Gadgeteer EULA

GADGETEER
END USER LICENSE AGREEMENT

Effective Date: October 29, 2020
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or an entity) and Metanaut Labs Inc. (“Metanaut”, “us” “we” “our”) regarding the virtual reality game, Gadgeteer, which may include user documentation provided in online or electronic form (collectively, the “Software”).
Software made available to you is licensed, not sold. Your license to the Software is conditional upon your acceptance and compliance with this EULA.
BY CLICKING “I AGREE” OR SIMILAR OR BY USING THE SOFTWARE YOU ARE: (A) AGREEING TO BE BOUND BY THIS EULA; AND (B) REPRESENTING AND WARRANTING: (i) THAT YOU ARE OF LEGAL AGE TO ENTER A BINDING AGREEMENT; AND (ii) IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF ENTITY SUCH AS A CORPORATION, THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA YOU MUST NOT DOWNLOAD OR USE THE SOFTWARE.
When you download or receive the Software from a source that is not directly Metanaut (such source, the “Software Distributor”) you acknowledge and agree that: (a) the Software Distributor is not a party to this EULA; (b) the Software Distributor’s terms and conditions, and privacy policy, might apply to you. Metanaut is not a party to such terms and conditions or privacy policy. If you obtain the Software through a distribution platform (“Distribution Platform”) operated by the Software Distributor and the Software Distributor removes the Software from the Distribution Platform or otherwise disables your access to the Software, or if the agreement under which Metanaut authorized the Software Distributor to distribute the Software to you is terminated, then the rights and licenses granted to you by Metanaut under this EULA will terminate. Upon termination of such rights and licenses, you must immediately cease use of the Software, uninstall it from your electronic devices, and delete or destroy any copies of the Software in your possession or control.
1. VIRTUAL REALITY WARNING
Virtual reality software creates an immersive experience that may cause or contribute to nausea, photosensitivity, epilepsy, seizures, or other bodily injury (including death or disability), or property damage. As with all virtual reality software, please follow the instructions provided with your virtual reality headset and be sure to use the Software in a safe environment away from people and property that you could come in contact with while wearing the headset.
2. LICENSES
2.1 License. Subject to the terms and conditions of this EULA, and conditional upon your compliance with this EULA, Metanaut grants you a non-exclusive, non-sublicensable, non-transferrable, revocable, limited license to install and use one copy of the Software on only one computing device and only by one user at a time. If you wish to use the Software on two or more devices, you must acquire additional Software licenses. If you have purchased multiple licenses for the Software, then, to the extent permitted by such licenses, at any time you may make copies of the Software sufficient to exercise such licenses. You agree that no title or ownership interest in the Software is transferred or assigned to you and that the EULA is not a sale of any right to the Software. You shall not use the Software for commercial purposes except as expressly approved in writing by Metanaut or the Software Distributor (on the condition that Metanaut has authorized the Software Distributor to grant such approval).
2.2 Streaming and Social Media License. Metanaut grants you a non-sublicensable, non-transferrable, revocable, limited license to publicly display and perform the visual and audio elements the Software on video streaming websites, such as youtube.com and twitch.com, and social media, such as tweeting a video, as part of a video or stream recording you playing the Software or providing commentary on the Software (“Social Content”). Metanaut may terminate or modify the scope of this streaming and social media license granted to you at any time without notice or compensation and will not be liable to you or any third party for any loss you incur. If Metanaut terminates this license, you must delete or destroy your Social Content.
3. SUBMITTING INFORMATION AND CONTENT TO THE SOFTWARE
3.1 User Content License. Portions of the Software may allow users of our Software to submit and exchange information and content (such information and content, “User Content”), such as images, text, audio, video, virtual items, chain reaction machines (“Machines”) and puzzles built within Gadgeteer, and other virtual creations, but Metanaut does not screen, edit, or review any User Content before it is submitted or transmitted. You retain the copyright and any other rights you already hold in your User Content. Your User Content will not be subject to any confidentiality obligations by Metanaut. By submitting or posting User Content to the Software or otherwise to Metanaut, to the extent you have intellectual property rights in your User Content, you grant Metanaut and Metanaut’s successors and assigns, a worldwide, royalty free, perpetual, irrevocable, sublicensable (through multiple tiers), transferable, non-exclusive license to use, reproduce, modify, perform, display, distribute, translate, publish, prepare derivative works of, and otherwise disclose to third parties your User Content for any purpose (including to promote and exploit the Software) and according to your account settings without any compensation or further notice to you or any other person (the “User Content License”). Without limiting the foregoing, Metanaut may incorporate your User Content into any form, medium, or technology. To the extent your User Content contains personal information, Metanaut may also use that User Content as provided in our Privacy Policy.
