EVALUATION LICENSE TERMS
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 FOR YOUR EVALUATION PURPOSES. 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 certain Ziva-branded software and/or other materials (“Evaluation Materials”) made available by Unity Technologies Canada Company and its affiliates (“Unity” and sometimes “we” or “us”). The following terms and conditions (these “Evaluation 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.
For the avoidance of doubt, these Evaluation Terms do not supplement, expand or otherwise attach to any other evaluation terms as may be entered into by you for other Unity offerings. Where you purchase software or services that constitute the Evaluation Materials hereunder, these Evaluation Terms may be automatically terminated or supplemented with additional terms, where designated by Unity.
1. Definitions.
1.1. “Confidential Information” has the meaning set out in Section 3.1 of these Evaluation Terms.
1.2. “Data Protection Laws” mean any data protection laws applicable to Processing of Personal Data, including, without limitation, the EU General Data Protection Regulation, the California Consumer Privacy Act of 2018 and all privacy and security laws, rules, and regulations of any applicable jurisdiction including those in which you 's or Unity’s products or services are provided or rendered, or in which a Party has offices.
1.3. “Evaluation Materials” means any products, features, applications, materials or functionality that Unity makes available as a software package or other product or service (including cloud-hosted services) to you. Evaluation Materials may include written documentation, sample project content and does include those delivery mechanism(s) (including all components thereof) by which any of the foregoing are delivered or made available to you.
1.4. “Feedback” means any comments, suggestions, questions, ideas for improvements to Unity Offerings and/or the Evaluation Materials that you provide to Unity hereunder; provided, however, that “Feedback” will not include your Confidential Information.
1.5. “Intellectual Property” means any and all published and unpublished works of authorship, including without limitation audio-visual works, collective works, computer programs, software, compilations, code, databases, derivative works, literary works, mask works, and sound recordings; inventions and discoveries, whether patented, patentable or subject to trade secret protection, including without limitation articles of manufacture, business methods, compositions of matter, improvements, machines, methods, and processes and new uses for any of the preceding items; information, data, and/or materials, whether tangible or intangible, including algorithms, customer lists, ideas, designs, formulae, know-how, methods, processes, prototypes, systems, and techniques, as well as anything else recognized as intellectual property under applicable law.
1.6. “License Period” means sixty (60) days from your first download of the Evaluation Materials.
1.7. “Output” means the federated data and/or content that you compile using the Evaluation Materials.
1.8. “Parties” means Unity and you, while “Party” means one of them, as applicable.
1.9. “Personal Data” has the meaning set out in the Data Protection Laws.
1.10. “Processing” has the meaning set out in the Data Protection Laws.
1.11. “Project” means any games, applications, software, content (including clipart, photographs, icons, fonts, shapes, animations, or video clips) or other materials that utilize Output or that you have developed with or through the Evaluation Materials. For clarity, Projects must be your internal-use only, may not be available to any party outside of your organization and your use of the Evaluation Materials may not be disclosed to any third parties.
1.12. “Proprietary Rights” means all proprietary rights and all rights of and in patents, mask works, designs, copyright (including the right to prepare derivative works), trademarks, trade names, service marks, database rights, any applications for registration any of the foregoing, author or moral rights, trade secret rights, Intellectual Property, rights of publicity or of personality, and any other like rights now known or hereafter existing in any jurisdiction.
1.13. “Term” has the meaning provided in Section 5.1 of these Evaluation Terms.
1.14. v“Unity Personal Data” has the meaning given in Section 4.2.1.
1.15. “Unity Offering(s)” means Unity’s software products and services, including any user applications, plug-ins, modules, integrated tools, or other features or functionality as may be licensed to you under an existing agreement (including any separate evaluation terms as previously signed by the Parties).
1.16. “Your Personal Data” has the meaning given in Section 4.2.1.
2. Grants to Evaluation Materials.
2.1. General License Grant. Subject to these Evaluation Terms and your compliance herewith, Unity grants to you for the License Period a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to receive and make use of the Evaluation Materials in the your developed or in-development Projects for sole purposes of evaluating the functionality, features and capabilities of the Evaluation Materials. your rights to use the Evaluation Materials expire at the end of the applicable License Period.
2.2. Ownership. You acknowledge and agree that Unity owns all right, title, and interest in and to the Evaluation Materials, Unity Offerings and its Confidential Information including all Proprietary Rights therein and thereto, and that Unity reserves all rights not expressly granted to you under these Evaluation Terms.
