READ CAREFULLY THIS END USER LICENSE AGREEMENT (EULA), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN UMBRA SOFTWARE OY, WITH AN ADDRESS AT KALEVANKATU 30, 00100 HELSINKI, FINLAND (UMBRA), AND YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT (YOU), REGARDING ACCESS AND USE OF THE SOFTWARE DESCRIBED BELOW. THE SOFTWARE IS AVAILABLE ONLY TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD, WHO ARE ACTING FOR THEMSELVES OR IN THEIR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF A BUSINESS ENTITY OR OTHER ORGANIZATION. UMBRA MAY REFUSE TO OFFER THE SOFTWARE TO ANY PERSON OR ENTITY AND MAY CHANGE ITS ELIGIBILITY CRITERIA, AT ANY TIME, IN ITS SOLE DISCRETION. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS, ON BEHALF OF YOURSELF OR ON BEHALF OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION IN YOUR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION. BY REGISTERING TO THE SERVICE, CREATING AN ACCOUNT OR BY ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE IN ANY MANNER (ACCEPTANCE), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION YOU REPRESENT AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. ANY PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO DO SO, YOU SHOULD NOT REGISTER TO THE SERVICE AND SHOULD DISCONTINUE INSTALLATION AND YOU ARE PROHIBITED FROM ACCESSING, downloading, INSTALLING OR USING THE SOFTWARE.
THIS EULA CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS, AND PROHIBITS CLASS ACTION CLAIMS. IT AFFECTS HOW DISPUTES BETWEEN YOU AND UMBRA OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT AND UMBRA ARE RESOLVED. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS EULA AS SET OUT ABOVE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
Contract means the separate written agreement between Customer and Umbra (or its affiliate or authorized distributor) regarding the Service, which includes other terms and conditions applicable to your access and use of the Software and other Umbra Properties that Customer has obligated you to comply with.
Customer means you or your employer (or other entity) for which you obtained Software, and for whose exclusive benefit are you permitted to use the Software and access the Service.
Platform means the technology platform developed and/or used by Umbra or its affiliate in providing the Service (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and all corrections, improvements and extensions thereto. For clarity, the Platform includes the Software.
Results means the optimized database and other work products that are generated by Umbra and displayed, delivered or otherwise made available to Customer or its users as a result of using the Service.
Service means the Umbra Cloud, Umbra's application that automatically optimizes any 3D content – allowing users to choose the outcome between graphical fidelity and real-time performance – to be displayed on any device, which is made available for access and use by Customer via the Contract, as such application may be hosted in a cloud environment and provided on a software-as-a-service basis from time to time by Umbra.
Software means software, applications, dashboards, debuggers, viewers, plugins (including, but not limited to, the Unity plugin and the Revit plugin), APIs, software development toolkits and other computer programs and related documentation that are made available to you by Umbra in connection with accessing or using the Service, as may be updated by Umbra from time to time in its sole discretion. Any and all such updates to Software provided by or on behalf of Umbra to you shall be deemed to be included in Software, and you shall begin using such updated version promptly. Software is licensed, not sold, and title thereto shall not transfer to you or Customer. Software may contain code or require license keys or devices that detect or prevent unauthorized use of, or disable, the Software. The Umbra viewer is a tool for users to visualize their content after it has been optimized by the Service. The Umbra plugins enable quick use of the Service with third party platforms such as Unity and Revit, and if a plugin is not available for a particular third party platform, then you may use the Umbra SDK, that includes the Umbra API, to enable use of the Service with such platform.
Umbra Properties means the Software, Platform, Service, access credentials, documentation and Confidential Information provided by or on behalf of Umbra.
Any other capitalized terms used herein without definition shall have the same meaning as defined in the Contract.
Subject to the terms of this EULA and the Contract, Umbra grants you a non-exclusive, non-transferable, non-sublicenseable right and license to: download, install, access and use the Software that you have chosen to access and Umbra agrees to provide (in executable format only) only in connection with your access and use of the Service through a web-based interface under the Customer's account. The Software and other Umbra Properties may be used only in accordance with the documentation and in unmodified form, and solely for Customer's internal business purposes. Your access and use of the Software and other Umbra Properties shall comply with all other conditions set forth in the Contract (such as, for example, restrictions regarding the number or identity of authorized users, number of concurrent streams that may be streamed from the Service or capacity limits). Customer shall use commercially reasonable efforts to ensure that each of its authorized users comply with all applicable obligations and restrictions imposed on Customer under this EULA. Any breach of any such obligations and restrictions by any such authorized users shall be deemed a breach by Customer of its obligations under this EULA, and Customer shall be responsible and liable for any breach of any such obligations by any such authorized users.