Additionally, you hereby grant each user of the Software a worldwide, non-exclusive, irrevocable, perpetual license to access, use, reproduce, distribute, display, perform, translate, transmit, publish, and prepare derivative works of your User Content solely within the Software environment in a manner consistent with your sharing and privacy settings and as permitted by the Software’s functionalities (“Sharing License”).
3.2 User Content Warning. Each time you submit or post your User Content on the Software, you confirm, represent, and warrant to Metanaut that you own your User Content or have received a valid license to your User Content with sufficient rights to enable you to grant the User Content License and Sharing License and that submitting or transmitting your User Content to or through the Software will not violate the rights of any third party, including intellectual property, privacy, or publicity rights.
3.3 User Content Restrictions. You shall not create, submit, or post User Content that: (a) infringes third party intellectual property rights, privacy rights, or publicity rights; (b) is obscene, offensive, abusive, threatening, pornographic, defamatory, violent, or otherwise objectionable (as determined by Metanaut in its sole discretion); (c) contains advertisements or solicitations for goods or services; or (d) that advocates illegal activity or violates any applicable law.
3.4 Responsibility. You understand that all User Content, whether publicly posted or privately transmitted when posting, sharing, displaying, sending or submitting material using the Software, is the sole responsibility and liability of the person from whom it originated. This means that you, and not Metanaut, are entirely responsible and liable: (a) for all User Content that you submit, post, transmit, or otherwise make available via the Software; and (b) for ensuring that all User Content is accurate, lawful, and does not include misleading information or infringe or violate anyone’s rights. Metanaut does not control the User Content posted via the Software and, therefore, does not guarantee the accuracy, integrity, or quality of any User Content. You therefore agree that you will not hold Metanaut responsible or liable for any inaccuracies or for any errors or omissions in any User Content, or for any loss, injury or damages of any kind incurred as a result of the use of or reliance upon any User Content posted, submitted, uploaded, transmitted, or otherwise made available via the Software. You have sole responsibility and liability for your User Content (which includes feedback, and comments you submit to the Software), including responsibility and liability for its accuracy and for any legal liability that results from your User Content. Please note that User Content on the Software does not necessarily reflect the views of Metanaut, and Metanaut disclaims all responsibility and liability for any such User Content and for any losses or expenses resulting from their use or appearance in the Software.
3.5 Right, to Retain, Delete, or Suspend Access to User Content. You acknowledge that Metanaut is not obligated to screen, monitor, or modify User Content, but that Metanaut has the right (but not the obligation) to refuse, remove, monitor, screen, modify, or delete any User Content that is available via the Software for any reason. You agree that you shall not rely on the Software for backup or storage of your User Content. Metanaut may retain your User Content even if you are no longer using the Software but is not required to provide copies of your User Content to you except as required by applicable law. You acknowledge and expressly consent to Metanaut, accessing, preserving, and disclosing your account information and User Content if required to do so by law or if in good faith Metanaut believes that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this EULA; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety or security of Metanaut, or our affiliates, staff, users, or the public.
3.6 Derivative Content. Metanaut owns all intellectual property rights in the content we derive or create from User Content (“Derivative Content”).
3.7 Feedback About the Software and Unwanted Submissions. We welcome any questions, comments or feedback you might have about the Software or this EULA (“Feedback”). Please refer to our website for our contact information. That said, the Software and internet are not a secure means of communication and any information or content you supply to us will not be kept confidential. For that reason, you should not submit or send to us any patentable ideas or patent applications, advertising or marketing suggestions, know-how, trade secrets, prototypes or any information, written or oral, which you regard as confidential or commercially sensitive or valuable (collectively referred to as “Unwanted Submissions”). While we value your feedback, you agree not to submit any Unwanted Submissions. We will not be subject to any obligation of confidentiality nor be liable for any use and/or disclosure of such Unwanted Submissions. You agree we are free to use your Unwanted Submissions as we see fit without any liability owed to you.