2.3. Restrictions. NO RIGHT OR LICENSE IS GRANTED TO YOU TO DISCLOSE, TO DISTRIBUTE OR TO DISSEMINATE THE EVALUATION MATERIALS OR ANY PART THEREOF. You may not:
a) permit users who are not authorized to evaluate the Evaluation Materials to use or access the Evaluation Materials;
b) disassemble, decompile, modify (except as set forth in Section 2.2 above) or reverse engineer the Evaluation Materials, or permit or authorize a third party to do so;
c) copy or share via uploading the Evaluation Materials (or any portion thereof) to a network, e-sharing service, time-share or provide use on a subscription service basis through streaming, hosting, cloud or service-bureau; and/or
d) permit use of the Evaluation Materials for any production or commercial applications.
2.4. Acknowledgment. You further acknowledge and agree that the Evaluation Materials may still be in development, unfinished, in “alpha” or “beta” phases, may have bugs, and may not work as intended or at all. Unity has no obligation to provide any support in connection with the Evaluation Materials, nor to offer or deliver any patches, updates, new releases, new versions or new or modified features or functionality, even where (as the case may be) Unity offers the same to any other person or party.
2.5. Safe Harbor. You acknowledge that the Evaluation Materials are provided for evaluation purposes only. Unity is not committing to deliver any functionality, features or code. The development, timing and release of all products, functionality and features are at the sole discretion of Unity and are subject to change.
2.6. Third Party Materials. Notwithstanding anything else herein, to the extent that the Evaluation Materials provided hereunder incorporate or are bundled with any third-party software or materials, such third-party software and materials will be governed exclusively by any terms and conditions governing such software.
2.7. Your Feedback.
2.7.1. You may provide Feedback to Unity. You hereby irrevocably transfers and assigns to Unity all right, title, and interest in and to all Feedback, and to cause your employees to do the same. At Unity’s request and expense, you will execute/cause to be executed such documents and take such further acts as Unity may reasonably request to assist Unity to acquire, perfect, and maintain its Proprietary Rights and other legal protections in and to the Feedback. Further, to the extent not assignable under applicable law, you agree to waive or to refrain from, and to cause your employees and contractors to waive and to refrain from, asserting any author’s rights, moral rights, or like rights in and to any Feedback.
2.7.2. You grant to Unity a limited, non-exclusive, non-transferable, non-sublicensable, and royalty-free license to copy and internally use your Confidential Information for the sole purposes of operating the Evaluation Materials, analyzing and understanding Feedback relevant to such Confidential Information and applying Feedback to the further development or improvement of the Evaluation Materials and/or Unity Offerings.
2.7.3. You will not communicate any Feedback, Confidential Information, or data to Unity under these Evaluation Terms that includes Personal Data or is in violation of the Proprietary Rights of any third party.
3. Confidential Information.
3.1. “Confidential Information” as used in these Evaluation Terms will mean the following disclosed and/or generated at any time during the Term: (a) as Confidential Information of Unity, the Evaluation Materials, Unity Personal Data, future plans for development of the Evaluation Materials or Unity Offerings, the names and identities of any third party participants in all Feedback; and (b) as Confidential Information of either Party, any business or technical information of that Party or its affiliates relating to that Party or its affiliates’ product plans, designs, software programs, source code, models, specifications, cost, product prices and names, finances, marketing places, business opportunities, or personnel that is clearly marked as “confidential” at the time of disclosure, or, if orally or visually disclosed, identified as confidential at the time of disclosure and confirmed by a writing having a “confidential” marking issued to the receiving Party within thirty (30) business days after the date of such disclosure. These Evaluation Terms will also be Confidential Information of each Party.
3.2. Each Party agrees to hold Confidential Information of the other in strict confidence and not to disclose the other Party’s Confidential Information to any third party except to directors, officers, employees, consultants and agents of it or its affiliates who have a need to know and who are under obligations of confidentiality no less strict than those of these Evaluation Terms, and each Party further agrees not to use or permit to be used Confidential Information of the other Party for any purpose other than for purposes permitted by these Evaluation Terms (which purposes include exercising rights and licenses specifically granted hereunder). Without limitation of the foregoing, each Party will take all measures necessary to safeguard the other Party’s Confidential Information in order to avoid unauthorized disclosure or dissemination of same with such a degree of care and scrutiny that it uses for its own like confidential information, but in no event less than reasonable care.
