Ultraleap Limited: Touchfree Bundle Licence Terms and Conditions

BACKGROUND

A. Ultraleap has developed the Ultraleap Technology that forms the Premium TouchFree Bundle, the Optimum TouchFree Bundle and the Essential TouchFree Bundle, (each referred to as the “Touchfree Bundle” within this Agreement) to create a 3-D interaction space to precisely interact with and control software through non-touch gesturing

B. The Touchfree Bundle comprises a Leap Motion Controller, the Ultraleap Software, a software development kit, the user guides and the software licence (which is this Agreement).

C. Purchaser is purchasing the Touchfree Bundle through Simply NUC and Ultraleap wishes to license the Touchfree Bundle for distribution and/or multi-user use. The Purchaser may also produce an End Product that incorporates parts of the Touchfree Bundle and where this is the case Ultraleap shall also license this incorporation subject to the restrictions set out in this Agreement.

AGREEMENT

In consideration of the rights and obligations conferred upon each other through this Agreement, Ultraleap and Purchaser hereby agree as follows:

1. Definitions

Whenever capitalised in these terms and conditions:

1.1. Agreement” means these terms and conditions.

1.2 “End Product” means a product developed and/or manufactured by Purchaser that incorporates any part of the Touchfree Bundle.

1.3. End User” means an end user of the Touchfree Bundle and/or End Product.

1.4. Fee” means the fees being paid to Simply NUC by Purchaser for the purchase of the Touchfree Bundle.

1.5 “Touchfree Bundle” any one of the Premium TouchFree Bundle, the Optimum TouchFree Bundle and the Essential TouchFree Bundle comprising the Leap Motion Controller which is an Ultraleap Device, the Ultraleap Software, a software development kit, the user guides and the software licence (which is this Agreement).

1.6. Ultraleap Device” means an Ultraleap peripheral device (or Ultraleap-authorised embedded optical module) that obtains images and passes them to the Ultraleap Software.

1.7. Ultraleap EULA” means the standard End User Software License Agreement available at https://developer.leapmotion.com/end-user-license-agreement (or such other location as Ultraleap may notify Purchaser from time to time), together with subsequent amendments to such agreement by Ultraleap made available generally to its users.

1.8. “Ultraleap Software” means version 4 of the Ultraleap core services application and related applications that interact with an Ultraleap Device and an operating system to make motion control functionality available to other applications and software through an interface, and includes any Updates thereto.

1.9. Ultraleap Technology” means the Ultraleap Device, Ultraleap Software and any other technology provided by Ultraleap from time to time.

1.10. Updates” means changes to the Ultraleap Software produced from time to time by Ultraleap to keep a released version of the Ultraleap Software current as to functionality, or to correct any errors, install patches, fix bugs, or perform similar enhancements, and generally indicated by a change in the digit to the right of the decimal point (e.g. a change from version x.x to version x.y) or other similar indicia, with any corrections and updates to associated documentation.

1.11. “Upgrade” means an Ultraleap Software release containing new enhancements, features or functionality which is generally indicated by a change in the digit to the left of the first decimal point (e.g. a change from version x.x. to y.x) or other similar indicia, with associated documentation.

Other capitalised terms used in the Agreement have the meaning given to them elsewhere in the Agreement.

2. Purchase

Purchaser shall purchase the Touchfree Bundle from Simply NUC.

3. Licence and Restrictions

3.1. Licence. Conditioned upon compliance with the terms and conditions of this Agreement, and in consideration of the rights and obligations conferred upon each other through this Agreement, Ultraleap hereby grants Purchaser a limited, non-exclusive, personal, royalty-bearing licence under Ultraleap’s applicable intellectual property rights to the extent necessary to:  (a) copy and distribute (or have copied and distributed), the Touchfree Bundle solely as compiled with, incorporated into, or packaged with, the End Product; and (b) to make (but not have made), use, sell, offer for sale and import the End Product. Purchaser may transfer the Ultraleap Software only to its End Users solely in connection with the provision of the End Product by Purchaser to its End Users.

3.2. Updates. The licence granted in Section 3.1 includes a licence to any Updates that Ultraleap may, in its sole discretion, make available to Purchaser and its End Users. Purchaser acknowledges and agrees that Updates to the Ultraleap Software may impact the functionality of the Touchfree Bundle, including the ability of the End Product to interact with the Ultraleap Software. Purchaser will be solely responsible for the functionality of the End Product, and solely responsible for disabling any auto-update functionality in the Ultraleap Software.

