APELAB, INC. BETA SDK LICENSE AGREEMENT

READ THIS AGREEMENT CAREFULLY. YOUR ACCESS TO AND USE OF THE SPATIALSTORIES SOFTWARE DEVELOPMENT KIT BY APELAB INC ARE GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING, USING OR ACCESSING THE SDK, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT INSTALL, USE OR ACCESS THE SDK.

THE SOFTWARE PROVIDED BY APELAB IS FURNISHED TO YOU IN CONNECTION WITH OUR BETA TESTING PROGRAM (THE “BETA PROGRAM”) WHICH SHALL EXPIRE ON A DATE TO BE DETERMINED BY APELAB.

THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION SHALL BE PROVIDED FOR USE AS A PLUGIN FOR THE UNITY ENGINE (TO BE SUPPLIED BY YOU), AND MUST BE USED IN CONJUNCTION WITH THE UNITY ENGINE. NO RIGHT OR LICENSE IS GRANTED TO USE THE SOFTWARE AND/OR ACCOMPANYING DOCUMENTATION WITH ANY OTHER PLATFORM.

1. DEFINITIONS.

  1. “Agreement” means the version of this Confidential SpatialStories Beta SDK License Agreement as it appears on the Apelab site at any given time.
  2. “Intellectual Property Rights” means all forms of intellectual property rights as recognized worldwide including, without limitation, patents, trademarks, copyrights, industrial design rights, moral rights, mask rights, trade secrets and proprietary know-how.
  3. “Apelab”, “us” or “we” means apelab, Inc., a Delaware corporation with offices at 1520 Michael Lane, Pacific Palisades, 90272, California.
  4. “Software” means (i) the SDK, and (ii) any accompanying documentation.
  5. “SDK” means the beta version Apelab Software Development Kit, (including programs, tools, sample code, templates, libraries, and interfaces), updates, information, data, files, documentation, and other materials, whether tangible or intangible, in whatever form or medium (including on-line tools), provided to you at any time, either by way of downloading from Apelab or otherwise provided to you by Apelab, for purposes of the license granted herein.
  6. “You” or “you” means the person or entity which is entering into this Agreement with Apelab and agreeing to be bound by its terms.

2. ACCEPTANCE AND SCOPE OF LICENSE.

  1. Your acceptance of this Agreement (and any later versions), including the licenses granted and all restrictions, is evidenced by any one of the following: (i) installing the Software, (ii) using of all or part of the Software, or (iii) accepting a click-through license.
  2. Apelab may change this Agreement or the SDK at its option, at any time and without notice to you, by posting such changes on the Apelab site at https://www.spatialstories.net. You are responsible for checking the Apelab site and ensuring that you are operating under the correct Agreement or Software. Applications (and any updates to the Applications) are governed by the version of the Agreement and Software in effect when they are developed. You may not develop an Application using a retired SDK or under the terms of an old Agreement.
  3. If you do not accept a new version of the Agreement, you must immediately stop using the Software and terminate this Agreement as provided herein.

3. LICENSE GRANT AND LIMITATIONS.

Subject to your compliance with the terms and conditions of this Agreement, Apelab hereby grants you one (1) revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to use the Software and/or any accompanying Documentation. You may not, nor may You assist another to, copy, disclose, sublicense or otherwise transfer, modify, translate, convert to another programming language, decompile, reverse engineer or disassemble any portion of the Software or use it for any illegal or improper purpose. You may not lend or sell the Software to any third party. You shall not be entitled to hard-copy documentation, support or telephone assistance. All rights not expressly set forth in this Agreement are reserved by Apelab. You shall not use the SDK for any purpose or in any manner not specifically mentioned in the license granted to you under this Section 3. You may not remove or alter any copyright, trademark or proprietary notices from any part of the SDK, or violate or infringe any Apelab Intellectual Property Right.

4. OWNERSHIP.

You agree and understand that this is a license agreement and not an agreement for sale, and that all right, title and interest, including all intellectual property rights, in and to the Software are owned and reserved by Licensor or are licensed to Licensor by a third party. No license or other right of any kind is granted to You except as expressly provided in this Agreement. Nothing in this Agreement shall be construed as conferring any license or right with respect to any of Licensor’s trademarks, trade names or brand names in any way.

5. UPDATES.

This Agreement will apply to any updates made available to you by Apelab. You acknowledge that updates may require you to change or update your work, and may affect your ability to use, access or interact with the Software.