Scope. The term Confidential Information means all trade secrets, know-how, inventions, software and other financial, business or technical information disclosed by or for Umbra in relation to this EULA or the Contract. The restrictions on use and disclosure of Confidential Information will not apply to any information you can demonstrate is (a) already rightfully known by you without restriction, (b) rightfully furnished to you without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this EULA or (d) independently developed by you without reliance on such information. For clarity, the Umbra Properties, pricing information and all performance and benchmarking results related to the Platform, Software or Service are the Confidential Information of Umbra.
Confidentiality. Except for the specific rights granted by this EULA or the Contract, and except for disclosures that are made to comply with any subpoena or other legal, regulatory, law enforcement or similar requirement or investigation, you agree not to access, reproduce, use or disclose any Confidential Information without Umbra's written consent, and you agree to use commercially reasonable efforts to protect the Confidential Information from unauthorized access, use and disclosure. Promptly after any termination of this EULA or at Umbra's request at any other time, you shall return all tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. You may disclose only the general nature, but not the specific terms, of this EULA without the prior consent of Customer and Umbra.
5. Proprietary Rights.
Umbra. Except for the limited rights and licenses expressly granted hereunder or the Contract, no other right, license or option is granted (by implication, estoppel or otherwise), no other use is permitted and (as between the parties) Umbra owns and retains all rights, title and interests (including patents, copyrights, trade secrets and trademarks) in and to the Software, Platform, Service and other Umbra Properties and all copies, modifications and derivative works thereof. You agree that Umbra is free to use any feedback you provide and all generalized knowledge, expertise know-how and technologies related to or acquired in providing the Service or other Umbra Properties, in any manner for all purposes (including developing new or improved products and services).
Restrictions. You shall not, directly or indirectly (a) use any Confidential Information to create any software, platform, service or documentation that is similar to any of the Umbra Properties, (b) attempt to access any component of the Platform or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform (except and only to the extent these restrictions are expressly prohibited by applicable statutory law, and then only upon prior written notice to Umbra) or to circumvent any technological measure that controls access thereto, (c) encumber, sublicense, distribute, transfer, rent, lease or lend any of the Umbra Properties, (d) access or use any Umbra Properties for the benefit of any third party (other than Customer), including in any time-share, service bureau or similar arrangement, (e) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any of the Umbra Properties, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information you obtain or learn pursuant to this EULA or Contract (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (g) permit any third party to do any of the foregoing.
Third Party Requirements. The Umbra Properties may interface, inter-operate, link or be delivered with or include data, content, software or other technology (In-Licensed Materials) that are licensed from and owned by third parties (In-Licensors), the distribution or use of which may be subject to additional or different terms set forth in the applicable terms of service, policies, rules or licenses (In-Licenses). You agree to comply with any and all In-Licenses. In addition, you unconditionally agree that (a) In-Licensors and Umbra make no representation or warranty concerning the In-Licensed Materials or Umbra Properties, unless otherwise expressly set forth in the In-Licenses, (b) In-Licensors have no obligation or liability to you as a result of this EULA and (c) In-Licensors are intended third party beneficiaries of this EULA regarding their respective In-Licensed Materials. Upon specific written request, Umbra will make available the source code for In-Licensed Materials comprised of open source software, but only if doing so is required by the applicable In-License. Umbra will provide details regarding In-Licensed Materials and corresponding licenses upon request. Certain In-License terms for the Umbra viewer, Unity plugin and the Revit plugin are provided at the end of this Section.
Revit Plugin: With respect to your use of the Revit plugin, you agree to comply with the terms and conditions for use of the Revit software, which are currently available at https://www.autodesk.com/company/legal-notices-trademarks/software-license-agreements.
Markings. You shall not obscure, alter or remove any product identification, branding or patent, copyright, trademark or other proprietary or legal notice printed on any documentation or packaging or displayed by the Platform or any other Umbra Properties.
6. NO WARRANTIES; DISCLAIMERS.
No Warranties. Umbra makes no representations or warranties to you under this EULA, regarding the Software, Service or otherwise.
