LAST UPDATED JUNE 30, 2022

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING ZIVA DEVELOPMENT TOOLS OR ANY ACCOMPANYING DOCUMENTATION. By downloading, installing, accessing, using or making an order to purchase our software, you have indicated that you understand this Agreement and accept all of its terms.

Except to the extent that a separate agreement has been executed, these terms and conditions exclusively govern your access to, and use of the Ziva development tools software (“Development Tools”) made available by Unity Technologies Canada Company and its affiliates (“Unity” and sometimes “we” or “us”). The following terms and conditions (these “License Terms”), together with all additional terms referenced herein (collectively this “Agreement”), constitutes a binding legal agreement between you and Unity.  If you accept or agree to this Agreement on behalf of a company, organization or other legal entity, you represent and warrant that you have the authority to bind that legal entity to this Agreement; and, in such event, “you” and “your” will refer and apply to the legal entity.‍

1. DEVELOPMENT TOOLS & LICENSE.

1.1. Online Account Access.  To access and use our Development Tools, you will be expected to create an online account within the Ziva Store. By logging into your online user account, you will be able to make order requests, review these License Terms, access our Development Tools and download any required or relevant files.‍

1.2. Delivery.  We will make the Development Tools available to you via the delivery method we select. Where indicated in your Order, and subject to your payment of applicable fees, we may deliver the Development Tools in binary and/or source code format. ‍

1.3. Use License.  Subject to the terms and conditions of this Agreement and conditioned on your compliance herewith, Unity hereby grants you during the License Period a limited, non-exclusive, non-transferable and non-sublicensable license to: (a) use the Development Tools solely to develop Your Content; and (b) make and use a reasonable number of copies of any documentation provided with the Development Tools as reasonably required in connection with the exercise of the rights granted in clause (a) (collectively, the “License”). ‍

1.4. License Period.  Unless otherwise specified in your Order, the License Period for Development Tools will commence on the Effective Date stated in your Order and continue for a period of 12 months. You may renew the License Period by paying the applicable License Fees.  If you do not pay the applicable renewal Fees prior to the expiration of your then-current LIcense Period, then the applicable License will automatically terminate upon expiration of your then-current License Period.‍

1.5. Updates; Support.  Unity provides certain support for the Development Tools as referenced on our Support Portal. Additional support may be purchased separately. You agree that you will install any Update provided by Unity within a reasonable time after receipt of such Update.  Unity is not obligated to provide support for any version of the Development Tools more than 6 months after a subsequent Update thereto has been released and is not responsible for supporting any of the Beta Development Tools.‍

1.6. Beta License Terms. Notwithstanding anything to the contrary, you acknowledge and agree that any Beta Development Tools we make available to you represent unreleased software and code that is expected to be unstable. Beta Development Tools are not supported as commercial products and are subject to future implementation differences and/or discontinuation at any time. Notwithstanding Section 10 (Limitations on Liability), total liability in respect of the Beta Development Tools will be limited to One Hundred US Dollars (US$100), with all other terms and conditions of Section 10 (Limitations on Liability) applying equally to Beta Development Tools. ‍

2. LICENSE RESTRICTIONS. ‍

2.1. The License set out in Section 1.3 (Use License) does not include any right to do, and you will not do (and will  allow any third party to do), any of the following unless expressly authorized in writing by Unity: (a) copy (except in the course of loading or installing), modify or create derivative works of the Development Tools; (b) distribute, transfer, sublicense, lease, lend, rent or otherwise provide access to the Development Tools to any third party; (c) distribute, publish, publicly perform or display, or sell any of the Development Tools; (d) directly or indirectly make the functionality of the Development Tools available to multiple users or third parties through any means, including but not limited to by uploading the Development Tools to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service; (e) use the Development Tools for competitive analysis or to develop a competing product or service; or (f) do anything that could cause or result in the Development Tools (including the runtime portion thereof) being subject to any open source (or similar) license that requires as a condition of use, modification or distribution that the Development Tools (including the runtime portion thereof) or other software combined or distributed with the Development Tools be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. 

