This Agreement is a legal document that explains your rights and obligations related to your use of the Software. 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.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND LICENSOR AGREE TO RESOLVE DISPUTES ONLY IN YOUR INDIVIDUAL CAPACITIES AND NOT AS PART OF A CLASS ACTION (SEE SECTION 10). YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THIS WAIVER. BY AGREEING TO THE TERMS OF THIS AGREEMENT, YOU ARE ALSO AGREEING TO CONTRACTUAL TERMS THAT WILL LIMIT SOME OF YOUR LEGAL RIGHTS, INCLUDING A DISCLAIMER OF WARRANTY, AN EXCLUSION OF CERTAIN KINDS OF DAMAGES, AND A LIMITATION OF LIABILITY.
Your use of the Software is also governed by Epic’s Terms of Service, which may be found at https://www.epicgames.com/tos, and Epic’s Privacy Policy, which may be found at https://www.epicgames.com/privacypolicy. By downloading or using the Software, you also agree to Epic's Terms of Service and Privacy Policy.
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 15.
1. License Grant
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.
To export, publish or otherwise share the models and other output you create using the Software, you may need to use other products of Licensor or its affiliates, such as Sketchfab, which may require you to have a Sketchfab account and agree to Sketchfab’s Terms of Use, and which processes personal data as described in Sketchfab’s Privacy Policy.
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; (h) use, export, or re-export it in violation of any applicable law or regulation; or (i) use it as a training input or prompt-based input into any Generative AI Program. “Generative AI Program” means artificial intelligence, machine learning, deep learning, neural networks, or similar technologies designed to automate the generation of or aid in the creation of new content, including but not limited to audio, visual, or text-based content.
2. Updates and Patches
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.
3. Feedback
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. If any such rights may not be licensed under applicable law(such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Licensor is not required to make any use of any Feedback that you provide. You agree that if Licensor makes use of your Feedback, Licensor is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Licensor to grant Licensor and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
4. How Licensor can use Your Scans
4.1 Processing Your Requests.
When you use the Software, you grant Licensor or its affiliates permission to access your relevant data (the “Cloud Input Data”) for the sole purpose of generating 3D models and to store your relevant data for a limited time. You will ensure you do not provide Cloud Input Data unless you have all rights necessary to allow Licensor and its affiliates process it on your behalf and you have provided all required notices and obtained all necessary consents from any individuals whose likeness is captured in the Cloud Input Data as required by applicable law.
4.2. Optional Software Improvement.
If you choose to opt in to the Licensor using your Cloud Input Data or output thereof (the “Scans”) for improvements, you grant Licensor permission (in addition to the permission granted in Section 4.1) to use the Scan to develop, train and improve Licensor’s tools ability to scan 3D objects, materials and scenes (the “Purpose”). Licensor training process includes steps to remove personal information from Scans before training. This License does not permit Licensor to incorporate your Scans into a product, service or advertisement, such as by visually displaying it or distributing it in any Licensor product. You may withdraw your consent at any time in the Software’s settings, and upon opt out Licensor will cease using your future Scans for the Purpose from that moment forward. Scans provided while you were opted in may continue to be used for the Purpose.
5. Ownership
Except for the limited rights granted to Licensor in Sections 3 and 4, 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 RealityScan name and logo are trademarks 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.
6. Disclaimers and Limitation of Liability
The Software is 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.
7. Indemnity
You agree to indemnify, pay the defense costs of, and hold Licensor, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys' fees, costs, and expert witnesses' fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you, or (b) any act or omission by you in using the
Software or Services. You agree to reimburse Licensor on demand for any defense costs incurred by Licensor and any payments made or loss suffered by Licensor, whether in a court judgment or settlement, based on any matter covered by this Section 9.
If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys' fees, costs and expert witnesses' fees) that are the stated subject matter of the indemnification obligation above.
8. Termination
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 5-17 will survive any termination of this Agreement.
9. Governing Law and Jurisdiction
Any dispute or claim by you arising out of or related to this Agreement will be governed by New York law, exclusive of its choice of law rules. You and Licensor agree to submit to the exclusive jurisdiction of the Supreme Court of New York County, New York, or, if federal court jurisdiction exists, the United States District Court for the Southern District of New York. You and Licensor agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as 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 will be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.
10. Class Action Waiver
To the maximum extent permitted by applicable law, you and Licensor agree to only bring disputes arising out of or related to this Agreement in an individual capacity and will not:
● seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
● consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to this Agreement.
You have the right to opt-out of this class action waiver within 30 days of the date on which you first accepted this Agreement unless a longer period is required by applicable law. To exercise this right, you must send written notice of your decision to the following address: Epic Games, Inc., Legal Department, ATTN: CLASS ACTION OPT-OUT, Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A. Your notice must include your name, mailing address, and account name, and state that you wish to opt-out of this class action waiver. To be effective, this notice must be received by Licensor and postmarked or deposited within 30 days of the date on which you first accepted this Agreement. You are responsible for ensuring that Licensor receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt.
11. U.S. Government Matters; Trade Controls
The Software may be considered 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 all end users (including any U.S. Government end users) only as a Commercial Item intended for general use and with only those rights as are granted to other licensees under this Agreement.
You are not eligible to enter into this Agreement and may not download or use the Software if you are, or are acting on behalf of any person or entity that is (i) listed on or otherwise subject to restrictions under, the Specially Designated Nationals and Blocked Persons List or other similar lists maintained by any U.S. government entity pursuant to economic sanctions laws or (ii) located in, organized in, or ordinarily resident in any country or territory that is subject to a U.S. embargo or other legal prohibition against receiving the Software, in each case unless your use of the Software is authorized by U.S. law.
You understand and agree that the Software may not be used, accessed, downloaded, or otherwise exported, reexported, or transferred in violation of applicable export control, economic sanctions, or import laws or regulations, such as the U.S. Export Administration Regulations and U.S. Department of the Treasury’s Office of Foreign Assets Control regulations.
12. Amendments of this Agreement
Licensor may issue an amended Agreement, Terms of Service or Privacy Policy at any time in its discretion by posting the amended Agreement, Terms of Service, or Privacy Policy on its website or by providing you with digital access to the amended versions of any of these documents when you next access the Software. 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.
13. No Undertakings
Notwithstanding anything in the Agreement to the contrary, in no event shall Licensor or any of its affiliates be required to provide any service or support or take any other action that, in the sole judgment of Licensor, could be reasonably expected to (a) require Licensor or any of its affiliates to seek or obtain any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any governmental body or pursuant to any requirement under applicable law or regulations or (b) subject Licensor or any of its affiliates to additional compliance or reporting obligations relating to government procurement or public sector procurement laws or regulations.
14. Assignment
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.
15. Definitions
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 address at Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A.; or
b. Epic Games Commerce GmbH, a Swiss company with limited liability having its principal business offices at Platz 10, 6039 Root D4, Switzerland.
“Software” means Licensor’s proprietary application known as RealityScan Mobile (formerly 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.
16. iOS-specific Terms
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.
17. Miscellaneous
This Agreement and any document or information referred to in this Agreement constitute 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.