Disclaimers. THE SOFTWARE, SERVICE, RESULTS AND OTHER UMBRA PROPERTIES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, UMBRA HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND AUTHORIZED DISTRIBUTORS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, SERVICE, RESULTS AND OTHER UMBRA PROPERTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, In no event shall UMBRA (or its licensors OR AUTHORIZED DISTRIBUTORS) BE LIABLE to you CONCERNING THE SUBJECT MATTER OF this eula, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) LOSS of data, loss or interruption OF USE, OR COST to procure SUBSTITUTE TECHNOLOGies, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING without limitation, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO UMBRA FOR THE SERVICE DURING THE PREVIOUS SIX (6)-MONTH PERIOD, OR us $50, WHICHEVER IS GREATER, EVEN IF it HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE ESSENTIAL TERMS, WHICH ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8. Term and Termination.
Term. This EULA commences upon Acceptance and immediately expires, automatically and without any further action or notice by either party, upon the earlier of (a) any expiration or termination of the Contract, or (b) your breach of any material provision of this EULA. You may also terminate this EULA at any time, for any or no reason, upon written notice to Umbra, and Umbra may terminate this EULA at any time, for any or no reason, upon at least thirty (30) days prior written notice to you.
Effects of Termination. Upon any expiration or termination of this EULA, all rights, obligations and licenses of the parties shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination; (b) all remedies for any breach of this EULA; (c) you shall stop using, un-install and destroy all copies of the Software; and (d) all provisions in Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (No Warranties; Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8.
9. GENERAL PROVISIONS.
Entire Agreement. This EULA (together with the Contract) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter hereof (and all past dealing or industry custom). Any additional, different or inconsistent terms on any purchase order or other Customer documentation, even if signed by the parties hereafter, shall have no effect under this EULA. Umbra reserves the right to change the EULA at any time, but if it does, it will bring it to your attention by placing a notice on the Umbra website, by sending you an email, and/or by some other means. If you don’t agree with the change(s), you are free to reject them; unfortunately, that means you will no longer be able to use the Software. If you use the Software in any way after a change to the EULA is effective, that means you agree to all of the change(s). Except as expressly provided herein, no change, consent or waiver under this EULA will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this EULA at any time or for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable. This EULA is in English only, which language shall be controlling in all respects. No version of this EULA in another language shall be binding or of any effect.
Governing Law. This EULA shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to this EULA. All disputes between the parties arising out of or in relation to or in connection with this EULA that the parties are unable to resolve between themselves, shall be settled by binding arbitration in accordance with and subject to the provisions described in the Contract. ANY ARBITRATION UNDER THIS EULA WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS EULA OR USING ANY SOFTWARE, YOU AND UMBRA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
International Use. Accessing and using the Software and Service is prohibited from places where doing so would be illegal. Accessing or using the Software and Service from other locations may be done at your own initiative and you shall be responsible for compliance with all local laws. You expressly consent to Umbra's transfer, processing and use of Customer data in accordance with this EULA. You expressly understand and agree that Customer data may be stored and processed in (or transferred from) the country where it was collected and the United States, and that United States laws regarding the collection, storage, processing and onward transfer of information may be less stringent than the laws where you are located.
Remedies. Except as expressly specified otherwise herein, each right and remedy in this EULA is in addition to any other right or remedy, at law or in equity. You agree that, in the event of any breach or threatened breach of Section 4 or 5, Umbra will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Umbra may proceed directly in any court of competent jurisdiction and be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
Notices. All notices under this EULA will be in writing, in English and delivered to the parties at their respective addresses, which may be changed by written notice. Notices will be deemed to have been duly given, and effective when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.
Publicity. You may not issue any press release or other public statement concerning the arrangements under this EULA or the Contract without Umbra's prior written consent.
Assignment. This EULA and your rights and obligations hereunder are personal to you and may not be assigned, in whole or in part, without Umbra's prior written consent, at its sole discretion. Without your consent, Umbra may subcontract performance of all or any part of the Service, and Umbra may assign this EULA (and all of its rights and obligations hereunder) to any of its affiliates or to any successor to all or substantially all of its business which concerns this EULA (whether by sale of assets or equity, merger, consolidation, reorganization or otherwise). This EULA shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Force Majeure. Umbra shall not be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control.
Independent Contractors. The parties shall be independent contractors under this EULA, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Government. The Umbra Properties are commercial products, developed solely at private expense and proprietary to Umbra and its licensors. If you are using the Software for an agency, department or other entity of the United States Government, then such use, duplication, reproduction, modification, release, disclosure or transfer of the Software and related documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is "commercial computer software", the documentation is "commercial computer software documentation" and their use is further restricted in accordance with the terms of this EULA.
Acknowledgment. You acknowledge that (a) you have read and understand this EULA, (b) this EULA has the same force and effect as a signed agreement, (c) Umbra requires that you be identified before issuing this license and (d) issuance of this license does not constitute general publication of the Software, Platform or Confidential Information.