End User License Agreement
This End User License Agreement (this “Agreement”) is between you (both the individual downloading or installing the Immersion Application (defined below) and any single legal entity on behalf of which such individual is acting) (collectively, “You” or “Your”) and either (1) Immersion Corporation if You have a principal place of business in, are incorporated in, are organized under the laws of, or have a primary residence within North America or Japan; or (2) Immersion Software Ireland Limited if You have a principal place of business in, are incorporated in, are organized under the laws of, or have a primary residence in any country or territory other than North America or Japan (in either case, “Immersion”) and shall be deemed fully executed and effective as of the date that You download the Immersion Application (“Effective Date”).
IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY. BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT (WHERE THIS OPTION IS MADE AVAILABLE TO YOU) OR BY VIEWING, DOWNLOADING, AND/OR MAKING ANY USE OF THE IMMERSION MATERIALS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT OR DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT CLICK TO ACCEPT OR AGREE TO THIS AGREEMENT AND DO NOT VIEW, DOWNLOAD, OR MAKE ANY USE OF THE IMMERSION MATERIALS. IF YOU DO NOT AGREE TO/ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE IMMERSION MATERIALS.
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 “Immersion Application” means the application downloaded and/or used by You through which Immersion provides Immersion Content.
1.2 “Immersion Content” shall mean video, media, software, or any other content that is viewed, downloaded, used, or received in any way by You through the Immersion Application pursuant to this Agreement
1.3 “Immersion Materials” shall mean, collectively, the Immersion Application and the Immersion Content.
1.4 “Mobile Device” means a Mobile Phone, laptop, notebook computer, netbook computer, or tablet computer.
1.5 “Mobile Phone” shall mean a portable, hand-held mobile phone that is capable of transmitting voice communications via a telecommunications common carrier and primarily used and marketed to be used for human-to-human voice telecommunications, text messaging, or email communications.
2. LIMITED LICENSE
2.1 Grant of License Right. Subject to Your compliance with the terms and conditions of this Agreement, Immersion hereby grants to You a limited, personal, revocable, non-exclusive, non-commercial, non-transferable license (without the right to sublicense), to use the Immersion Application solely to view Immersion Content solely on Your Mobile Device and solely for Your personal use consistent with this Agreement. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Immersion to You hereunder with respect to the Immersion Materials.
2.2 Exclusions. Without limitation of Section 2.1, You shall not: (a) copy all or any portion of the Immersion Materials; (b) decompile, disassemble or otherwise reverse engineer the Immersion Materials, or, in the case of software in object code form included within the Immersion Materials, determine or attempt to determine any source code, algorithms, methods or techniques embodied in such software or any portion thereof; or (c) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer the Immersion Materials, in whole or in part, to any third party.
2.3 Proprietary Rights.
(a) Ownership (Non-Mainland China Residents). This Section 2.3(a) shall only apply if You are not a resident of mainland China. Immersion retains and shall own all right, title, and interest in and to the copyright, patent, trade secret, trademark, trade name, and any other intellectual property rights (collectively, the “Intellectual Property Rights”) in and to the Immersion Materials, as well as any changes, modifications, derivative works, and adaptations to the foregoing by whomever produced (the “Haptic Technology”). No implied rights or licenses are granted pursuant to this Agreement. Except for the rights expressly provided herein, You shall not acquire any right to distribute or otherwise use the Immersion Materials or practice any rights under Immersion’s patents, and the provision and license of the Immersion Materials hereunder is expressly conditioned on Your acknowledgment that such use or practice may constitute infringement of Immersion’s Intellectual Property Rights (which is expressly prohibited) and that You must separately obtain a license with respect to any such use. In the event that any invention, work of authorship, trade secret, or other creation is developed by You or Your employees or contractors using the Haptic Technology (“Modified Haptic Technology”), You hereby irrevocably assign all rights, title, and interest in and to the Modified Haptic Technology (including Intellectual Property Rights) to Immersion and agree to assist Immersion in any reasonable manner to obtain and enforce such rights in any and all countries, except as set forth in Section 2.3(b) below (including to execute, when requested, applications and registrations therefor and assignments to Immersion). You hereby covenant that You will not assert against Immersion any claim that the use of any Immersion Materials infringes any Intellectual Property Rights owned or controlled by You. You shall notify Immersion promptly if a breach of security occurs that compromises the confidentiality of the Immersion Materials.