3.3. Restrictions. The licences granted to Purchaser in Section 3.1 are subject to the following restrictions:

3.3.1. except as specifically permitted in Section 3.1. Purchaser may not, and may not enable others to, sell, re-distribute, rent, lease or sublicense the Ultraleap Software. Purchaser may not make the Ultraleap Software available over a network where it could be used by multiple computers at the same time, or accessed remotely in a virtual operating system environment, or otherwise.

3.3.2. Purchaser may not, directly or indirectly, publish, post or otherwise make available the Touchfree Bundle other than as compiled with, incorporated into, or packaged with, the End Product.

3.3.3. Purchaser may not reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, or algorithms in the Touchfree Bundle or attempt to read the FPGA code embedded in Ultraleap Devices (except as and only to the extent any foregoing restriction is prohibited by applicable law or permitted by applicable law or licence notwithstanding the foregoing restriction).

3.3.4. Purchaser may not remove, obscure, or alter any proprietary rights or confidentiality notices within the Ultraleap Software or any documentation or other materials in it or supplied with it.

3.3.5. Purchaser may not represent Ultraleap Software as Purchaser technology or that of third parties.

3.4. Acknowledgment and Waiver. Purchaser agrees that it is solely responsible for the End Product and the use of the Touchfree Bundle and ensuring that the End Product, and any use of the Touchfree Bundle, is safe and free of defects in design and operation. Purchaser acknowledges that the Touchfree Bundle may not always function as intended. Purchaser must design the End Product so that any failure of the Touchfree Bundle used by Purchaser does not cause personal injury or death, property damage, or other losses. If Purchaser chooses to distribute the End Product, (i) Purchaser assumes all risk that use of the Touchfree Bundle and/or End Product by Purchaser or by any others causes any harm or loss, including to the End Users of the End Product or to third parties, (ii) Purchaser hereby waives, on behalf of itself and its affiliates, subsidiaries, officers, directors, employees and contractors, all claims against Ultraleap and its affiliates related to such use, harm or loss (including, but not limited to, any claim that the Touchfree Bundle and/or End Product is defective), and (iii) Purchaser agrees to defend, indemnify and hold Ultraleap and its affiliates harmless from such claims and any claims of Purchaser’s End Users or other third parties.

3.5. Compliance with Laws. Purchaser is entirely responsible for ensuring that the development, manufacturing and commercialisation of the End Product is in accordance with applicable laws.  Without limiting the generality of the foregoing, if the End Product is used in the medical field, Purchaser will be solely responsible for compliance with all applicable laws and regulations related to the development, marketing, commercialisation and use of medical or therapeutic technologies.

3.6. Software Licensed, Not Sold. Notwithstanding the use of terms such as “purchase” and “sale” in this Agreement or on the Simply NUC website, copies of the Ultraleap Software are licensed, not sold, and “purchase” and “sale” when used in relation to the Ultraleap Software refers to the purchase and sale of a licence to use the Ultraleap Software, as set forth in this Agreement.

3.7. Upgrades. Purchaser’s licence does not include a licence to any Upgrades or to any additional functionality beyond hand tracking that Ultraleap may develop or offer for licence, including but not limited to, body tracking, positional tracking, object tracking or other functionality. 

4. Multi-User Licence

To the extent permitted by this Agreement and further conditioned upon compliance with the terms and conditions of this Agreement, Ultraleap hereby grants to Purchaser a limited non-exclusive licence, with the right to grant sub-licence to Purchaser’s distributors, resellers and End Users, to use the Touchfree Bundle in a multi-user environment solely in connection with the End Product.  All other terms of the EULA will apply to the Purchaser, Purchaser’s distributors, resellers and End Users, except that in the event of a conflict between the terms of the EULA and this Agreement, the terms of this Agreement will govern.

