PLEASE READ THIS ENTIRE SOFTWARE LICENSE AGREEMENT ("AGREEMENT") BEFORE USING THE VPiX SOFTWARE. BY USING THE VPiX SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU WOULD LIKE TO USE THE VPiX SOFTWARE PURSUANT TO THIS AGREEMENT, SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE "ACCEPT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, PLEASE CLICK "CANCEL".
IMPORTANT NOTE: This software may be used to create 3D/panoramic/virtual reality content. It is licensed to You only for reproduction of non-copyrighted materials, meaning digital materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material you should contact your legal advisor. You hereby acknowledge and understand that without limitation, the content made with the foregoing. For the purposes of this document, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, trademark law and copyright laws as well as other firstusage recognition of VPiX® proprietary rights. By using any VPiX® software, You agree to not remove, obscure or alter the any of VPiX® patent-pending notices, trademark registration numbers or copyrights of Virtual Pictures Corp. (aka: VPiX®)
By agreeing to the VPiX ULA terms below and using the VPiX software, you are hereby agreeing to the VPiX Sales and VPiX Privacy Policies.
1.1 "VPiX® or VPiX" means Virtual Pictures Corp. and/or any of its affiliates responsible for operating the SaaS appliances at the following, but not necessarily limited to the domains of, CSI360.net, Kayyah.com, MotorStreet360.com, Smoke.net, VPiX360.com or any licensed VPiX white label customer or affiliate operating in various territories.
1.2 "VPiX Software including any VPiX Trial" means the VPiX 3D Virtual Tour Builder Software and/or the Software as a Service (SaaS) platform(s), including any and all technologies therein, provided by VPiX to You, the end customer.
1.3 "VPiX User License Agreement" ("VULA") means an agreement with VPiX for the upload, creation and distribution of finished 3D content via any of VPiX' SaaS platforms.
1.4 "Customer, User" means You -- the entity that has entered into or will enter into a VPiX SaaS platform Agreement with VPiX pursuant to which User's panoramic/3D content may be created and distributed via VPiX SaaS platform(s).
1.5 "User Generated Materials" means digital content of 3D or spherical panoramic images, audio recordings, data, metadata, artwork, videos, PDFs, and other content and materials to be provided to VPiX for potential distribution pursuant to this VPiX User License Agreement ("VULA").
Subject to all of the requirements and limitations set forth in this Agreement, User is hereby granted a nonexclusive, non-transferable license to use the VPiX Software internally to encode and upload User Materials for the sole purpose of providing User Materials to VPiX for potential distribution pursuant to an executed VULA. Except as expressly set forth herein, no other licenses are granted or to be implied pursuant to this Agreement.
3.1 User understands that all VPiX Software is on-demand and available by subscription only. VPiX Software is never sold. User hereby understands this and agrees to use the VPiX Software only in accordance with this Agreement and may only use the VPiX Software creating their own content for themselves of for their customers. User may not permit any other party to use or copy the VPiX Software.
3.2 You may not make screen grabs, reverse engineer, disassemble, attempt to derive source code, modify or hire a 3rd party including a known or unknown competitor with the intention of creating a derivative or competing work. You may not show, describe or discuss the VPiX back office content management tools in any manner or form with any known or unknown 3rd party competitor. You may not represent that any part of the VPiX SaaS platform is your own work, or is owned by you on any advertising platform or medium including but not necessarily limited to emails, websites, newspapers, radio, podcasts, television or any social media site. Any attempt to do so can and will result in your immediate suspension of service(s) and you may be subject to civil and criminal prosecution under the Economic Espionage Act including the Trade Secrets of the State of Colorado under The Uniform Trade Secrets Act, and the Colorado Secrets Act, specifically C.R.S. §§ 7-74-101 through 7-74-101.
3.3 User may not modify, sublicense, rent, lease, lend or distribute the VPiX Software, may not create derivative works based upon the VPiX Software, and may not incorporate the VPiX Software into or combine the VPiX Software with any other software or hardware unless User has a Scope of Work (SOW) and a VPiX License which outlines the terms and use of the VPiX Software.
3.5 User may not use the VPiX Software to encode, upload, transmit or distribute content or materials for any purpose other than providing such materials to VPiX for potential distribution pursuant to an executed VULA.
3.6 Materials encoded or uploaded using the VPiX Software may not be illegal, defamatory, pornographic or copyrighted. VPiX reserves the right to inspect User's account from time to time to ensure User complies with VULA. VPiX reserves the right to move, quarantine or delete such content with little or no notice to you in the event VPiX is notified of any condition not necessarily limited to: Notification by one or more of your customers that content is to be moved to another account or removed, notification by the copyright holder such as iStockPhoto, Comstock or another stock photo agency, a legal authority or by court order.
