You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, 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 on behalf of Your employer or other entity.
- Subject to the terms of this Agreement, Occipital grants to Licensee a non-exclusive, worldwide, license (“License”) during the Term of this Agreement to use, copy, encode, store, archive, distribute, transmit, modify, translate, publicly display and publicly perform the SDK and the Publicity Materials, and any updates, improvements or modifications thereto, in whole or in part via any means, including without limitation, the mobile devices and the internet. All users of the Application who download the Application or any update thereto during the Term of this Agreement shall have a sublicense of this license for the purpose of using the Application, which sublicense shall be perpetual.
4. Confidentiality of Agreement; Public Announcements
- Neither party shall disclose the terms and conditions of this Agreement to any third party, except to its professional advisors who are bound by an obligation of confidentiality and non-disclosure.
- Neither party may make any public announcement or press release about the existence or terms of this Agreement without the other party’s prior written approval and consent.
- Licensee agrees that the SDK and all contents included therein provided by Occipital contain valuable confidential information and Licensee agrees that it will not modify, reverse engineer, decompile, or disassemble any part of the SDK or its contents.
- Except as expressly permitted by Occipital, Licensee shall 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; (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) copy, decompile, disassemble, reverse engineer, modify, adapt, or create derivative works of the SDK.
5. Licensee Responsibilities
- Use the SDK only for the purposes of the Application.
- Keep any unreleased updates to the SDK confidential and not share them with any third party without prior written consent from Occipital.
- Integrate the latest released version of the SDK into the Application upon any update on the App Store.
- 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.
6. Occipital Responsibilities
- Provide the SDK, and any updates, improvements or modifications thereto, to Licensee as a downloadable package.
7. Consent to Use of Data
- Licensee agrees that Occipital may retain and use asynchronously-logged Structure Sensor debugging and status data for the purpose of, but not limited to, ensuring functionality of the SDK and Structure Sensors.
- Occipital will not share such information in a form associated with Licensee or with the Application, unless Occipital (i) has consent from Licensee; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Occipital, its users or the public.
8. Term and Termination Clause
- This Agreement will become effective as of the Effective Date.
- Notwithstanding the foregoing, this Agreement may be terminated by either party with 30 days written notice.
- Any termination pursuant to this Section 9 will be without any liability or obligation of the terminating party, other than with respect to any breach of this Agreement prior to termination, and the parties will immediately cease representing to the public any affiliation between them in connection with the subject matter of this Agreement. The provisions of Sections 1, 2, 3, 6, 8, 9, 11 of this Agreement and this Section 9 will survive the expiration or termination of this Agreement for any reason.
9. Disclaimer of Warranties; Limitation of Liability
- The Structure SDK and the Application 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. Neither party shall have any responsibility or liability for the contents or results of the Structure SDK or the Application. These warranties are hereby excluded to the fullest extent permissible by law. Except for the indemnification obligations in Section 11, 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. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, each party’s liability is limited to the greatest extent permitted by law, or $100, whichever is less. The parties agree that the foregoing represents a fair allocation of the risk hereunder.
- 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.
11. Updates to this Agreement
This Agreement may be updated by Occipital at any time. Upon such update, Licensee will be required to review and agree to the updated agreement in order for the License to remain in effect.
12. Notice; Miscellaneous
- All notices, requests and other communications called for by this Agreement shall be deemed to have been given immediately if made by electronic mail, if to You at the email address you used when you first purchased your Structure Sensor and if to Occipital at firstname.lastname@example.org, or to such other address as either party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the party to which notice is provided.
- 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. Neither party may assign this Agreement, 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.
- 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.
- The section headings used herein are for convenience only and shall not be given any legal import.
(10/26/2015) Updated Definitions and Licensee Responsibilities to reference the Approval Process web URL.