6. CONFIDENTIALITY.

You acknowledge that the Software is in the beta testing phase and that the Software, as well as the performance of the Software, are proprietary in nature and contain valuable confidential information developed or acquired at great expense. You also acknowledge that Apelab may provide to You information that Apelab has identified as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential. Such information and the Software are collectively referred to as “Confidential Information.” You shall retain in confidence and not disclose the Confidential Information and will make no use of the Confidential Information except as provided under, and during the term of, this Agreement. Notwithstanding termination of this Agreement, Your obligations under this Section with respect to Confidentiality shall remain in effect until, and to the extent that, Confidential Information is made publicly available by Apelab without restriction.

7. FEEDBACK.

From time to time during the Term, but no less frequently than monthly, You will provide to Apelab Your evaluation of the Software, including, but not limited to, the identification of any bugs or errors found in the Software and any enhancements, improvements or other proposed modifications of the Software. You agree that all intellectual property therein shall be owned by Apelab. You hereby assign to Apelab all right, title, and interest therein and to any other derivatives derived from Your access to the Confidential Information or Software.

8. RIGHT TO MAKE ANNOUNCEMENTS.

You hereby grant Apelab the limited, non-exclusive, worldwide, royalty-free license to announce in a non-misleading manner that you are doing developmental work with the SDK.

9. TERM AND TERMINATION.

This Agreement shall be effective beginning on the date on which You receive the Software and shall automatically terminate thirty (30) days after the date of expiration of the Beta Program (or of your participation in the Beta Program), which shall be in Apelab’s sole discretion. Apelab will notify You by email when the Beta Program expires and will also post a notice of the expiration of the Beta Program on its website. This Agreement may also be terminated by either Party for any or no reason, such termination to have immediate effect upon notice to the other party. Upon any termination of this Agreement, You shall cease all use of the Software and Confidential Information, immediately return to Apelab the Software and any tangible copies of any Confidential Information, destroy all intangible copies of the Confidential Information (including the Software in Your possession or under Your control, and provide written notice of such destruction to Apelab. The Confidentiality obligations provided for in this Agreement shall survive any termination of this Agreement.

10. DISCLAIMER OF WARRANTIES:

THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS.” APELAB DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT. YOU BEAR ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION. APELAB MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THEY WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED IN BETA FORM, IS LARGELY UNTESTED, AND ACCEPT THE RISK OF FLAWS OR FAILURES.

11. LIMITATION OF LIABILITY:

IN NO EVENT WILL APELAB BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF APELAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL APELAB’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO APELAB BY YOU UNDER THIS AGREEMENT. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.

12. INDEMNIFICATION.

You acknowledge that by providing You the Software, Apelab does not assume any responsibility or liability for any risks associated with personal injury or injury to Your business. Accordingly, You shall defend, indemnify and hold harmless Apelab and its officers, directors, employees and representatives from and against all claims by third parties arising out of or relating in any way to the conduct of Your business or the use of or inability to use the Software, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim in respect of which Apelab seeks indemnification from You, Apelab will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys.

13. NOTICES.

All notices in connection with this Agreement shall be deemed given (i) on the day received by the other party when sent by email, (ii) five days after being deposited in the mail, postage prepaid, certified or registered, return receipt requested, or (iii) one day after being sent by overnight courier, charges prepaid, with a confirming fax. Notices to You will be sent to the email address that You provide when you sign up with Apelab to receive the Software or to such other address as You may provide to Apelab from time to time in writing. Notices to Apelab should be sent by email to dev@apelab.ch.

14. ACKNOWLEDGMENT.

THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR
AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. NO AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS SIGNED BY AN AUTHORIZED REPRESENTATIVE OF APELAB.

15. MISCELLANEOUS.

This Agreement shall be governed by and construed under the laws of the state of California of the United States of America without reference to its conflict of law principles, except as governed by Federal law. Each party agrees to submit to the exclusive and personal jurisdiction of the state and federal courts in California. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer this Agreement or any of Your rights hereunder without Apelab’s prior written consent, and any such attempt is void. You shall be responsible for the payment of any taxes resulting from this Agreement. The relationship between You and Licensor is that of independent contractors. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto.

16. RELATIONSHIP.

Apelab and you are independent third parties. Neither party has, nor may represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name. Nothing in this Agreement may be construed as creating an employer/employee, franchiser/franchisee or principal/agent relationship between the parties.

17. SEVERABILITY; ENFORCEABILITY.

If any provision of this Agreement is held invalid or unenforceable, the unenforceable provision will (i) not affect the validity or enforceability of any other provision of this Agreement, and (ii) be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intent of the parties.

18. WAIVER.

A waiver of a breach of any term in this Agreement will not be considered (i) a waiver of another breach of the same term, (ii) a waiver of a breach of any other term, or (iii) a waiver of Apelab’s right to declare an immediate or a subsequent breach.