3.2.1. Notwithstanding Section 3.1, Confidential Information of the other Party will not include any information that (a) is or becomes publicly available, other than through the breach, fault, or negligence of the receiving/holding Party; (b) was rightly in possession of the receiving Party, without restriction, prior to the date hereof; (c) except with respect to Feedback, was developed by or for the recipient without reference to such information received from the disclosing Party, as demonstrable by written records; (d) is rightfully and lawfully obtained by the receiving/holding Party from a third party which has an unrestricted right to disclose the such information; or (e) is approved in writing by the disclosing Party for release;.
3.2.2. If a Party is legally compelled to disclose any Confidential Information of the other Party by any competent administrative or judicial action, the compelled Party may so disclose such Confidential Information provided that the compelled Party attempts to maintain the confidentiality of such Confidential Information by asserting in such action applicable privileges and immediately, to the extent legally permitted, after receipt of the notice of such action notifies the other Party of such action to give that Party the opportunity to seek, at its own expense, any other legal remedies to maintain such Confidential Information in confidence as herein provided.
3.2.3. The Parties agree that a breach of this Section 3 by the receiving Party may cause immediate and irreparable damage to the disclosing Party and will entitle the disclosing Party the right to seek injunctive relief to prevent the continued unauthorized use of the disclosing Party’s Confidential Information, as well as the right to pursue all other remedies available to the disclosing Party at law or equity.
3.2.4. All Confidential Information of a Party is, and will remain, the sole property of that Party. Upon termination hereof, each Party will cease, and cause to be ceased, the use of all Confidential Information of the other Party, and will promptly destroy or return, at the option of the Party to whom the Confidential Information belongs, all such Confidential Information and copies of same, if any.
3.2.5. The Parties acknowledge that you may have entered into prior agreements (any, a “Prior Agreement”) and agree that (a) nothing in any Prior Agreement will be interpreted as preventing or limiting either your or Unity’s ability to exercise its rights and licenses hereunder; and (b) to the extent of any conflict between these Evaluation Terms and any Prior Agreement, these Evaluation Terms will govern in respect of the Evaluation Materials.
4. Personal Data.
4.1. The Parties acknowledge and agree that it is not their intent to communicate any data between one another in connection with the LIcensed Materials that constitutes Personal Data of any individual. Where Personal Data is transmitted to Unity, you represent and warrant that it has complied with all Data Protection Laws with respect to the transfer of such Personal Data, including but not limited to, providing proper notification of the transfer, communicating the possibility that their data will be transmitted outside their country of origin, and obtaining any necessary consents for both collection and storage of biometric data.
4.2. In the event that any data transferred from you to Unity under these Evaluation Terms is deemed Personal Data by either Party in its reasonable discretion or by any applicable legal authority and written notice of the same is provided to either Party, the Parties agree as follows:
4.2.1. Unity is the data controller of such Personal Data with respect to its own customers (“Unity Personal Data”), and that Unity is the data processor of Personal Data with respect to your customers (“Your Personal Data”), as those roles are defined under Data Protection Laws;
4.2.2. Unity will, as soon as practicable, cease usage of and delete Your Personal Data from its systems;
4.2.3. deletion and exclusion of Your Personal Data by Unity is consistent with, and does not constitute a breach of, these Evaluation Terms;
4.2.4. the organizational and technical security measures implemented by each Party are adequate for the transfer of such Personal Data; and
4.2.5. the provisions of this Section 4 are without limitation or prejudice to any other remedies provided at law.
5. Duration and Termination.
5.1. Duration. The term of these Evaluation Terms will commence on the Effective Date and continue in effect for the License Period, unless earlier terminated as provided herein. The Term may not be extended by you through the course of dealing or otherwise without the express, written permission of Unity. Further use of the Evaluation Materials after the License Period will be subject to different terms and payment requirements.
5.2. Termination. Either Party may terminate these Evaluation Terms prior to the end of the Term in any of the following cases:
5.2.1. At any time, with thirty (30) days’ prior written notice to the other Party of the terminating Party’s desire to terminate for convenience;
5.2.2. For cause, immediately on written notice to the other Party in the event the other Party breaches a material term of these Evaluation Terms;
5.2.3. on written notice to the other Party in the event either Party becomes insolvent, makes an assignment for the benefit of creditors, or bankruptcy, insolvency, liquidation, dissolution, or other similar proceedings are instituted by or against the other party and, if instituted against the other Party, such proceedings are not dismissed within thirty (30) days after the institution thereof.
