This End User License Agreement, including the Order Form which by this reference is incorporated herein (“Agreement” or “EULA”) shall be considered a legally binding agreement between Pulse & Pixel LLC, a limited liability corporation (“Licensor” or “we”) and the person or entity identified on the Order Form as the licensee of the Product (an individual or an entity, hereinafter “Licensee” or “you”) for the use of the specific software: Impulse, which may include related printed material or documentation, media, and any other components and/or software modules (the “Product”).
BY WAY OF ACCESSING THE PRODUCT OR USING THE SERVICE, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE HEREIN CONTAINED TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, YOU THEN HAVE NO RIGHTS TO USE THE PLATFORM OR ACCESS THE SERVICE AND SHOULD THEREFORE NOT USE THE PLATFORM NOR ACCESS THE SERVICE. We reserve the right to, at our sole discretion, change or modify portions of this Agreement at any time. If we do, we will update you via the contact information set forth in the Order Form.
THIS PRODUCT IS PROTECTED BY COPYRIGHT LAWS, AS WELL AS ANY OTHER INTELLECTUAL PROPERTY LAWS. THIS PRODUCT IS LICENSED AND NOT SOLD.
“Access Credentials” means username and password, and any other necessary security keys or credentials provided by Licensor to grant access to the Product and use the Service.
“Authorized Users” means Licensee’s employees, contractors, or collaborators permitted to access the Product and use the Service on Licensee’s behalf in accordance with this Agreement.
“Confidential Information” means any and all nonpublic information of any type and form obtained by either party pursuant to or concerning this Agreement that is designated or identified as “Confidential” or “Proprietary” or similar marking or would reasonably be regarded as being of confidential nature. Confidential Information shall include without limitation, information concerning business models and strategies, network design and traffic, customers, the business, financial affairs, pricing, and requirements of the Discloser. The term “Confidential Information” shall not include information that: (a) was in Recipient’s possession before receipt from Discloser; (b) is independently developed by or for Recipient without reference to Discloser’s Confidential Information; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; or (d) is or becomes available to the public through no fault of Recipient.
“Discloser” means the party disclosing Confidential Information under this Agreement.
“Intellectual Property” means any and all any and all intellectual property rights in any jurisdiction throughout the world, including (a) works of authorship (whether or not copyrightable), moral rights, databases, data collections, designs, and copyrights (in both published works and unpublished works), including applications, registrations, and renewals in connection therewith; (b) formulas, patterns, compilations, programs, devices, know-how, concepts, methods, techniques, or processes, inventions and improvements to any of the foregoing (whether or not patentable or reduced to practice), including patents, patent applications, invention disclosures, together with all related reissuances, continuations, continuations-in-part, revisions, divisions, renewals, extensions, and reexaminations thereof; (c) trade names, trademarks, service marks, trade dress, logos, slogans, corporate names, and other similar designations of source or origin, and all common law rights, applications for registration, registrations of, and renewals in connection with the foregoing, together with all goodwill associated therewith; and (d) trade secrets and other Confidential Information.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Order Form” means any ordering document (including online checkout) referencing this Agreement that specifies license scope, scope of the Service, Term, Fees, and other commercial terms.
“Output” means the creative output, choreography plans, movement sequences, timing, notes, cues, instructions, and other content Licensee creates by submitting Choreography Input (defined below) to the Product.
“Recipient” means the party receiving Confidential Information under this Agreement.
“Third-Party Platform” means the third-party platform Unreal Engine on which the Product operates as a plug-in or integration and through which Licensee can access the Product and use the Service.
Service. The Product is designed to process choreography in the form of video, images, information, data, text, music, sound, and other audio, photographs, graphics, messages, and other materials (collectively referred to as “Choreography Input”) and multiply and sequence such input to generate Outputs (the “Service”).
License to the Product. Subject to compliance with the terms and conditions set forth in this Agreement and payment of applicable Fees as set forth in Section 8 and on the Order Form, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable (subject to Section 13(g)), non-sublicensable license, during the Term and solely by and through its Authorized Users, to use the Product solely (a) in the Product’s object code form, (b) for Licensee’s internal business or professional purposes in connection with the Third-Party Platform, and (c) within the scope of the Service set forth in Section 2(a) and the applicable Order Form.