5. Trademark Licence

5.1. Trademark Licence. Conditioned upon compliance with the terms and conditions of this Agreement, and in consideration of the rights and obligations conferred upon each other through this Agreement, Ultraleap hereby grants Purchaser a limited, non-exclusive, personal, licence to reproduce and use Ultraleap trademarks solely to mark the End Product, related collateral, and to promote and market the End Product, solely in accordance with the Ultraleap trademark guidelines that Ultraleap shall publish on its website. Such licence includes the right of Purchaser to sublicence distributors, resellers, and other third parties to achieve the foregoing. Purchaser will, on request of Ultraleap, submit any uses of Ultraleap marks by Purchaser or its sub-licensees to Ultraleap for review to determine if such uses are in accordance with Ultraleap trademark guidelines. If the uses are not in accordance with the guidelines, Purchaser will promptly correct the misuses. Purchaser acknowledges and agrees that all uses of the Ultraleap marks will inure to the benefit of Ultraleap. 

5.2. Marketing. For so long as Ultraleap Technology is included with the End Product, Purchaser must ensure any mention (including within Company’s press releases, press briefings, social media accounts, and/or website) of the use by the Purchaser of Ultraleap’s Technology and/or the functionality of Ultraleap’s Technology within the End Product is accredited to Ultraleap by stating the End Product is using ‘Ultraleap Hand Tracking’. Ultraleap may at its option mention Purchaser and its End Product using Ultraleap Technology in Ultraleap’s press releases, press briefings, social media accounts, and/or website, and may use Purchaser trademarks for such purpose. 

6. EULA

Purchaser must either require End Users to affirmatively agree to the Ultraleap EULA, as modified by the licence in Section 3.1, or require its End Users to affirmatively agree to Purchaser’s own end user licence agreement that protects Ultraleap at least as much as the Ultraleap EULA.

7. Support

Ultraleap and its parents, subsidiaries or affiliates and suppliers will not be required to provide any support to Purchaser or its End Users under this Agreement.  Ultraleap and its parents, subsidiaries or affiliates and suppliers have no obligation to modify, or provide any support to assist with modifications of the Ultraleap Software for use with the End Product. Purchaser is solely responsible for the support of its own customers for the End Products.  Purchaser will be solely responsible for, and Ultraleap and its parents, subsidiaries or affiliates and suppliers will have no obligation to honour, any warranties that Purchaser or any of its distributors or resellers provides to End Users with respect to the Touchfree Bundle and/or End Product.

8. Warranty Disclaimer

THE TOUCHFREE BUNDLE  IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.  ULTRALEAP, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TOUCHFREE BUNDLE, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS. ULTRALEAP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE.  ULTRALEAP DOES NOT WARRANT THAT THE TOUCHFREE BUNDLE WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTION.

9. Purchaser's Obligations and Warranties

In addition to Purchaser’s other obligations under this Agreement, Purchaser warrants and agrees that:

9.1. Purchaser has the right and authority to enter into this Agreement on its own behalf and that of its authorised users and this Agreement, when executed, shall constitute legal, valid and binding obligations of the Purchaser and shall be enforceable against the Purchaser in accordance with its terms; and

9.2. the End Products will be in compliance with all applicable laws and regulations and all U.K., U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this Agreement (including privacy and data security laws and regulations).

10. Term and Termination

10.1. Term. This Agreement begins when payment of the fees is authorised by Purchaser  clicking “confirm purchase” or similar button on the Simply NUC website and continues until terminated by Purchaser or by Ultraleap.

10.2. Termination by Purchaser. Purchaser may terminate this Agreement by giving not less than thirty (30) days’ written notice to Ultraleap. 

10.3. Termination by Ultraleap. Ultraleap may terminate this Agreement in the case of Purchaser’s uncured material breach on thirty (30) days’ notice, or, if the breach is not capable of cure, immediately upon notice.

10.4. Effect of Termination. Upon termination of this Agreement: (i) unless Ultraleap has terminated this Agreement pursuant to Section 10.3 Purchaser may continue to distribute the End Products for up to six months after termination; and (ii) any licence rights of Purchaser’s End Users will continue despite termination of this Agreement.  Sections 1, 8, 9.2, 10.4, 11 and 12 will survive termination or expiration of this Agreement. 

11. Limitation of Liability

11.1. ULTRALEAP SHALL NOT IN ANY CIRCUMSTANCES WHATEVER BE LIABLE TO THE PURCHASER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT FOR:

(A) LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;

(B) BUSINESS INTERRUPTION;

(C) LOSS OF ANTICIPATED SAVINGS;

(D) LOSS OR CORRUPTION OF DATA OR INFORMATION;

(E) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; OR

(F) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.

