Live Planet VR/360° Camera End User Software License Agreement
IMPORTANT- PLEASE READ: This End User Software License Agreement (“License”) is a legal contract between you (“User”, “you”, or “your”) and Live Planet, Inc. (“Live Planet”, “Company”, “us,” “our,” or “we”) for your use of the software embedded in your LIVE PLANET VR/360° Camera (the “Product Software”) and/or a Live Planet mobile application (the “App Software”) (collectively, the “Software”).
PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE OR DOWNLOADING THE SOFTWARE OR A PRODUCT SOFTWARE UPDATE OR AN APP SOFTWARE UPDATE (AS DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, YOUR SOLE REMEDY SHALL BE TO NOT USE THE SOFTWARE AND, FOR THE PRODUCT SOFTWARE ONLY, TO RETURN YOUR PRODUCT UNDER LIVE PLANET’S 30-DAY SATISFACTION GUARANTEE WITHIN THIRTY (30) DAYS OF YOUR ORIGINAL PURCHASE FROM LIVE PLANET IN ACCORDANCE WITH SECTION 6.C BELOW.
This License provide that all disputes related to these License will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 13 for the details regarding your agreement to arbitrate any disputes arising under this License, including any limitations of that agreement.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR, IF YOU ARE UNDER 18, THAT YOU HAVE REVIEWED THIS LICENSE WITH YOUR PARENT OR LEGAL GUARDIAN AND THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO AGREE TO THIS LICENSE.
A. The Product Software as defined in this License shall include both (i) the “Product Software” which is the documentation, interfaces, content and any data that is installed on or initially came with your LIVE PLANET VR/360° Camera (“Product”), and (ii) any updated or replaced by feature enhancements, software updates or system restore software provided by Live Planet (“Product Software Updates”). The App Software as defined in this License shall include both (i) the “App Software” which is downloaded from the applicable App Store, and (ii) any updated or replacement feature enhancements, software updates provided by Live Planet (“App Software Updates”). Product Software Updates and App Software Updates are collectively referred to as “Software Updates. The Software is licensed, not sold, to you by Live Planet for use only under the terms of this License. Live Planet and its licensors retain ownership of the Software and reserve all rights not expressly granted to you under this License.
B. Live Planet, at its discretion, may make available future Product Software Updates for your Product. The Software Updates, if any, may not necessarily include all existing software features or new features that Live Planet releases for newer or other models of Live Planet cameras. The terms of this License will govern any Product Software Updates provided by Live Planet that replace and/or supplement the version of the Product Software you are currently using, and any previous version of the App Software unless such Software Update is accompanied by a separate license in which case the terms of that license will govern. If you choose to allow automatic Software Updates, your Product or you mobile device will periodically check with Live Planet for updates to the Software and, if one is available, the update will be automatically downloaded and wait for your approval to install onto your Product or be installed on your mobile device. You can turn off the automatic app updates for the Product altogether at any time by going to Settings on your Product, and under Automatic Downloads, turn off Updates.
Permitted License Uses and Restrictions.
A. Subject to the terms and conditions of this License, you are granted a limited, non-exclusive license to use the Product Software on a single Product. Except as permitted in Section 2.C below, and unless as provided in a separate written agreement between you and Live Planet, this License does not allow the Product Software to exist on more than one Product at a time and you may not distribute or otherwise make the Product Software available over a network. This License does not grant you any rights to use Live Planet proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party products.
B. Subject to the terms and conditions of this License, you are granted a limited, non-exclusive license to use the App Software on Your mobile device in connection with Your authorized use of the Live Planet VR Cloud Platform.
C. Subject to the terms and conditions of this License, you are granted a limited, non-exclusive license to download Software Updates that may be made available by Live Planet for your Product to update or restore the Product Software on any Product that you own or control.
D. You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify or create derivative works of the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Software).
You may not lease, lend, sell, redistribute or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Product Software to another party in connection with the transfer of ownership of your Product, provided that: (a) the transfer must include your Product and all of the Product Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage Product; and (c) the party receiving the Product Software reads and agrees to accept the terms and conditions of this License.
This License is eﬀective until terminated. Your rights under this License will terminate automatically or otherwise cease to be eﬀective without notice from Live Planet if you fail to comply with any term(s) of this License. Upon the termination of this License, you will cease all use of the Software. Sections 2.D, 4, 5, and through 16 of this License will survive any such termination.
6. Limited Warranty and Return Policy.
A. Live Planet warrants that the Product Software as provided by Live Planet will substantially conform to Live Planet’s published specifications for the Product Software under normal use for a period of ninety (90) days from the date of your original purchase of the Product (“Warranty Period”).
B. Your sole and exclusive remedies for Product Software warranty claims submitted to Live Planet within the Warranty Period are as follows:
C. You may also return the Product Software, together with your Product, under Live Planet’s 30-day satisfaction guarantee within thirty (30) days of your original purchase from Live Planet. If you wish to return the Product Software under this 30-day satisfaction guarantee, please contact Live Planet at [email protected]; obtain a return material authorization (“RMA”) from Live Planet; and return the Product to Live Planet with proof of purchase at your expense to the address specified by Live Planet in connection with the RMA. Please note that all returns under Live Planet’s 30-day satisfaction guarantee are subject to a 15% restocking fee.
