IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (vitruviuskinect.com). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND LIGHTBUZZ INC. (“LightBuzz” or “Licensor”). BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY LIGHTBUZZ THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
Content Management System and/or .NET/WinRT/Unity3D component vendors are not allowed to use the Software (as defined below) without the express permission of LightBuzz. If You or the company You represent is a Content Management System or .NET/WinRT/Unity3D component vendor, You may not purchase a license for or use the Software unless You contact LightBuzz directly and obtain permission.
This License does not grant You a license or any rights to the “Kinect for Windows Software Development Kit version 2.0” and You must contact Microsoft directly to obtain such a license. Any and all rights in the Software not expressly granted to You as part of the License hereunder are reserved in all respects by LightBuzz.
This is a license agreement and not an agreement for sale.
1. Software License
1.1 License Grant. Subject to the terms and conditions set forth in this Agreement, LightBuzz hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, sublicenseable (solely as set forth in Section 1.3), non-exclusive license (the “License”) to use the LightBuzz computer software identified as “Vitruvius” and any updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) solely as specified in this Agreement. You are granted either a Trial Developer License pursuant to Section 1.4, or an Academic Developer License pursuant to Section 1.5, or a Premium Developer License with Updates and Priority Support pursuant to Section 1.6, or a Platinum Developer License with Updates, Priority Support and Consulting pursuant to Section 1.7. Which version of the License applies (i.e., Trial Developer License, Academic Developer License, Premium Developer License with Updates and Priority Support, or Platinum Developer License with Updates, Priority Support and Consulting) is determined at the time of the License purchase.
For purposes of this Agreement:
“Integrated Products” means Your proprietary software applications which: (i) are developed by Your Licensed Developers; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Programs; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Programs or any components of the Programs.
“Licensed Developers” means Your employees or third-party contractors authorized to develop software specifically for You using the Software in accordance with this Agreement.
1.2 Scope of Use. The Software is licensed, not sold, on a per-seat basis. The number of Licensed Developers using the Software must correspond to the maximum number of License seats You have purchased from LightBuzz hereunder. This means that, at any given time, the number of Licensed Developers cannot exceed the number of License seats that You have purchased from LightBuzz and for which You have paid LightBuzz all applicable License Fees pursuant to this Agreement. The Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk or other storage device). Your Licensed Developers may install the Software on multiple machines, so long as the Software is not being used simultaneously for development purposes at any given time by more Licensed Developers than You have License seats. You are not limited by the number of License seats with respect to how many individuals within Your organization may access and use the Software for testing and building purposes. You may also embed copies of the Programs in Your Integrated Products that You license and distribute to Your own end-user licensees, including but not limited to, Your employees (“Authorized End-Users”), solely in accordance with the requirements set forth in Section 1.3 below.
1.3 License for Redistribution.
1.3.2 The foregoing license to redistribute the Programs is conditioned upon the following:
18.104.22.168 You hereby acknowledge and agree that You are solely responsible for Your Authorized End-User’s use of the Programs in accordance with the limitations set forth in subsection 1.3.1 (iii) and liable for such Authorized End-User’s breach of such limitations
22.214.171.124 You must ensure that the Software is not distributed in any form that allows it to be reused by any application other than Your Integrated Product. For use of the Software in design-time (i.e. within a development environment such as Microsoft Visual Studio) Your Authorized End-Users need to purchase Developer Licenses from LightBuzz.
126.96.36.199 You must prohibit Your Authorized End-Users from using the Software independently from Your Integrated Products, or from decompiling, reverse engineering or otherwise seeking to discover the source code of the Programs.
188.8.131.52 You must include a valid copyright message in Your Integrated Products in a location viewable by Authorized End-Users (e.g. “About” box) that will serve to protect LightBuzz’s copyright and other intellectual property rights in the Software.
184.108.40.206 You are not allowed to, and are expressly prohibited from granting Your Authorized End-Users any right to further sublicense the Software.
1.4 Trial Developer License
1.4.1 License Grant. If You download the free Trial Developer License, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a license for evaluation purposes only. You are authorized to install, copy, and use the Software for the sole purpose of testing its functionality. You are not allowed to integrate it in end products or use it for any commercial or productive purpose. The term of the Trial Developer License shall be thirty (30) days from the date on which You purchase the License, during which, You will receive support, as described in further detail below.
1.4.2 Support. As part of Your Trial Developer License, You are entitled to the “Trial” support package.
220.127.116.11 Support Package Fair Usage Policy. LightBuzz may limit or terminate Your access to any or all of the support services available under the Trial support package if Your use of the support services is determined by LightBuzz, in its sole and reasonable discretion, to be excessive.
18.104.22.168 In no event will LightBuzz provide support of any kind to Your Authorized End-Users.
1.4.3 Updates. You are not eligible to receive any updates for the Software.
1.4.4 THE TRIAL VERSION OF THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. LIGHTBUZZ GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, LIGHTBUZZ EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
1.5 Academic Developer License
1.5.1 License Grant. If You purchase an Academic Developer License, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, royalty-free, sublicenseable (solely as set forth in Section 1.3), non-exclusive license to install, use, include with Integrated Products and redistribute the Programs in executable, object code form only.
1.6 Premium Developer License with Updates and Priority Support.
1.6.1 License Grant. If You purchase a Premium Developer License with Updates and Priority Support, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, royalty-free, sublicenseable (solely as set forth in Section 1.3), non-exclusive license to install, use, include with Integrated Products and redistribute the Programs in executable, object code form only. In addition, You will receive minor and major updates for the Software, and the “Priority” support package, each as described in further detail below.
1.6.2 Priority Support Package. As part of Your Premium Developer License, You are entitled to the “Priority” support package, from the date on which You purchased the License to the Software and subject to the limitations and restrictions described in the following Fair Usage Policy.