Product Access. Licensor may provide Access Credentials to Licensee that enable use of the Service during the Term. Licensor may terminate or revoke any such credentials for material breach of this Agreement. Licensee may not sell, transfer, sublicense, or disclose its Access Credentials to any third party.
Use Restrictions. Except as authorized by this Agreement, Licensee shall not (and shall not permit any person to):
Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property in or relating to, the Product or Service, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to Product and Service are and will remain with Licensor and the respective rights holders.
Separate Account Required. The Product is a plug-in for a Third-Party Platform. Licensee is responsible for maintaining its own valid account, license, and technical compatibility for the Third-Party Platform to use the Product.
No Affiliation; Separate Terms. Licensor is not affiliated with, responsible for, or liable for the Third-Party Platform. Licensee’s use of the Third-Party Platform is governed by its own terms and privacy policy, which are separate from this Agreement. Licensee’s use of the Service will be in accordance with the Third-Party Platform’s terms.
API/Integration Changes. The Service may depend on the Third-Party Platform’s APIs/SDKs. Licensor is not responsible for disruptions caused by Third-Party Platform changes, outages, or deprecations. Licensor may modify the Product to maintain compatibility but has no obligation to do so.
No Support. This Agreement does not entitle Licensee to any support for the Product.
Updates. Licensor, at its sole discretion, may change, add, or remove features from the Service (collectively, “Updates”). Any such Updates that are provided to Licensee become a part of the Product, as appropriate, and are subject to the terms and conditions of this Agreement, unless those other Updates are covered under a separate license, in which case the terms of that license will govern. Updates may adversely affect the Service.
Right to Modify. Licensor reserves the right to modify, suspend or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Licensee hereby agrees that Licensor will not be liable to Licensee or to any third party for any modification, suspension or discontinuance of the Service.
Product Intellectual Property. The Parties agree and acknowledge that, as between the Parties, Licensor is the sole and exclusive owner of all right, title, and interest in and to the Product and Service including all Intellectual Property Rights relating thereto (“Product IP”). Licensee hereby unconditionally and irrevocably assigns to Licensor its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Product IP (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise. Licensee shall safeguard the Product from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property in the Product IP and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property.
Licensee Ownership; License to Licensor. As between Licensee and Licensor, Licensee owns all right, title, and interest in and to the Choreography Input and related Outputs (excluding any Product IP embedded in or provided with the Service). Licensee hereby grants Licensor a limited, non-exclusive license to use Choreography Input and Outputs generated by Licensee solely to provide, maintain, secure, and support the Product (e.g., to process and render features requested by Licensee, provide technical support, and perform debugging).
Usage Data. Licensor may collect technical and usage data relating to the operation, performance, and use of the Product, such as feature usage metrics, error logs, and system information. Such data is used only to maintain and improve the Service; diagnose technical issues; and support security and compliance efforts. Usage data is not used to create or infer choreographic works or to claim ownership over the Outputs.
Feedback. If Licensee provides feedback, suggestions, or ideas regarding the Service (“Feedback”), Licensee grants Licensor a worldwide, perpetual, irrevocable, royalty-free license to use and exploit such Feedback for any purpose without restriction or compensation.
No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any right, title, or interest in the Product IP.
Acknowledgement. The parties acknowledge and agree that in the course of their duties under this Agreement, they may receive or have access to Confidential Information of the other party. Licensee acknowledges that the Product contains Confidential Information of Licensor’s business. The terms, but not the existence, of this Agreement is Confidential Information of Licensor’s business. The parties further acknowledge and agree that they shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Confidential Information and be responsible for the unauthorized collection, receipt, transmission, access, storage disposal, use and disclosure of the Confidential Information under its control or in its possession.
Use and Non-disclosure. During the Term and for four (4) years after the termination or expiration of this Agreement, Recipient shall not make use of Discloser’s Confidential Information for purposes other than the performance of Recipient’s rights and obligations under this Agreement. Recipient shall protect Discloser’s Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care. Recipient shall only disclose the Confidential Information to its employees, contractors, and, in the case of Licensee, its Authorized Users, who have a need to know such Confidential Information to perform its obligations or exercise its rights under this Agreement.