3.7 This License will be effective only if the "Accept" button is clicked by an authorized representative of User who has the authority to accept this license on behalf of User. Unless such acceptance by an authorized representative of User has occurred, any use, reproduction, display and/or distribution of the VPiX is not covered by this license and is prohibited. The person who clicks the "Accept" button for this license agreement represents and warrants that they have the authority and is of legal age to accept this agreement on behalf of User.
3.8 User hereby grants to VPiX the non-exclusive right to store, reproduce, encode and/or format User Materials delivered by User (or by User's authorized representative) under this Agreement, as may be required by VPiX in order to offer and potentially distribute such User Materials pursuant to a current or future VPiX User License Agreement.
4.1 Unless terminated earlier in accordance with this Section 4, this Agreement will remain in effect until termination or expiration of User's applicable VULA.
4.2 VPiX may terminate this Agreement at any time by providing written notice to User. Termination will become effective immediately upon written notice to User provided in accordance with Section 10 of this Agreement. User may terminate this Agreement at any time by providing written notice of termination to VPiX in accordance with Section 10 of this Agreement, destroying all copies of the VPiX Software in its possession or control and providing written assurance of such destruction with the notice of termination.
4.3 This Agreement will automatically terminate if User fails to comply with any term(s) of this Agreement, becomes insolvent, has a receiver appointed, makes an assignment for the benefit of creditors, or becomes the subject of any proceeding under any bankruptcy, insolvency, or debtor's relief law.
4.4 Upon any termination or expiration of this Agreement, all rights granted to User herein shall immediately cease and User shall promptly return or destroy all copies of the VPiX Software in User's possession and provide written assurance of such return or destruction. The provisions of Sections 1, 3, 4.4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 will survive termination or expiration of this Agreement. The rights of the parties under this Section 4 are in addition to any other rights and remedies provided by law or under this Agreement.
5.1 VPiX licenses the Software to User on an "AS IS" basis. VPiX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, REGARDING THE VPiX SOFTWARE OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH OTHER SOFTWARE OR HARDWARE. VPiX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE VPiX SOFTWARE WILL MEET PARTICULAR REQUIREMENTS, OR THAT THE OPERATION OF THE VPiX SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE VPiX SOFTWARE WILL BE CORRECTED.
5.2 IN NO EVENT WILL VPiX BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, OR ARISING FROM THE USE OF THE VPiX SOFTWARE, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES.
5.3 IN NO EVENT WILL VPiX'S TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE RIGHTS PROVIDED PURSUANT TO THIS AGREEMENT EXCEED $500.
5.4 Both parties acknowledge that the disclaimers and limitations of liability set forth herein are an essential element of this Agreement without which VPiX would not be willing to enter into this Agreement.
VPiX has no obligation to indemnify, defend or hold User harmless from and against any claim that the VPiX Software infringes any third party patent, copyright, trademark or other intellectual property right, or any other claim arising out of this Agreement, or relating to the VPiX Software. User will promptly notify VPiX of any such claim in writing via the United States Postal Service (USPS) using first-class mail and registered receipt. VPiX mailing address is: Virtual Pictures Corp 590 Highway 105 Suite 276 Monument, CO 80132, USA.
User agrees to abide by U.S. and other applicable export control laws and not to transfer the VPiX Software except as authorized by United States law and the laws of the jurisdiction in which the VPiX Software was obtained. In particular, but without limitation, the VPiX Software may not be exported or re-exported;
(a) into any U.S. embargoed countries or
(b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
User may not knowingly provide the VPiX Software to a member located in, under control of, or a national or resident of any such country or on any such list.
Neither party may represent or bind the other party in any way and nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
This Agreement will be binding on the assigns, heirs and successors (whether through merger or otherwise) of the parties, except that it may not be assigned by any means, including without limitation, operation of law or merger, by User. Any purported assignment not permitted under this Section will be void.
Any notice under this Agreement will be deemed given if notice is provided in accordance with the notice requirements set forth in VPiX User License Agreement (VULA).
The terms and conditions of this Agreement are confidential and may not be disclosed by User to any third party.
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado as applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. Any litigation or other dispute resolution between the parties relating to this Agreement will take place in El Paso County, Colorado Springs Colorado. The parties consent to the personal jurisdiction of, and venue in, the state and federal courts within that District.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the economic benefits and intent of the parties, and the remainder of this Agreement will continue in full force and effect.
No delay, omission or failure to exercise any right or remedy provided for in this Agreement shall be deemed a waiver thereof, nor shall it be deemed to be a waiver of any other or subsequent breach.
If the VPiX Software is supplied to the United States Government, the VPiX Software is classified as "restricted computer software" as defined in clause 52.227-19 of the Federal Acquisition Regulation (FAR). The United States Government's rights to the VPiX Software whether used on a VPiX server housed at Rackspace or on a government or law enforcement agencies server/network are as provided in clause 52.227-19 of the FAR.sed at Rackspace or on a government or law enforcement agencies server/network are as provided in clause 52.227-19 of the FAR.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter set forth herein and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by VPiX.