3.8 License to Feedback and Submissions. If you provide Feedback, or Unwanted Submissions, you grant Metanaut a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable, and fully sub-licensable right to use, reproduce, publish, distribute, publicly display, publicly perform, translate, adapt, modify, exploit, and create derivative works from the Feedback or Unwanted Submissions in any way and for any purpose without providing any compensation or notice to you or any other person. You also grant Metanaut the right to use the name you submit with the User Content or Feedback, if any, in connection with Metanaut’s rights hereunder.
3.9 Your Representations; Waiver of Moral Rights. Each time you submit or post Feedback, Unwanted Submissions or User Content, you represent and warrant that any such Feedback, Unwanted Submissions, and User Content you supply to Metanaut is and will be your own original work and has been lawfully provided to Metanaut and that you have all necessary consents to provide this to Metanaut and that Metanaut will be entitled to disclose your name with any such Feedback, Unwanted Submissions, or User Content that Metanaut may choose to publish. Where you are the author of such Feedback, Unwanted Submissions or User Content, you hereby irrevocably waive all moral rights you may have in any such Feedback, Unwanted Submissions, or User Content. You agree that any personal information you supply with such Feedback, Unwanted Submissions, or User Content may be used by us as described in our Privacy Policy.
4. OPEN SOURCE COMPONENTS
Notwithstanding Section 2, you acknowledge that certain components of the Software may contain components licensed under “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including, any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (such component, “Open Source Components”). A list of the Open Source Components and their corresponding open source licenses will be available through the Software under the “Open Source Components” section of the Software. To the extent required by the applicable open source licenses covering the Open Source Components, your use of the Open Source Components will be subject and governed by the terms and conditions of the applicable open source licenses. To the extent the terms of licenses applicable to Open Source Components prohibits any of the restrictions in this EULA with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the license applicable to the Open Source Components require Metanaut to provide you with source code for such Open Source Components, such offer is hereby made, and you may exercise such offer by contacting Metanaut at [email protected] You hereby confirm that you have received all required license notices for Open Source Components included in your initial download of the Software.
5. USE OF THE SOFTWARE
5.1 Personal Data. Accessing the Software may require you to provide Metanaut with personal data, which is collected, used and disclosed in accordance with Metanaut’s Privacy Policy. You agree to provide accurate and complete personal data to Metanaut and to update your data if it changes. The Privacy Policy is available at https://metanautvr.com/privacypolicy (“Privacy Policy”).
5.2 Age Restriction. If you are under the age of 18 (or the age at which you are able to legally agree to be bound by an agreement, if that age is older than 18 in your jurisdiction) (the “Threshold Age”), you may use the Software only under the supervision, and with the authorization of, a parent or legal guardian who agrees to be bound by this EULA. If you are a parent or legal guardian agreeing to be bound by this EULA for the benefit of a child younger than the Threshold Age, be advised that you are fully responsible for his or her use of the Software, including all financial charges and legal liability that he or she may incur and you agree to defend and indemnify Metanaut from and against any and all third-party claims, suits, and proceeding against Metanaut arising out of, or resulting from, his or her use of the Software.
5.3 Access. Access to the Software may require hardware including but not limited to a VR/AR compatible computer, mobile device and or headset (“VR Hardware”) meeting certain minimum specifications set by Metanaut and described on metanautvr.com and the store page from which you downloaded the Software, as updated on one or more occasions, and an Internet connection (“Minimum Specifications”). You agree to provide all VR Hardware and the Internet connection required to use the Software and to pay all fees incurred by you when accessing the Software through an Internet connection.
5.4 Using Machines. Metanaut may allow you to share Machines with other users and to download Machines created by other users. Even if your VR Hardware meets the Minimum Specifications, Machines may not operate well (or not at all) on your VR Hardware. Additionally, users are free to modify Machines created by others, and share these edited Machines, so long as the original creator is credited.