11.2. OTHER THAN THE LOSSES SET OUT ABOVE (FOR WHICH ULTRALEAP IS NOT LIABLE), ULTRALEAP’S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE PAYMENT ACTUALLY PAID BY THE PURCHASER TO SIMPLY NUC FOR THE PURCHASE OF THE TOUCHFREE BUNDLE. THIS MAXIMUM CAP DOES NOT APPLY TO DEATH OR PERSONAL INJURY RESULTING FROM ULTRALEAP'S NEGLIGENCE; FRAUD OR FRAUDULENT MISREPRESENTATION; OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

11.3. THE AGREEMENT SETS OUT THE FULL EXTENT OF ULTRALEAP’S OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE TOUCHFREE BUNDLE. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS, EXPRESS OR IMPLIED, THAT ARE BINDING ON ULTRALEAP.  ANY CONDITION, WARRANTY, REPRESENTATION OR OTHER TERM CONCERNING THE SUPPLY OF THE TOUCHFREE BUNDLE WHICH MIGHT OTHERWISE BE IMPLIED INTO, OR INCORPORATED IN THE AGREEMENT WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

12. Miscellaneous

12.1. Personal Data. Ultraleap may collect Purchaser personal information provided by Purchaser, or provided by Simply NUC to Ultraleap, in connection with the Purchaser’s purchase and use of the Touchfree Bundle and the End Product. Purchaser consents to both this information being collected by Ultraleap and to Simply NUC providing the Purchaser personal Information to Ultraleap. This information may include technical, non-personally identifiable and/or aggregated information such as usage statistics, hardware configuration, problem / fault data, email addresses, IP addresses, information about which tools and/or services are being used and how they are being used, and any other information that relates to the Purchaser’s purchase of the Touchfree Bundle. Ultraleap may use the information collected to facilitate the provision of updates and other services to Purchaser, to verify compliance with, and enforce, the terms of this Agreement, to improve Ultraleap’s products, and for any other legitimate business purposes. Purchaser agrees that Ultraleap may provide any information collected under this Section 12.1, including Purchaser’s name, email address or other identifying information to law enforcement authorities or as required by applicable law or regulation.

12.2. Assignment. Purchaser may not assign this Agreement without the prior written consent of Ultraleap. Any assignment without such consent is void and of no effect. Ultraleap may assign this Agreement without the consent of Purchaser in connection with (1) a merger or consolidation of Ultraleap, (2) a sale or assignment of substantially all its assets, or (3) any other transaction which results in another entity or person owning substantially all of the assets of Ultraleap.  In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

12.3. Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights.  The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

12.4. Reservation. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by Ultraleap, by implication, estoppel, or otherwise.

12.5. Export Restrictions. Purchaser must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use.

12.6. Ultraleap Affiliates. Affiliates of Ultraleap may enter into one or more adoption addenda (each an “Adoption Addendum”) under which the Ultraleap affiliate may agree to be bound by the terms of this Agreement as if the affiliate was an original party to it. Purchaser shall not be required to be a party to any Adoption Addendum unless such Adoption Addendum imposes additional obligations on Purchaser or otherwise seeks to make changes to the Agreement.

12.7. Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of England and Wales, without reference to or application of rules governing choice of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales and Purchaser hereby consents to such jurisdiction. However, Ultraleap may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over Purchaser, to seek injunctive relief.

12.8. Relationship of the Parties. This Agreement does not create any agency, partnership, or joint venture relationship between Ultraleap and Purchaser. This Agreement is for the sole benefit of Ultraleap and Purchaser (and indemnified parties), and no other persons will have any right or remedy under this Agreement.

12.9. Notice. All notices required to be given under this Agreement will be in writing and will be sent, in the case of Ultraleap at the address below and, in the case of the Purchaser, using the details provided when purchasing the Touchfree Bundle through Simply NUC’s website.  Any notice under this Agreement may be delivered by hand or express courier and will be deemed to have been received: (i) by hand delivery, at the time of delivery; or (ii) by express courier, on the second business day after delivery to the carrier.  If an email address is provided below, a copy must also be sent via email, but such copy is for convenience only and the effective time of notice will be calculated as provided in the second sentence of this Section. 

Ultraleap Limited
The West Wing
One Glass Wharf
Bristol
BS2 0EL

12.10. Execution. This Agreement shall be executed by Purchaser completing the purchase of the Touchfree Bundle through the Simply NUC website.

12.11. Entire Agreement. This Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.