2.2. Further, you may not (and may not allow others to) (i) reverse engineer, disassemble, decompile or attempt to discover the source code for, or any trade secrets related to, the Development Tools (except and only to the extent that such activity is expressly permitted by applicable law); (ii) work around any technical limitations in the Development Tools; (iii) remove, alter or obscure any proprietary rights notice on or in the Development Tools; or (iv) use the Development Tools other than for their intended purpose. 

2.3. Your rights in the Development Tools will be limited to those expressly granted in this Agreement;. Unity reserves all rights and licenses in and to the Development Tools not expressly granted to you under this Agreement, including in respect of any portion of the Development Tools that run within Your Content. ‍

3. TIER ELIGIBILITY.  ‍

3.1. Tier Eligibility. You and everyone using the Development Tools on your behalf must be Tier Eligible for the duration of your purchase.  “Tier Eligible” means that your Total Finances cannot exceed the defined thresholds for the tier of Development Tool you (or those providing services to you) intend to use. By using the Development Tools, you represent and warrant that you are Tier Eligible to use the tier of Development Tools being used by you or on your behalf.  You understand that it is your responsibility to maintain complete records establishing your Tier Eligibility and you bear the burden of proving your Tier Eligibility if we ask. ‍

3.1.1. Total Finances - if you are an individual or Legal Entity using the Development Tools, but you are not providing services to a third party, your Total Finances are the greater of (i) the gross revenue (or similar measure of financial gain) generated from your use of the Development Tools; or (ii) the total funds you procure (or budget you are allotted) in connection with your use of the Development Tools, in each case as measured across all projects where Development Tools are used. If you are an individual or a Legal Entity using the Development Tools to provide services to a third party client, your client’s Total Finances are deemed to be your Total Finances. If you are an Educational Licensee, we do not measure your Total Finances.‍

3.1.2. Financial Tiers –  You are eligible to receive Educational licenses to the Development Tools only if you qualify as an Educational Licensee and irrespective of your Total Finances.  You are eligible to receive Indie licenses of Development Tools only if your Total Finances are below US $500,000 for the most recent twelve (12) month period.  If your Total Finances exceed US $500,000, you may not use a Studio license for any Development Tools at all, even for internal projects or prototyping.   You must use Studio licenses of Development Tools if your Total Finances are at or above US $500,000 for the most recent twelve (12) month period.  You may also elect Studio licenses where your Total Finances are below US $500,000 if you desire to receive any features that we make available only in the Studio license version of the Development Tools. 
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3.2. Tier Restrictions. You acknowledge and agree that, as an express condition to the LIcense rights granted to you herein, (i) you may only use one (1) Development Tools tier at a time;  and (ii) you are not permitted to combine or integrate any of Your Content developed with one tier of the  Development Tools with any of Your Content developed simultaneously with another tier. ‍

4. YOUR RESPONSIBILITIES

4.1. Representations. You represent and warrant that: (a) you have the legal capacity to agree to this Agreement; (b) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department's list of Specially Designated Nationals; and (c) you will comply with all applicable laws and regulations in connection with your use of the Development Tools (including but not limited to applicable Federal Trade Commission rules and COPPA), and in accordance with the terms and conditions specified in this Agreement. ‍

4.2. Records. To ensure compliance with this Agreement, you agree that within ten (10) days from the date of Unity or its authorized representative’s request, you shall provide all pertinent records and information requested, along with a signed verification that all such information is complete and correct, in order to verify that your installation and use of the Development Tools is in compliance with this Agreement. ‍

4.3. Compliance with Third-Party Terms.  The warranties, obligations and liabilities of Unity and your remedies in respect of any Third-Party Materials (whether or not embedded in the Development Tools) will be limited to whatever recourse may be available against the third-party provider of such Third-Party Materials and are subject to the restrictions and other limitations as may be set forth in the applicable provisions of the terms applicable to such Third-Party Materials (“Third-Party Terms”).  You will be solely responsible for compliance with any Third-Party Terms.‍

