Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of the Software, which includes the RealityScan application and related image files and models. By downloading or using the Software, or by otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this Software.
If your primary residence (or primary place of business, if you are a legal entity like a corporation or an academic institution) is in the United States of America, your agreement is with Epic Games, Inc. If it is not in the United States of America, your agreement is with Epic Games Commerce GmbH. Licensor is solely responsible for the Software and the content thereof.
THE SOFTWARE IS NOT INTENDED FOR USERS UNDER THE AGE OF 18. Users under the age of 18 are prohibited from using the Software.
Certain words or phrases are defined to have certain meanings when used in this Agreement. Those words and phrases are defined below in Section 12.
NOTE: THIS AGREEMENT IS SUBJECT TO A WAIVER OF CLASS ACTION RIGHTS, AS DETAILED IN SECTION 8.
1.1 Software License. Licensor grants you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use the Software for any lawful purpose (the “License”).
1.2 Restrictions and Limitations.
The rights that Licensor grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.
The License becomes effective on the date you accept this Agreement. The Software is licensed, not sold, to you under the License. The License does not grant you any title or ownership in the Software.
You may not do any of the following with respect to the Software or any of their parts: (a) copy, reproduce, display, perform, or otherwise use it in a way that is not expressly authorized in this Agreement; (b) sell, rent, lease, license, distribute, or otherwise transfer it; (c) allow a third party to use it; (d) make it available to third parties on a software-as-a-service, hosted service, time-sharing, service bureau or similar basis, (e) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (f) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (g) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; or (h) use, export, or re-export it in violation of any applicable law or regulation.
Licensor may provide patches, updates, or upgrades to the Software that must be installed in order for you to continue to use the Software. Licensor may update the Software remotely without notifying you, and you hereby consent to Licensor applying patches, updates, and upgrades. Licensor may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software. Licensor does not have any maintenance or support obligations with respect to the Software, and Licensor does not have any obligation to make any patches, updates, or upgrades of the Software available, nor does Licensor have any obligation to continue to make available for access or download any or all versions of the Software.
If you provide Licensor with any Feedback, you hereby grant Licensor a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to use, reproduce, distribute, modify, adapt, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation in any country.
You also hereby grant Licensor a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to retain, reproduce, modify and otherwise use the photos, videos, images and other scans you capture with or otherwise import into the Software and related metadata (“Scans”) for the limited purpose of training and improving the Software and other products and services of Licensor and its affiliates. For clarity, this license does not give Licensor permission to incorporate your Scans into a product, service or advertisement. However, you may opt out of granting this license in the Software’s settings. If you do so, this license will not apply to Scans you capture with or import into the Software after you opt out. Please note that if you uninstall and reinstall the Software, your opt-out settings may not be retained and you may need to opt-out again after reinstallation; otherwise, if your opt-out settings are not retained, this license will apply to Scans you capture with or import into the Software after the reinstallation.
Except for the limited rights granted in Section 3, your use of the Software does not grant to Licensor any right, title, or interest in any of the content that you produce using the Software or any of the content that you import into the Software.
Licensor and its licensors own all title, ownership rights, and intellectual property rights in the Software. The Capturing Reality logo is a trademark of Licensor. All rights granted to you under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
The Software are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Licensor , its affiliates, and its and their licensors and service providers (collectively, the “Licensor Parties”) disclaim all representations, warranties and conditions (whether express or implied) with respect to the Software, including without limitation regarding non-infringement, merchantability, or fitness or suitability for any purpose (whether or not Licensor knows or has reason to know of any such purpose), whether arising under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, the Licensor Parties make no warranty that (1) the Software will operate properly, (2) the operation of the Software will be uninterrupted or free of bugs, errors, or malware (such as viruses), or (3) any defects in the Software can or will be corrected. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, the Licensor Parties shall not be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages arising out of or in connection with this Agreement, the Software, even if a Licensor Party has been advised of the possibility of such damages. Further, to the maximum extent permitted by applicable law, the aggregate liability of the Licensor Parties arising out of or in connection with this Agreement or the Software will not exceed the greater of (A) the total amounts you have paid (if any) to Licensor for the particular Software to which the liability relates during the twelve (12) months immediately preceding the events giving rise to such liability or (B) Five Hundred Dollars (USD $500). These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations shall apply only to the extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in this Agreement will prejudice the statutory rights that you may have as a consumer of the Software. To the extent any product warranty exists for the Software under applicable law that cannot be disclaimed, Licensor will be solely responsible for such warranty.