22.214.171.124 Support Package Fair Usage Policy. LightBuzz may limit or terminate Your access to any or all of the support services available under the “Priority” support package if Your use of the support services is determined by LightBuzz, in its sole and reasonable discretion, to be excessive.
126.96.36.199 In no event will LightBuzz provide support of any kind to Your Authorized End-Users.
1.6.3 Updates. You are eligible to receive all major updates and minor updates for the version of the Software that You license hereunder. Updates replace and/or supplement (and may disable) the version of the Software that formed the basis for Your eligibility for the update. You may use the resulting updated Software only in accordance with the terms of this License.
1.7 Platinum Developer License with Updates, Priority Support and Consulting
1.7.1 License Grant. If You purchase a Platinum Developer License with Updates, Priority Support and Consulting, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, royalty-free, sublicenseable (solely as set forth in Section 1.3), non-exclusive license to install, use, include with Integrated Products and redistribute the Programs in executable, object code form only. In addition, You will receive minor and major updates for the Software, the “Priority” support package, as well as one hour of technical consulting, each as described in further detail below.
1.7.2 Priority Support Package. As part of Your Platinum Developer License, You are entitled to the “Priority” support package, from the date on which You purchased the License to the Software and subject to the limitations and restrictions described in the following Fair Usage Policy.
188.8.131.52 Support Package Fair Usage Policy. LightBuzz may limit or terminate Your access to any or all of the support services available under the “Priority” support package if Your use of the support services is determined by LightBuzz, in its sole and reasonable discretion, to be excessive.
184.108.40.206 In no event will LightBuzz provide support of any kind to Your Authorized End-Users.
1.7.3 Updates. You are eligible to receive all major updates and minor updates for the version of the Software that You license hereunder. Updates replace and/or supplement (and may disable) the version of the Software that formed the basis for Your eligibility for the update. You may use the resulting updated Software only in accordance with the terms of this License.
1.7.4 Consulting. You are eligible to receive one hour of online consulting with Evangelos Pterneas. The date and time of the consulting session is determined over email or phone.
2. License Limitations
2.1 You are not allowed to use, copy, modify, distribute, resell, transfer, rent, lease, or sublicense the Software and Your associated rights except as expressly permitted in this Agreement. Under no circumstances shall You grant further redistribution or sublicense rights to Authorized End-Users or redistribute any source code of the Programs to any Authorized End-User or third party.
2.2 You may not use the LightBuzz product names, logos or trademarks to market Your Integrated Product.
2.3 Except to the limited extent as is permitted by law notwithstanding contractual prohibition, You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Programs that is provided to You in object code form only.
LightBuzz shall make available for download to Licensee a master copy of the Software.
4. Term and Termination
This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to LightBuzz’s other rights or remedies, LightBuzz shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from LightBuzz. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use and distribution of the Programs; provided, however, that any sublicenses granted to Your Authorized End-Users in accordance with Section 1.3 shall survive such termination. You must also destroy (i) all copies of the Programs not integrated into a live, functioning instance(s) of Your Integrated Product(s) already installed, implemented and deployed for Your Authorized End-User(s), and (ii) any product and company logos provided by LightBuzz in connection with this Agreement.
5. Product Discontinuance
LightBuzz reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product or solely as a component, at any time. However, LightBuzz is obligated to provide support in accordance with the terms set forth in this Agreement for discontinued Software or components for a period of one (1) year after the date of discontinuance.
6. Intellectual Property
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, 3D models, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of LightBuzz that are used in connection with the Software are and shall at all times remain exclusively owned by LightBuzz and its licensors. You are allowed to modify or distribute the assets “as-is” within software products developed for Your end-users. You, therefore, accept that more customers of LightBuzz may use the same assets for commercial purposes.
7. Limited Warranty
Except as specified in Section 1.4.4 (Trial License), LightBuzz warrants solely that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which You purchase the License for the Software. LightBuzz does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee’s failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than LightBuzz. In the event of a breach of warranty, Licensee’s sole and exclusive remedy and LightBuzz’s sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and LightBuzz’s maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if LightBuzz receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, LIGHTBUZZ DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will LightBuzz be liable for any indirect, special, incidental, or consequential damages arising out of this Agreement, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, LightBuzz’s entire liability under any provision of this Agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to LightBuzz for the Software giving rise to such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. LightBuzz is not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software and/or any material linked through such content. Any data included in the Software upon shipment from LightBuzz is for testing use only and LightBuzz hereby disclaims any and all liability arising therefrom. The extent of LightBuzz’s liability for the limited warranty section shall be as set forth therein.
You agree to indemnify, hold harmless, and defend LightBuzz and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney’s fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (i) Your use of the Software in violation of this Agreement, (ii) the use or distribution of Your Integrated Product or (iii) Your modification of the Program’s source code.
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that: (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Programs as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without LightBuzz’s prior written permission. Each party’s obligations under this Section shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that (i) obligations with respect to source code shall survive in perpetuity and (ii) trade secrets shall be maintained as such until they fall into the public domain.
11. Governing Law
This License will be governed by the law of New York, USA, without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state court or competent jurisdiction in New York, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
12. Entire Agreement
This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties. In cases where this license is being obtained through an approved third party, these terms shall supersede any third party license or purchase agreement.
13. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without LightBuzz’s prior written consent.
Any provisions of the Agreement containing license restrictions, including but not limited to those related to the Program warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
16. Force Majeure
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
17. Reports and Audit Rights.
Licensee shall grant LightBuzz audit rights against Licensee twice within a calendar three hundred and sixty-five (365) day period upon two weeks written notice, to verify Licensee’s compliance with this Agreement. Licensee shall keep adequate records to verify Licensee’s compliance with this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN LIGHTBUZZ AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.