5. CONFIDENTIAL INFORMATION.  

5.1. Definition.  “Confidential Information” means:  (a) the Development Tools; (b) any your or Unity’s business or technical information that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing Party to the other Party within thirty (30) days of such disclosure; and (iii) the specific terms and pricing set forth in this Agreement. Unity’s Confidential Information includes all Feedback and portions of the Development Tools, including but not limited to the source code and the specific design and structure of individual modules or programs, that constitute or contain trade secrets of Unity and its licensors. ‍

5.2. Exclusions.  Confidential Information does not include information that:  (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (b) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (d) the receiving Party rightfully obtains from a third party without restriction on use or disclosure.‍

5.3. Restrictions.  Each Party will not use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third Party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein.  Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors.  In addition, each Party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.‍

6. INTELLECTUAL PROPERTY RIGHTS.

‍6.1. Unity Ownership. Except as expressly granted in this Agreement, as between Unity and You, Unity owns all right, title and interest in and to the Development Tools, including all Intellectual Property Rights therein and any runtime portions of Development Tools that are intended to operate inside Your Content.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Development Tools.‍

6.2. Your Ownership. Except as expressly granted in this Agreement and excluding any portions of the Development Tools that run within Your Content, as between you and Unity, you own all right, title and interest in and to Your Content, including all intellectual property rights therein. In the event that you use the Development Tools to contribute to any Unauthorized Use, you will assign to Unity any and all ownership of Your Content created from the Unauthorized Use until such time as you and Unity have resolved the authorization status of the Unauthorized Use to our satisfaction.‍

6.3. Data License. You grant Unity an irrevocable, fully-paid and royalty-free license to collect, access, process, transmit, store, copy, share, display, and use any data and information collected by Unity or provided by you in connection with your use of the Development Tools in order to provide, operate, develop, improve, and/or optimize any of our Services, and otherwise as permitted by our Privacy Policy.‍

6.4. Proprietary Rights Notices. All trademarks, service marks, logos, trade names and any other proprietary designations of Unity used herein are trademarks or registered trademarks of Unity. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.‍

6.5. Feedback.  From time to time, you may provide Unity with comments and feedback regarding its experience using the Development Tools and suggestions for improvements (collectively “Feedback”).  you acknowledge and agree that all Feedback will be the sole and exclusive property of Unity, and you agree to assign, and does hereby irrevocably assign, to Unity all of its rights, title and interest in and to all such Feedback, including, without limitation, all Intellectual Property Rights therein.  At Unity’s request and expense, you will take such action (including the execution, delivery and filing of documents and the provision of information, documents and testimony) as Unity may reasonably request to assist Unity to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Feedback. ‍

6.6. Publicity & Press Releases; Use of Marks. Notwithstanding any terms to the contrary in this Agreement, you consent to Unity’s use of your name and logo (“Your Marks”) on our websites and customer lists, identifying you as a customer of the Development Tools and describing your use of the Development Tools.  

6.6.1. You further agree that Unity may issue a press release identifying you as customer of the Development Tools and, where applicable, display art related to your use of the Development Tools, any such press release and use of art created with use of the Development Tools will be subject to your prior review and approval (not to be unreasonably withheld). 

6.6.2. Subject to the terms and conditions of this Agreement, you grant to Unity a non-transferable, royalty-free license, without the right to sublicense, license to use Your Marks solely in connection activities described in this Section 4.6 during the Term of this Agreement. All use of Your Marks will correctly attribute your ownership and will be in accordance with applicable law and any of your then-current trademark usage guidelines that you disclose to us.  All uses of Your Marks hereunder will inure solely to your benefit and we will not contest or aid in contesting the validity or ownership of Your Marks or use any trademark, service mark, domain name, or trade name that is identical or confusingly similar to any one or more of Your Marks, except as permitted by this Agreement.‍

6.7. Additional Protection of Intellectual Property Rights.  You will not infringe or violate, and will take appropriate steps and precautions for the protection of Unity's Intellectual Property Rights. Without limiting the generality of the foregoing, you will (a) protect the Development Tools from and against Unauthorized Use, (b) immediately notify Unity of any Unauthorized Use that comes to your attention, and (c) take all steps reasonably necessary to terminate any Unauthorized Use that comes to your attention, including by retrieving any copy of the Development Tools in the possession or control of any person or entity engaging in such Unauthorized Use.  ‍