(b) Ownership (Mainland China Residents). If You (or the entity that You represent) reside in the People’s Republic of China, this Section 2.3(b) shall apply to You. Immersion retains and shall own all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights (collectively, the “Intellectual Property Rights”) in and to the Immersion Materials, as well as any changes, modifications, and adaptations to the foregoing produced by or on behalf of Immersion (collectively the “Haptic Technology”). No implied rights or licenses are granted pursuant to this Agreement. Except for the rights expressly provided herein, You shall not acquire any right to distribute or otherwise use any Haptic Technology (or practice any rights under Immersion’s patents) and the provision and license of the Immersion Materials hereunder is expressly conditioned on Your acknowledgement that such use may constitute infringement of Immersion’s Intellectual Property Rights (which is expressly prohibited) and that You must separately obtain a license with respect to any such use. In the event that any improvement to, or modification or derivative work of, the Haptic Technology is developed by You (the “Improvement”), then all Intellectual Property Rights arising in the PRC in respect of such Improvement (“PRC Improvement Rights”) shall initially vest in You upon creation. In consideration of Immersion granting You the favorable license terms set forth in this Agreement (which You acknowledge and agree comprise a fair and reasonable consideration), You hereby irrevocably assign and agree to assign all rights, title, and interest in and to the PRC Improvement Rights to Immersion. All Intellectual Property Rights arising in respect of the Improvement other than PRC Improvement Rights (“Non-PRC Improvement Rights”) shall initially vest in Immersion upon creation. You hereby irrevocably assign and agree to assign all rights, title, and interest in and to the Non-PRC Improvement Rights to Immersion. You further agree to assist Immersion in any reasonable manner to obtain and enforce the PRC Improvement Rights and the Non-PRC Improvement Rights (including to execute, when requested, applications and registrations therefor and assignments to Immersion). Immersion hereby grants to You a non-exclusive right to use the PRC Improvement Rights and Non-PRC Improvement Rights during the Term for Your internal use only in accordance with the stipulations and restrictions set forth in this Agreement. You hereby covenant that You will not assert against Immersion or any of its affiliates any claim that the use of any Immersion Materials infringes any Intellectual Property Rights owned or controlled by You. You do not acquire any other rights, express or implied, in the Immersion Materials other than those rights expressly granted under this Agreement.
2.4 No Support. Immersion has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement.
2.5 Performance Data and In-Market Study.
2.6 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, (1) IMMERSION MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE IMMERSION MATERIALS, (2) THE IMMERSION MATERIALS ARE PROVIDED “AS IS” WITH NO WARRANTY, (3) YOU AGREE THAT YOUR USE OF THE IMMERSION MATERIALS ARE AT YOUR SOLE RISK, AND (4) IMMERSION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE IMMERSION MATERIALS INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Immersion does not warrant that the Immersion Materials will operate in combination with hardware, software, systems or data not provided by Immersion, or that the operation of the Immersion Materials will be uninterrupted or error-free.
2.7 Limitation of Liability. IN NO EVENT WILL IMMERSION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF IMMERSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IMMERSION’S LIABILITY FOR DAMAGES HEREUNDER, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EXCEED TWO HUNDRED AND FIFTY DOLLARS (U.S.$250). THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 2.7 AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH IMMERSION WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
This Agreement is effective from the date You accept the terms and conditions of this Agreement until December 31, 2019, unless earlier terminated (the “Term”). Without limiting other remedies, Immersion may limit, suspend, or terminate this Agreement and access to the Immersion Materials, or prohibit access to the Immersion Materials, on an immediate basis for any reason at any time. Immersion may terminate this Agreement at any time upon Your breach of any of the provisions hereof. You may terminate this Agreement with ten (10) days prior notice to Immersion. Upon expiration or termination of this Agreement, You will cease all use of the Immersion Materials, return to Immersion or destroy, at Immersion’s request, the Immersion Materials, and so certify to Immersion. Except for the licenses granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
4. General Terms
4.1 Changes to this Agreement. Immersion may make changes to or otherwise amend this Agreement:
(a) as it distributes new versions of the Immersion Materials; or
(b) with respect to any previously released version any Immersion Materials, via at least ten (10) days prior written notice to You (which may be delivered via the email address or physical address provided by You when requesting or downloading the Immersion Materials).