D. The App Software is provided “AS IS” with no warranty of any kind.
7. Exclusions and Limitations.
This Warranty Policy applies only to the Product Software in camera products manufactured by or for Live Planet that are marked with the “Live Planet” trade name or logo.
This Warranty Policy does not apply to and specifically excludes the following: (i) defects or damage caused by misuse, accident (including without limitation collision, fire and the spillage of food or liquid), neglect, abuse, alteration, unusual stress, tampering, modification, improper or unauthorized repair, installation, wiring, or testing, improper storage, third party applications downloaded to the Products or if the serial number has been removed; (ii) damage caused by operating the Product Software outside the permitted or intended uses described by Live Planet; (iii) damage caused by use with non-Live Planet products; (iv) any non-Live Planet hardware products or any software, even if packaged or sold with the Product; (v) modifications of the Product Software by anyone other than Live Planet. Live Planet is not responsible for damage arising from failure to follow instructions relating to the Software’s use.
EXCEPT AS MAY BE EXPRESSLY PROVIDED BY LIVE PLANET IN THE WARRANTY APPLICABLE TO A PRODUCT AT THE TIME OF PURCHASE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND LIVE PLANET AND ITS LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, SOFTWARE AND OUR SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LIVE PLANET DOES NOT WARRANT THAT USE OF ANY SOFTWARE WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. LIVE PLANET DOES NOT WARRANT THAT ANY SOFTWARE COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE SOFTWARE.
8. Limitation of Liability.
EXCEPT WHERE PROHIBITED UNDER BY APPLICABLE LAW, IN NO EVENT WILL LIVE PLANET, ITS RELATED ENTITIES, ITS SERVICE PROVIDERS, LICENSORS, AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “LIVE PLANET PARTIES”) BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THIS LICENSE OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, SOFTWARE OR SERVICES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LIVE PLANET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. You agree that the aggregate liability of the Live Planet Parties to you for all claims arising out of or related to this License or your use or inability to use the Software shall not exceed the amount you paid to Live Planet for that Product, except as may be required by applicable law. This section and all limitations will apply even if the above stated remedy fails of its essential purpose or if the other party knew or should have known of the possibility of such damages. Each provision of this License that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under this License between the parties. This allocation is an essential element of the basis of the bargain between the parties and shall survive any termination or expiration of this License.
You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to this License and which if known, might materially affect your consent to this License. You expressly waive all rights you may have under Section 1532 of the California Civil Code, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
IF THIS CLAUSE IS HELD TO BE UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION DUE TO RELEVANT LAWS, THEN IN NO EVENT SHALL OUR OR THE RELEASEES’ TOTAL LIABILITY TO YOU EXCEED THE TOTAL AMOUNT YOU HAVE PAID US OR THE RELEASEES DURING THE SIX (6) MONTHS PRIOR TO THE INCIDENT. TO THE EXTENT REQUIRED BY APPLICABLE LAW, NOTHING IN THIS CLAUSE SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.
You alone are responsible for the manner in which you use the Software. You shall defend, indemnify and hold harmless the Live Planet Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your use of, or alleged use (or misuse) of, any Software; (b) your violation of any portion of this License, any representation, warranty, or agreement referenced in this License, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
10. Export Control.
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the 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. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law (including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons).
11. Government End Users.
The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any portion of this License to be unenforceable, such excluded term shall be replaced with a valid provision that most closely approximates the Parties’ intent, and the remainder of this License will continue in full force and effect.
A. Generally. In the interest of resolving disputes between you and Live Planet in the most expedient and cost-effective manner, you and Live Planet agree that every dispute arising in connection with this License will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award, and your liability is nevertheless limited as set forth in this License. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this License, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this License. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS LICENSE, YOU AND LIVE PLANET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
B. Exceptions. Despite the provisions of this Section 13, nothing in this License will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and Live Planet will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this License, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Live Planet.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Live Planet’s address for Notice is: Live Planet, Inc., 2355 Westwood Boulevard, #786, Los Angeles, CA 90064, USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Live Planet may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Live Planet must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Live Planet will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Live Planet in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
E. Fees. If you commence arbitration in accordance with this License, Live Planet will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, USA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Live Planet for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
F. No Class Actions. YOU AND LIVE PLANET 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. Further, unless both you and Live Planet agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
G. Modifications to this Arbitration Provision. If Live Planet makes any future change to this arbitration provision, other than a change to Live Planet’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Live Planet’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive, and Live Planet may refuse to provide any further services or Products to you.
H. Enforceability. If Section 13.F. is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to this License.
15. Third Party Acknowledgments.
Portions of the Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation of the Software, and your use of such material is governed by their respective terms.
16. For Users Outside the United States.
This License were written in English (US). To the extent any translated version of this License conflict with the English version, the English version controls, to the extent not prohibited by local law in your jurisdiction. Some features of the Software may not be available in all languages or regions, and some features may vary by region. You agree to use the Software in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software.
17. Contact Information.
You may contact us at:
Live Planet, Inc.
84 W Santa Clara St.
San Jose, California, USA 95113