7. COMPENSATION; REPORTS

7.1. Fees.  You will pay Unity the Fees in accordance with the payment terms specified in your Orders.  All amounts payable under this Agreement are denominated in U.S. Dollars.  Except as otherwise set forth in an Order, Unity reserves the right to increase the fees for the Development Tools once annually with at least 30 days’ notice to You.‍

7.2. Payment Terms.  Except as otherwise set forth in an Order or invoice we issue to you, payment will be due immediately prior to activation of your Development Tool license. Additional payment terms will be as specified in your Order. ‍

7.3. Taxes.  Unless otherwise specified in an Order, The amounts payable to Unity under this Agreement do not include any duties, taxes, fees or other amounts assessed or imposed by any governmental authority, other than taxes imposed on Unity’s net income.  You will pay or reimburse Unity for all such amounts upon demand or provide certificates or other evidence of tax exemption

7.4. Costs.  You will bear all costs and expenses incurred in the development of Your Content.

‍8. DISCLAIMER. 

THE DEVELOPMENT TOOLS AND ANY THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. UNITY AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. UNITY DOES NOT REPRESENT OR WARRANT THAT THE DEVELOPMENT TOOLS OR THIRD-PARTY MATERIALS ARE (I) ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, (II) FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (III) SUFFICIENT FOR DEVELOPMENT OF YOUR CONTENT.  

YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DEVELOPMENT TOOLS.  YOU WILL BE SOLELY RESPONSIBLE FOR BACKING UP ANY YOU CONTENT AND FOR THE ACCURACY AND QUALITY OF YOUR CONTENT. YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE DEVELOPMENT TOOLS, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE DEVELOPMENT TOOLS.‍

9. INDEMNIFICATION

To the maximum extent permitted by law, you agree to defend, indemnify, and hold Unity, its officers, directors, employees and agents, harmless from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of the Development Tools; (ii) Your Content; or (iii) your violation of this Agreement.

10. LIMITATIONS ON LIABILITY

UNITY AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE DEVELOPMENT TOOLS; OR (B) ONE HUNDRED U.S. DOLLARS (US$100). IN NO EVENT WILL UNITY, ITS LICENSORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE DEVELOPMENT TOOLS, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE DEVELOPMENT TOOLS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT UNITY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ‍

11. TERM AND TERMINATION

11.1. Term.  The term of this Agreement (the “Term”) will commence on the Effective Date and will continue thereafter unless and until terminated in accordance with the terms hereof. This Agreement will immediately terminate upon the expiration of all License Periods.
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11.2. Termination.  The Term of this Agreement will end upon the expiration of all License Periods. You may terminate this Agreement at any time upon not less than thirty (30) days’ prior written notice to Unity.  In the event of a breach or default under this Agreement by You, Unity may terminate the Agreement and/or suspend or limit your access to the Development Tools by giving you written notice of the breach or default and Unity’s intention to terminate or suspend.   Any termination of this Agreement or suspension of access to the Development Tools will be without prejudice to any other rights or claims that a Party may have hereunder.

11.3. Effect of Termination.  Upon termination of this Agreement, the License for any Development Tools will terminate and you will immediately: (a) cease using such Development Tools; (b) delete all copies of such Development Tools from all machine readable media and electronic memory in your possession or control; and (c) deliver to Unity a certificate executed by an officer of you certifying that it no longer has any copies of such Development Tools in its possession or control.  Upon termination, (i) Unity will have no further obligation to provide the Development Tools to you; (ii) all rights granted to you under the Agreement will immediately cease; (iii) Unity will have no obligation to maintain or forward you Your Content; and (iv) you will remain liable for all fees and charges for all Development Tools ordered.  If Unity suspends, disables or terminates due to your breach, you will also remain liable for any remaining amounts owing for the entire term of the applicable License Period. 

11.4. Survival.  Any suspension, disablement or termination will not affect your obligations to Unity (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, disablement or termination.‍

12. GOVERNING LAW, JURISDICTION & DISPUTE RESOLUTION‍

12.1. This Agreement and the relationship between the parties will be governed by and construed in accordance with the laws of the State of California, United States of America, without regard to or application of conflict of laws rules or principles and regardless of your location. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Except as set forth below, any dispute arising out of or in connection with these Terms, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration.