5.5 Responsibility for Use of the Software. You are solely responsible and liable for all uses of the Software by you and any other person who access the Software on your device(s). Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to act with respect to use of the Software by you or by any other person to whom you may provide access to or use of the Software, whether such access or use is permitted by or in violation of this EULA.
5.6 Commercial Use of the Software. If you are using the Software for commercial purposes (for example, as part of a virtual reality arcade), prior to permitting any person to use the Software (such person, a “Player”), you shall:
a. warn the Player of the risks associated with use of virtual reality software, such as photosensitivity, epilepsy, seizures, nausea, dizziness, or other bodily injury (including death or disability), or property damage;
b. obtain from each Player a written and duly signed and delivered waiver of liability (“Waiver of Liability”) that contains, in the local language of your region, substantially at least the following terms:
i. Player assumes all risks involved with or related to using the Software;
ii. Player waives any and all claims that the Player may have or may in the future have against Metanaut and its directors, officers, employees, agents, representatives, contractors, successors and assigns (collectively, the “Releasees”) due to any cause whatsoever arising out of, or related to Player’s use of the Software, including negligence;
iii. Player agrees to defend and indemnify the Releases from any and all third-party claims, suits, proceedings arising out of, or related to, any damage to property or personal injury (including death, illness, and disability) arising from, or related to, Player’s use of the Software;
iv. Player agrees that the Waiver of Liability is binding upon their heirs, next of kin, executors, administrators, assigns, and representatives; and
v. The parties to the Waiver of Liability agree that the Releasees are third-party beneficiaries of the Waiver of Liability with the right to enforce the Waiver of Liability.
During the Term and after termination of this EULA, upon Metanaut’s request, you shall provide Metanaut with a copy of each Waiver of Liability.
6. LIMITATIONS ON USE OF THE SOFTWARE
6.1 Limitations. You shall not, and shall not permit any third-party to, directly or indirectly:
a. use the Software beyond the scope of the license granted under Section 2;
b. engage in conduct that Metanaut determines, in its sole discretion, to constitute improper use of the Software;
c. decompile, disassemble, or reverse engineer the Software or otherwise attempt to derive the Software’s source code;
d. except for Social Content or as expressly permitted by Metanaut, reproduce, rearrange, modify, translate, create derivative works from, display perform, publish or distribute the Software;
e. sell, lease or remove/alter advertising in the Software;
f. cheat or use, develop or distribute automation software (bots), macro software or other cheat utility software or knowingly exploit a flaw or bug in the Software;
g. break, attempt or otherwise assist with the disruption of any computer used to support the Software or experience of another user;
h. upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files or data or other similar malicious software or programs that may damage operation of the Software or the devices of other users;
i. utilize the Software or any part thereof for commercial purposes, except as permitted in Section 2.1 or except as pursuant to the streaming license set forth in Section 2.2;
j. promote or encourage illegal activity including hacking, cracking, distribution of counterfeit software, cheats or hacks for the Software;
k. use profanity, including short forms for profanities, punctuation marks used in place of profanities and colloquial versions of profanities;
l. engage in abusive, defamatory, libellous, threatening or any other conduct that is objectionable or offensive;
m. communicate, link to, post, submit or upload content that contains nudity or other sexual material, violence or any other objectionable or offensive conduct;
n. abuse, bully, harass or publish false or misleading information about users or encourage others to do the same;
o. infringe or violate the rights of a third party including but not limited to: (i) contractual rights; (ii) copyright, patent, trademark or trade secret rights; (iii) privacy rights; (iv) publicity rights; or (v) confidentiality rights or obligations;
p. without limiting the previous paragraph, submit any User Content, including Machines, that infringes or is confusingly similar with any intellectual property belonging to a third-party except if authorized to do so by that third-party;
q. collect or attempt to obtain user data, whether personal or anonymous;
r. remove, delete, alter or obscure any trade­marks or any copyright, trade­mark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
s. use the Software, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
i. power generation systems;
ii. aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
iii. safety­critical applications, including medical or life­support systems, vehicle operation applications or any police, fire or other safety response systems; or
iv. military or aerospace applications, weapons systems or environments;
t. use the Software in violation of any law; or
u. use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Metanaut’s commercial disadvantage; or
v. impersonate another person or an employee of Metanaut.