You agree that, if You do not agree with any change made by Immersion pursuant to this Section 4.1, this Agreement (without such change) shall automatically terminate as of the date in which such change would become effective and, accordingly, Your right to use the previously released version of the Immersion Materials shall terminate.
4.2 Communications/Notice. By using the Immersion Materials, You consent to receiving electronic communications from Immersion, which may involve sending emails to Your email address, posting communications on Immersion Corporation’s website or in the description of any Immersion software application distributed on the Google Play Store (or similar service). You agree that any notices, agreements, disclosures or other communications that Immersion sends You electronically as described in this Section 4.2 will satisfy any legal communication or notice requirements.
4.3 Indemnification. You will indemnify, defend, and hold harmless Immersion and its affiliates, and their successors, assigns, officers, directors, employees, and agents, from any claim, liability, loss, damage, lien, judgment, and cost, including reasonable attorneys’ fees and litigation expenses, with respect to your use of the Immersion Materials.
4.4 Arbitration. This Section 4.4 only applies if You (or the entity that You represent) reside in, are incorporated within, or are otherwise located in a country that is a signatory to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958 (the “New York Convention”), but not a signatory to the Hague Convention. The parties to this Agreement hereby irrevocably agree:
(a) Except with respect to the matters described in sub-sections (b) and (c) below, all claims, disputes, controversies, and other matters between the parties to this Agreement, arising out of or relating to this Agreement, or the breach thereof, which cannot be resolved by mutual agreement shall be resolved by binding arbitration to be conducted before the American Arbitration Association (the “AAA”), or its successor, in accordance with the Commercial Rules of the AAA then in effect. The arbitration proceeding shall be held in Santa Clara County in the State of California, before a single arbitrator selected in accordance with the rules and regulations of the AAA, and shall apply California’s substantive governing law. The cost of the arbitration shall be borne equally by the parties pending the arbitrator’s award. The prevailing party in any arbitration proceeding or litigation hereunder shall be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and the costs incurred in connection with arbitration or litigation under this Agreement. The arbitrator shall issue a reasoned award, which shall be enforceable in any court of competent jurisdiction.
(b) Notwithstanding sub-section (a) above, Immersion may bring any claim arising out of or relating to the infringement or misappropriation of intellectual property in any court of competent jurisdiction.
(c) Notwithstanding sub-section (a) above, Immersion may apply to any court of competent jurisdiction for interim relief in respect of any claim of whatsoever nature (including, but not limited to a temporary restraining order or a preliminary injunction).
(d) For the purposes of sub-sections (b) and (c) above, but without prejudice to sub-section (a) above, to submit to the non-exclusive jurisdiction and venue, within the State of California, of the State and/or Federal Courts in Santa Clara County, California.
4.5 Dispute Resolution (Hague Convention Resident). If You (or the entity that You represent) reside in, are incorporated within, or are otherwise located in a country that is a signatory to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”), then in the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a State or Federal Court in Santa Clara County, California, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
4.6 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
4.7 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Immersion. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
4.8 Export Administration. THE IMMERSION MATERIALS ARE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE IMMERSION MATERIALS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. FURTHER, ANY DIVERSIONS OF THE IMMERSION MATERIALS THAT ARE CONTRARY TO U.S. LAW IS PROHIBITED.
4.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties and, other than any Immersion license agreement manually signed by the parties, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of a conflict between the terms of this Agreement and a manually-signed Immersion license agreement, the terms of such manually-signed license agreement will control. Except as provided under Section 4.1 above, this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any of Your purchase orders or other ordering documents.
BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT (WHERE THIS OPTION IS MADE AVAILABLE TO YOU) OR BY MAKING ANY USE OF THE IMMERSION MATERIALS, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU, AND (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.