12.2. The parties agree that all disputes must be arbitrated in the City and County of San Francisco, California State of California, United States of America before the American Arbitration Association (“AAA”) and under the AAA’s Commercial Arbitration Rules.  The arbitration shall be conducted by one (1) arbitrator in English. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND UNITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.  

12.3. Notwithstanding the parties' ability to resolve all disputes through arbitration, Unity may bring an action in court (1) to enforce its intellectual property rights, including without limitation to seek injunctive relief, or (2) in cases that do not involve intellectual property rights, to seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages). If you reside (or your principal place of business is) within the United States and the parties have an intellectual property rights dispute, you and Unity agree to submit to the personal and exclusive jurisdiction of and venue the state and federal courts located in the City and County of San Francisco, California. The parties agree to accept service of process by mail, and hereby waive all jurisdictional and venue defenses otherwise available.‍

13. MISCELLANEOUS‍

13.1. Independent Contractor.  Each Party is an independent contractor in the performance of this Agreement.  Without limiting the generality of the foregoing, each Party will properly withhold and pay, or ensure that a third party properly withholds and pays for, all federal income, workers’ compensation, employer’s liability, pension, deferred compensation, welfare, insurance and other employee taxes or benefits payable to or on behalf of any person engaged by such Party to perform any of its obligations under this Agreement.  Neither Party will have, by virtue of this Agreement, any right, power or authority to enter into any contract or to assume or incur any other commitment or obligation in the name of or on behalf of, to act as the agent or representative of, or to otherwise bind the other Party.  

13.2. Notices.  Any notices required or permitted under this Agreement will be given in writing, in English, and must be sent by post or email.  Notice by email will be sent to you at the email address listed in your Ziva account and to Unity at humans@zivadynamics.com, and notice by post will be sent to each Party’s address in the signature block below.  Notice will be deemed given on receipt, as verified by written or automated receipt or by electronic log (as applicable).  Either Party may change such notice address by giving the other Party notice of such change in accordance with this Section.

13.3. Compliance With Laws and Agreements.  Each Party will comply with all applicable laws, regulations, rules and orders and all agreements with third parties related to such Party’s performance of this Agreement.  Without limiting the generality of the foregoing, the Development Tools may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries.  Except as authorized by law, you will not export or re-export the Development Tools to any country, or to any person, entity, or end-user subject to U.S. export controls, including persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals.  

13.4. Nonwaiver.  Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

13.5. Assignment.  Neither Party may assign this Agreement, including any of its rights or obligations under this Agreement, unless the other Party consents in writing, provided that either Party may assign this Agreement without consent to (a) any of its subsidiaries, affiliates, joint ventures, partnerships and limited liability companies in which it has a majority interest; or (b) a successor to all or substantially all of its business or assets relating to this Agreement, whether by sale, merger, operation of law or otherwise.  Assignment will not relieve the assigning Party of its obligations under the assigned agreement.  Any attempted transfer or assignment in violation of this Section shall be void, and, in the event of any such assignment or attempted assignment by You, Unity shall have the right to immediately terminate this Agreement. 

13.6. Force Majeure.  Neither Party will be liable for or considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of events beyond the reasonable control of such Party. 

13.7. Severability.  If any provision of this Agreement is held by a court to be illegal, invalid, or unenforceable, the rest of this Agreement will be legal, valid, and enforceable to the fullest extent possible.

13.8. Cumulative Remedies.  The rights and remedies of Unity set forth in this Agreement are in addition to and do not in any way limit any other rights and remedies afforded to Unity by law or otherwise.

13.9. Attorneys’ Fees.  In any action to enforce any right or remedy under this Agreement, to recover any damages or other relief on account of any breach of or default under this Agreement, or to interpret any provision of this Agreement, the substantially prevailing Party will be entitled to recover its costs and expenses (including reasonable attorneys’ fees) reasonably incurred in connection with such action or any appeal thereof.