5.3. Survival. All provisions of these Evaluation Terms, which by their nature should survive, will survive the termination or expiration of these Evaluation Terms.
5.4. Effect of Termination. In the event of any termination of these Evaluation Terms by either Party,, (i) you will return the Evaluation Materials to Unity and cease all use thereof, including any Output creation or integration into your products as contemplated by the license set out in Section 2.1; and (ii) each Party, on written request, will return all Confidential Information of the other Party provided or received by such Party in connection with these Evaluation Terms.
6. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE EVALUATION MATERIALS, ANY CONFIDENTIAL INFORMATION PROVIDED BY EITHER PARTY UNDER THESE EVALUATION TERMS, AND ALL FEEDBACK ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND, AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) IN CONNECTION WITH THESE EVALUATION TERMS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); (III) WARRANTIES AS TO ANY OPERATION BEING UNINTERRUPTED OR ERROR FREE; AND (IV) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A PARTY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.
7. Limitation of Liability.
EXCEPT WITH RESPECT TO your OBLIGATIONS UNDER SECTIONS 2 (GRANTS) AND 5.4 (EFFECT OF TERMINATION), OR A BREACH OF SECTION 3 (CONFIDENTIALITY), IN NO EVENT will EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THESE EVALUATION TERMS, TERMINATION OF SAME, OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF ADVISED OR AT THE TIME AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED. FOR PURPOSES OF CLARITY, UNITY’S LIABILITY FOR INFORMATION THAT MAY BE PERSONAL DATA UNDER DATA PROTECTION LAWS will BE LIMITED REGARDLESS OF WHETHER IT IS CONSIDERED CONFIDENTIAL UNDER SECTION 3 (CONFIDENTIALITY) HEREOF AND UNITY’S SOLE OBLIGATIONS WITH RESPECT TO SUCH DATA ARE AS STATED IN SECTION 3.2 HEREOF AND IN APPLICABLE DATA PROTECTION LAWS. UNITY’S AGGREGATE LIABILITY HEREUNDER, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, will NOT EXCEED ONE THOUSAND UNITED STATES DOLLARS (USD$1,000).
8. Miscellaneous.
8.1. Governing Law. These Terms will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, excluding that body of law known as conflict of laws. The Parties expressly agree that the UN Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these Evaluation Terms will be brought exclusively in the federal or provincial courts located in Vancouver, British Columbia, and the Parties hereby irrevocably consent to the exclusive personal and subject-matter jurisdiction and venue therein.
8.2. Assignment. You will have no right to assign, transfer, delegate or otherwise pass on to another party these Evaluation Terms, in whole or in part, by operation of law or otherwise, without Unity’s express prior written consent. Any assignment, delegation, or transfer, or attempted assignment, delegation, or transfer, in violation of the foregoing will be null and void and wholly invalid. Subject to the foregoing, these Evaluation Terms will bind and inure to the benefit of each Party's successors and assigns.
8.3. Entire Agreement; Modifications. These Evaluation Terms constitute the entire, final and exclusive understanding between the Parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous terms of use, agreements, understandings, negotiations and discussions whether oral or written, of the Parties. The provisions of these Evaluation Terms may not be amended or supplemented in any way except by an instrument executed by both Parties.
8.4. Judgment Costs. In any suit or proceeding between the Parties relating to these Evaluation Terms, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other relevant professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of these Evaluation Terms and will survive and not be merged into any such judgment.
8.5. Relationship. The Parties have the status of independent contractors, and nothing in these Evaluation Terms will be deemed to place the Parties in the relationship of employer-employee, principal-agent, partners or joint ventures, nor to confer on either Party any express or implied right, power or authority to enter into any agreement or commitment on behalf of the other Party, nor to impose any obligation upon the other Party.
8.6. Severability. Should any provision of these Evaluation Terms be held to be void, invalid or inoperative, the remaining provisions of these Evaluation Terms will not be affected and will continue in effect as though such provisions were deleted.
8.7. Third Party Beneficiaries. The Parties agree and confirm that affiliates of Unity will be third party beneficiaries under these Evaluation Terms; however, no other persons will be third party beneficiaries.
8.8. Remedies. Except as expressly set forth in these Evaluation Terms, the exercise by either Party of any of its remedies under these Evaluation Terms will be without prejudice to its other remedies under these Evaluation Terms or otherwise.