Without limiting any other rights of Licensor, this Agreement will terminate automatically without notice if you fail to comply with any of its terms and conditions. You may also terminate this Agreement by deleting all copies of the Software. Upon any termination, the License will automatically terminate, you may no longer exercise any of the rights granted to you by the License, and you must destroy all copies of the Software in your possession.
Sections 1.2, 3, and 5-20 will survive any termination of this Agreement.
You agree that this Agreement will be deemed to have been made and executed in the State of North Carolina, U.S.A., and any dispute will be resolved in accordance with the laws of North Carolina, excluding that body of law related to choice of laws, and of the United States of America. Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute must be brought in the Superior Court of Wake County, State of North Carolina or the United States District Court for the Eastern District of North Carolina. You agree to the exclusive jurisdiction and venue of these courts. You waive any claim of inconvenient forum and any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement.
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Software or this Agreement. You also agree not to seek to combine any action or arbitration related to the Software or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
The Software is a “Commercial Item” (as defined at 48 C.F.R. §2.101), consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). The Software is being licensed to U.S. Government end users only as Commercial Items and with only those rights as are granted to other licensees under this Agreement.
You agree to comply with all applicable federal and foreign laws, regulations, and rules, and complete any required undertakings. You will obtain any necessary export license or other governmental approval prior to accessing, downloading, exporting, re-exporting, or releasing the Licensed Technology. You represent and warrant to Licensor that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
Licensor may issue an amended Agreement at any time in its discretion by posting the amended Agreement on its website or by providing you with digital access to the amended Agreement through the Software or other means. You are not required to accept the amended Agreement. However, in order to download or use a new version of the Software, you must accept the amended Agreement. If you do not accept the amended Agreement, you may not download or use any new version of the Software that is made available by Licensor contemporaneously with or after the issuance of that amended Agreement (but this will not terminate your license for the Software that you downloaded prior to the issuance of the amended Agreement). By using any new version of the Software after the amended Agreement becomes effective or otherwise indicating your acceptance of the amended Agreement, you are agreeing to be bound by the terms of the amended Agreement.
You may not, without the prior written consent of Licensor, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. If restrictions on transfer of the Software in this Agreement are not enforceable under the law of your country, then this Agreement will be binding on any transferee of the Software. Licensor may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement without notice to you.
As used in this Agreement, the following capitalized words have the following meanings:
“Feedback” means any feedback or suggestions that you provide to Licensor regarding the Software or other products and services of Licensor or its affiliates.
“Licensor” means, depending on the location of your primary residence or primary place of business:
a. Epic Games, Inc., a Maryland Corporation having its principal business offices at Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A.; or
b. Epic Games Commerce GmbH, having its principal business offices at Platz 3, 6039 Root, Switzerland.
“Software” means Licensor’s proprietary application known as RealityScan. The term “Software” also includes any patches, updates, and upgrades to such Software, and all related content and documentation provided with or for the Software.
“User” means an individual who is an employee or contractor of you or your affiliate.
Licensor is responsible for addressing any claims you or any third party may have relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation. However, nothing in this Agreement shall be deemed an admission that you may have such claims.
In the event of any third party claim that the Software or the your possession and use of the Software infringes that third party’s intellectual property rights, Licensor will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. However, nothing in this Agreement shall be deemed an admission that a third party may have such claims.
You represent and warrant that (i) you is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you not listed on any U.S. Government list of prohibited or restricted parties.
You should direct any questions, complaints or claims you may have with respect to the Software to Licensor at Licensor’s address as specified in Section 12. Or you may contact us at https://support.capturingreality.com/.
You must comply with applicable third party terms of agreement when using the Software (e.g., you must not be in violation of your wireless data service agreement when using the Software).
This section only applies if you are accessing the Software on iOS.
The License granted to you in Section 1.1 may only be exercised on Apple-branded products that you own or control as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software (if any) to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor’s sole responsibility.
Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
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This Agreement constitutes the entire agreement between you and Licensor relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
The original of this Agreement is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions shall be enforced only to the furthest extent possible under applicable law and the remaining terms of this Agreement will remain in full force and effect.
Any act by Licensor to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.
You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.
Licensor’s obligations are subject to existing laws and legal process, and Licensor may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.