13.10. Interpretation; Entire Agreement.  As used in this Agreement, the term “include” and “including” are meant to be inclusive and will be deemed to mean “include without limitation” or “including without limitation.”  This Agreement sets forth the entire agreement, and supersedes any and all prior proposals, understandings and agreements, between the Parties with regard to the subject matter hereof.  No amendment, modification or waiver of any provision of this Agreement will be valid unless set forth in a written instrument signed by the Party to be bound thereby.‍

14. DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following capitalized terms will have the following meanings. Where not set out below, capitalized terms have their meanings as ascribed in relevant provisions of this Agreement:

14.1. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity. 

14.2. “Beta Development Tools” means experimental, “beta”, or any other in-development release form of the Development Tools. 

14.3. “Claims” means any claims or actions threatened, alleged or filed by any third party together with any related liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees, witness fees and court costs), whether incurred by settlement or otherwise.
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14.4. “Development Tools” means the Ziva-branded software, documentation, scripts, metadata and other related materials made available by Unity to you under this Agreement (excluding any Third-Party Materials), together with any and all Updates provided by Unity, if any. 

14.5. “Educational Licensee” means a Student, Faculty or Qualified Educational Institution.

14.6. “Faculty” means educational staff of a Qualified Educational Institution. ‍

14.7. “Fees” means the fees, reimbursable expenses, compensation and other amounts payable by you under this Agreement.

14.8. “Intellectual Property Rights” means any patent rights, copyrights, rights in trademark, trade secrets, publicity rights, database rights, moral rights or other proprietary or intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise, including all renewals and extensions thereof, all goodwill associated therewith, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.

14.9. “License” means the rights granted to you in Section 2.

14.10. “License Period” means the term of any License as specified in Section 2.  The standard License Period for the Development Tools is twelve (12) months. 

14.11. “Order” means the agreement to procure software and products from Unity through either, as applicable (i) online via our websites and/or in our software interfaces or (ii) offline purchase transactions entered into between you and Unity. 

14.12. “Qualified Educational Institution” means an educational institution which has been accredited by an authorized governmental agency within its applicable local, state, provincial, federal, or national government and has the primary purpose of teaching its enrolled students, or a similar institution with the intent to conduct non-commercially oriented research activities under the scope of this agreement. In all cases, Unity will at its sole discretion determine the status and qualification of any licensee as a Qualified Educational Institution. 

14.13. “Site” means our website at www.zivadynamics.com together with such other sites referenced to or linked therein. 

14.14. “Student” means an individual person currently enrolled as a student at a Qualified Educational Institution, as verified by us. Students must be at least the age at which an individual can consent to the processing of their personal data in their country of residence (e.g., 13 years old in the United States and 16 years old in the European Union). 

14.15. “Term” means the term of the Agreement, as specified in Section 9.1.

14.16. “Third-Party Materials” means any (a) third party open source software or other materials embedded within the Development Tools, and (b) third party software or other materials with which the Development Tools are designed to interact or integrate.

14.17. “Trademark” means any name, trade name, brand, logo, service mark, trademark or trade dress.

14.18. “Update” means a change to any Development Tools that is commercially released by Unity during the Term in the form of a patch, bug fix, point release, major release or other update to the version of the Development Tools then licensed by you under this Agreement.

14.19. “Unauthorized Use” means any access, use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Development Tools or Confidential Information of Unity that is not expressly authorized under this Agreement or by our other written authorization. In respect of any Educational Licensee, use of our Development Tools to contribute to any singular or multiple production(s) or project(s) where the sole focus of the project in question is anything other than an educational curriculum, academic research project, or similar undertaking will be considered “Unauthorized Use”. For further clarity, any academic research project that is primarily backed, financed, or supported by commercial parties shall be deemed Unauthorized Use that would require you to immediately notify us of the nature of the work and necessitate your acquisition of an appropriate Commercial License. In all cases, the results of the projects in question under the terms of this license shall not be sold or commercialized in any form without the express written consent of Unity. 

14.20. “Your Content” means any clipart, photographs, icons, fonts, shapes, animations, video clips, or other content developed by or for you in connection with your use of the Development Tools.