7. TERM AND TERMINATION
7.1 Term. This EULA will remain in effect until terminated as set forth herein (the “Term”)
7.2 Termination by You. You may terminate this EULA by ceasing to use and destroying all copies of the Software.
7.3 Termination by Metanaut. Metanaut may terminate this EULA at any time and for any reason by providing you with written notice or by disabling your access to the Software. Such termination will be effect upon delivery of notice or the disabling your access to the Software.
7.4 Automatic Termination. This EULA will terminate automatically if you breach this EULA.
7.5 Effect of Termination. Upon termination of this EULA, the licenses granted to you under Section 2 will also terminate, and you shall cease using, uninstall, and destroy all copies of the Software. Termination of this EULA does not necessarily result in your User Content being deleted nor does it revoke your User Content License or Sharing License, although Metanaut may choose to delete such User Content. Data collected by Metanaut may be retained for a period of time after your access to the Software is terminated, as described further in the Privacy Policy. You are not entitled to compensation of any kind as a result of suspension or termination, regardless of whether effected by you or Metanaut, and Metanaut is not liable to you or any third party for such suspension or termination and any related loss.
7.6 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this EULA that, by its nature, should survive termination of this EULA, will survive any termination of this EULA: Sections 3, 4, 5.1, 5.2, 5.5, 7.5, 7.6, 8, 10, 11, 12.2, 13.

8. METANAUT OWNERSHIP RIGHTS
All right, title and interest in and to the Software, including copyrights, patents, trademarks, trade secrets, trade names, computer code (source and object), titles, characters, character names, character likenesses, catch phrases, concepts, dialog, settings, storylines, themes, animation, audio-visual effects, sound effects, musical works, look and feel, methods of operation and Machines (and mechanics and other components thereof) built within the Software by users, are owned by Metanaut or Metanaut’s third-party licensors. Metanaut reserves all rights in the Software.
9. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
9.1 Infringing Content. As intellectual property holders ourselves, we respect intellectual property rights holders’ rights and will quickly respond to any claims of infringement reported regarding content available through the Software. If you find anything in the Software that you believe infringes your copyright or the copyrights of a person you are authorized to represent, please report the alleged infringement to using the procedure set out in our Intellectual Property Infringement Policy currently located at https://metanautvr.com/ipinfringementpolicy. We will terminate the accounts of users who are repeat copyright infringers.
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 DISCLAIMER. THE SOFTWARE IS STILL UNDER DEVELOPMENT AND MAY CONTAIN DEFECTS AND COMPATIBILITY ISSUES AND IS PROVIDED BY METANAUT “AS IS”. METANAUT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, METANAUT MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE, WILL NOT HARM YOUR VR HARDWARE OR RESULT IN LOST DATA OR BE SECURE AGAINST UNAUTHORIZED ACCESS. THE SOFTWARE IS UNSUPPORTED AND THE EULA DOES NOT CREATE ANY OBLIGATION UPON METANAUT TO DEVELOP, MAKE AVAILABLE, OFFER FOR SALE, REPAIR, SUPPORT OR RELEASE THE SOFTWARE. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY METANAUT, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR ASSIGNS, WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SOFTWARE.
10.2 LIMITATION OF LIABILITY. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE SOFTWARE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL METANAUT OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, THIRD-PARTY LICENSORS, SERVICE PROVIDERS, SUCCESSORS, OR ASSIGNS, BE LIABLE TO YOU OR ANY THIRD-PARTY FOR:
(A) ANY: (i) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; (x) PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE; (xi) COST OF SUBSTITUTE GOODS OR SERVICE; OR

(B) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT METANAUT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 METANAUT’S AGGREGATE LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF METANAUT AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, THIRD-PARTY LICENSORS, SERVICE PROVIDERS, SUCCESSORS, AND ASSIGNS, UNDER, IN RELATION TO, OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR ITS OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SOFTWARE (OR IF YOU HAVE RECEIVED THE SOFTWARE FREE OF CHARGE, $10 USD.).