Compelled Disclosure. In the event Recipient is required under applicable Law or court order to disclose any of the Confidential Information, Recipient shall first give Discloser notice of the required disclosure and cooperate with Discloser, at Discloser’s expense, in seeking reasonable protective arrangements to limit the volume of Confidential Information to be disclosed. However, notwithstanding the foregoing, in no event shall Recipient be required to act in a manner that would violate laws, regulations, or court orders, or result in sanctions or other penalties.
Protections. Licensee shall:
Remedy. Licensee acknowledges and agrees that unauthorized disclosure, use or copying of the Product IP may cause Licensor serious financial loss. Accordingly, in the event of any unauthorized disclosure, use or copying of the Product IP, Licensee agrees that Licensor shall have the right to seek injunctive or other equitable relief.
Security. Licensor employs commercially reasonable technical and organizational safeguards designed to protect data processed by Licensor in connection with the Product, which may include access controls, encryption in transit, and internal operational policies. Notwithstanding the foregoing, no system is completely secure, and Licensor does not guarantee that unauthorized access, disclosure, or loss of data will never occur.
Processing of Choreography Input. Licensor does not claim ownership of, and does not monitor the creative substance of, the Choreography Input and Outputs. Licensor processes Choreography Input and Outputs solely to:
No Personal or Unethical Information. Licensee shall agree not to upload, input, or process sensitive personal information or unethical information through the Service, including government-issued identification numbers, biometric identifiers, health information, or financial account data. Licensee has no responsibility for such data if submitted in violation of this provision.
Limited Disclosure of Licensee Materials. Licensor shall not use Licensee’s Choreography Input and Outputs for advertising, marketing, or creative reuse without receiving written permission from Licensee, and does not disclose such materials to third parties, except as required to provide the Service or as required by Law.
Third-Party Platform Data. Data originating in or passing through the Third-Party Platform is subject to the Third-Party Platform’s terms and policies. Licensor is not responsible for third-party data practices.
Three different subscriptions of the Service are available for purchase. Licensee shall pay Licensor the fees, including all taxes thereon, in advance in the manner set forth in the Order Form (“Fees”). Fees are non-refundable, except in the limited instance set forth in Section 12(a). Any renewal of the license granted hereunder shall not be effective until the Fees for such renewal have been paid in full.
Subscription Term. This Agreement shall remain in force during the term of the subscription period provided in the Order Form, unless terminated prior as set forth herein (the “Term”).
Termination by Licensee. Licensee may terminate this Agreement by ceasing to use the Service.
Termination by Licensor. Licensor may terminate this Agreement, effective upon written notice to Licensee, if:
Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Service. No expiration or termination shall affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 9(c)(ii).
Mutual Representations and Warranties. Each party represents, warrants, and covenants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of its jurisdiction; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
Licensee Representations and Warranties. Licensee represents and warrants that:
Licensor Representations and Warranties. Licensor represents and warrants that the Service is not infringing any Intellectual Property or other proprietary rights of a third party.
Disclaimer. THE PRODUCT AND SERVICE, AND ANY OTHER INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY LICENSOR TO LICENSEE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR VERBAL, STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
Licensor’s entire liability to Licensee for damages concerning performance or nonperformance by Licensor or in any way arising from or related to this Agreement, regardless of whether the claim for such damages is based in contract, tort, strict liability or otherwise, shall not exceed the amounts received by Licensor under this Agreement. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST DATA OR LOST BUSINESS, OR ANY OTHER INDIRECT DAMAGES, EVEN IF LICENSOR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. Licensor shall have no liability with respect to claims relating to or arising from the use of the Third-Party Platform, even if Licensor has recommended such product or service. The limitations and exclusions set forth in this Section 11 shall not apply to the grossly negligent acts or omissions or willful conduct of Licensee in performing its obligations under this Agreement.
Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Licensee from and against all claims, demands, liabilities, causes of action, debts or damages (including reasonable legal fees and expenses) arising out of or in connection with third-party claims resulting from (i) any actual or alleged breach by Licensor of any representation or warranty under this Agreement; or (ii) any allegation that the Service infringes or misappropriates any third-party Intellectual Property (“IP Claim”). Licensor’s obligation under this Section is conditioned upon Licensee (x) promptly notifying Licensor in writing of the claim, (y) reasonably cooperating with Licensor, at Licensor’s expense, and (z) allowing Licensor sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole expense, to (aa) modify or replace the Service, or component or part thereof, to make it non-infringing, or (bb) obtain the right for Licensee to continue use. If neither of these alternatives are commercially reasonable, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee, provided that Licensor shall refund or credit to Licensee all Fees paid in respect of the Service.
Limit on IP Claims. Notwithstanding the foregoing, Licensor shall have no obligation to indemnify IP Claims that arise from the combination, operation, or use of the Product or Service in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee’s use; or the use of the Service after Licensee becomes aware of any allegation of infringement or misappropriation; negligence, abuse, misapplication, or misuse of the Service by or on behalf of Licensee; or use of the Product or Service by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions.
Indemnification by Licensee. Licensee shall indemnify, defend, and hold harmless Licensor and its affiliates, and their respective officers, directors, employees, and agents, from and against any and all claims, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable legal fees and expenses) arising out of or relating to any third-party claim resulting from: (i) any actual or alleged breach by Licensee of this Agreement; (ii) any unauthorized, negligent, or improper access to, use of, or disclosure of Confidential Information of Licensor, or the Product or Service by Licensee or its Authorized Users; (iii) Licensee’s misuse, alteration, or unauthorized combination, integration, or deployment of the Product; or (iv) Licensee’s acts or omissions giving rise to claims of bodily injury, property damage, or workplace issues allegedly resulting from Licensee’s use of the Service or Outputs. Licensor’s right to indemnification under this Section 12(c) is conditioned upon Licensor (x) promptly notifying Licensee in writing of the claim; (y) providing Licensee with reasonable cooperation, at Licensee’s expense; and (z) permitting Licensee to control the defense and settlement of the claim, provided that Licensee may not settle any claim in a manner that imposes any admission of liability, injunctive obligation, or other material obligation on Licensor without Licensor’s prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
Amendments; Waivers. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
Headings. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and shall not be used in any way to construe or interpret this Agreement.
Unenforceability; Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fires, floods, earthquakes, health epidemics or pandemics, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions, or any similar causes beyond the reasonable control of Licensor.
Special Notice for International Use; Export Controls. Licensor is headquartered in the United States. Whether inside or outside of the United States, Licensee is solely responsible for ensuring compliance with the laws of its specific jurisdiction. The Product and the transmission of applicable data, if any, is subject to United States export controls. No Product may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading, accessing or using the Product or the Service is at Licensee’s sole risk.
Assignment. Licensee may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Licensor; provided that this Agreement may be assigned by operation of Law or otherwise in connection with a merger, consolidation, or sale of all or substantially all the assets or equity interests of Licensee.
Governing Law; Jurisdiction. This Agreement is to be construed in accordance with and governed exclusively by the laws of the State of New York, United States of America, without giving effect to the conflict of laws principles or choice-of-law provisions therein. The state courts of the State of New York in and for New York County, and, if the jurisdictional prerequisites exist, the United States District Court for the Southern District of New York, will have sole and exclusive jurisdiction to hear and determine any dispute or controversy arising under or relating to this Agreement. Each party irrevocably consents to and waives any objection to the personal jurisdiction and venue of such courts, and irrevocably consents to the service of legal process in accordance with the rules of such courts or, alternatively, in the same manner prescribed for serving notices under Section 13(l).
No Waiver. No course of dealing, course of performance or failure of either party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of any other term, right or condition. No waiver or breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision.
Independent Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Licensor and Licensee are independent contractors.
No Third-Party Beneficiaries. No third party is a beneficiary of this Agreement. No one other than a party, their successors, and permitted assignees shall have any right to enforce any of the terms of this Agreement.
Notices. All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile). All communications will be deemed to have been received on the date actually received. All notices shall be sent to the address and person specified on the Order Form (or to such other person or address as may be designated by a party by giving written notice to the other party pursuant to this Section 13(l)).