10.4 SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MIGHT NOT APPLY TO YOU.
11. INDEMNIFICATION
You shall defend and indemnify Metanaut and Metanaut’s Indemnified Associates (as defined below) against any third-party claim, suit, or proceeding arising out of, or related to your breach of this EULA or your use of the Software (each an “Indemnified Claim”). Indemnified Claims include government enforcement actions. Your obligations set forth above in this Section 11 include: (a) settlement at your expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of attorneys’ fees, court costs, and other reasonable expenses; and (b) reimbursement of reasonable attorneys’ fees incurred before your assumption of the defense (but not attorneys’ fee incurred thereafter). (the “Indemnified Associates” are Metanaut’s subcontractors and Metanaut’s and such subcontractors’ officers, directors, employees, shareholders, parents, subsidiaries, agents, successors, and assigns.).
12. SOFTWARE
12.1 Updates. The Software may automatically download and install updates from Metanaut or distributors of the Software, from time to time. These updates may include bug fixes, patches, new or improved functions and features, or new versions of the Software. You consent to receiving such updates and authorize Metanaut or our distributors to deliver these updates to you without any additional notice. Metanaut and its distributors are under no obligation to provide updates. Any authorized updates provided by Metanaut or its distributors in respect of the Software are deemed to be part of the Software.
12.2 Export Restrictions. The Software and other products licensed or sold under this EULA may be subject to the export control laws of Canada, United States, and other jurisdictions. You are responsible for ensuring your compliance with such laws. You shall not, and shall not permit any other person to, download, export, re-export, or release, directly or indirectly, the Software into any country, jurisdiction, or person to which the download, export, re-export, or release of the Software is prohibited by applicable law. By downloading or using the Software, you represent and warrant that you are: (a) not located in, under the control of, or a national or resident of any such country or jurisdiction; and (b) not any such person.
13. MISCELLANEOUS
13.1 Modifications to the EULA. Metanaut may revise and update this EULA from time to time by posting the modified version on the Software, by emailing you at the email address we have on file for your account, or by otherwise providing you with notice. Any and all such modifications are effective immediately upon posting and apply to all continued use of the Software. You agree to periodically review this EULA in order to be aware of any such modifications and your continued use of the Software constitutes your acceptance of such modifications.
13.2 Governing law. The EULA and Privacy Policy are governed by and construed under the laws of the province of British Columbia. If a dispute arises, you agree that such dispute be resolved by courts located in Vancouver, British Columbia and hereby submit to the exclusive jurisdiction of such courts.
13.3 Equitable Relief. You hereby acknowledge and agree that any breach by you of this EULA would result in harm to Metanaut, and that Metanaut could not be adequately compensated for such harm by monetary award. Accordingly, you hereby agree that in the event of any such breach, in addition to all other remedies available to Metanaut at law or equity, Metanaut will be entitled as a matter of right, and without posting bond or proving damages, to, notwithstanding Section 13.2, apply to any court of competent jurisdiction for such equitable relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance by you with this EULA.
13.4 Enurement. This EULA will enure to the benefit of and be binding upon the parties to this EULA and their respective successors, heirs, and permitted assigns.
13.5 Assignment. Metanaut may assign this EULA in part or in its entirety, including our rights, interests, and obligations hereunder, without notice to you or your consent. This EULA is personal to you and you may not assign this EULA nor your rights, interests, or obligations under this EULA to any person without our express written consent
13.6 Severability. To the extent any section, clause, provision or sentence or part thereof of the EULA is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction, then that portion shall be severed and the remainder of the EULA given full force and effect.
13.7 No Waiver. Metanaut’s failure to assert or enforce any right contained in the EULA shall not constitute a waiver of that right.
13.8 Entire Agreement. This EULA, together with our Privacy Policy, and any other agreement incorporated by reference, constitutes the sole and entire agreement between you and Metanaut regarding the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
13.9 Interpretation. For the purposes of this EULA: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this EULA as a whole; (d) Section headings do not affect the interpretation of this EULA; (e) words in the singular include the plural and those in the plural include the singular; and (f) a reference to writing or written includes email.
13.10 Language. The parties acknowledge that they have required that this EULA and all related documents be prepared in English. Les parties reconnaissent avoir exigé que les présentes modalités de vente et tous les documents connexes soient rédigés en anglais
13.11 Contact. You may contact Metanaut regarding this EULA by emailing [email protected]