EMBODIED PRODUCT(S) END USER LICENSE AGREEMENT FOR EMBODIED PRODUCTS (“Product EULA”)
EMBODIED PRODUCT(S) END-USER LICENSE AGREEMENT
Last Updated: September 7, 2020
This Embodied Product End User License Agreement (“Product EULA” or “License”) is an agreement between You and Embodied, Inc. (“Embodied” or “The Company”). This License governs the software that is embedded in the Embodied Moxie robot and/or that is located in cloud-based server computing devices, the Embodied.com web site and/or the Global Robotics Laboratory web site (collectively the “Embodied Product(s)), and/or any and all related documentation, updates, patches and upgrades that replace or supplement any or all of the Embodied Product(s) in any respect and which are not distributed with a separate license. This Embodied Product EULA is separate and apart from the Embodied Moxie Parent App End User License Agreement (“Parent App EULA”).
FOR PURPOSES OF THIS LICENSE, “EMBODIED,” “COMPANY BRANDS,” “THE COMPANY,” "US", "WE" OR "OUR" MEANS AND INCLUDES EMBODIED AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES AND ASSIGNS. “SERVICES” MEANS the provision of Digital Content, Software, and support FOR DEVICE FUNCTIONS that we provide. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE PRODUCT SOFTWARE OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO YOUR CHILDREN), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE PRODUCT SOFTWARE OR PERSONALLY UTILIZES THE SERVICES. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN, OR ANY CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION USING THE EMBODIED PRODUCT(S). BY CREATING AN ACCOUNT AND ACCESSING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU: A) ARE AUTHORIZED TO PROVIDE CONSENT FOR YOUR CHILD; AND B) ARE SOLELY RESPONSIBLE FOR ALL ACTIVITY UNDER YOUR ACCOUNT.
BY USING THE EMBODIED PRODUCT(S), YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE.
FOR CHILDREN UNDER 18, THE EMBODIED PRODUCT(S)IS DESIGNED FOR PARENTS OR GUARDIANS AND/OR UTILIZATION BY THEIR CHILDREN. THUS, IF YOU ARE A CHILD, IF YOU HAVE NOT REACHED THE AGE OF MAJORITY AND/OR AGE PERMITTING YOU TO FORM A CONTRACT IN YOUR JURISDICTION, YOU MUST HAVE A PARENT OR LEGAL GUARDIAN READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE ON YOUR BEHALF AND TAKE FULL RESPONSIBILITY FOR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.
By consenting to this License, downloading, interfacing with, and/or using the Embodied Product(s), or allowing it to be downloaded, utilized, and/or used, You acknowledge that:
a) You are at least 18 years of age or any other legal age required to form a contract in Your jurisdiction;
b) You have the right, authority and legal capacity to enter into this License;
c) You have read, understood and agree to be bound by the terms and conditions of this License with respect to Yourself and any other user, including, but not limited to, a minor child; and
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE EMBODIED PRODUCT(S). IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE EMBODIED PRODUCT(S).
AS DESCRIBED BELOW, THE SELECTIONS BELOW DESCRIBES IMPORTANT LIMITATIONS OF THE EMBODIED PRODUCT(S) AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
The Application is licensed to You, not sold.
All rights not specifically granted under this License are reserved to Embodied and, as applicable, Embodied’s licensors.
Your use of the Embodied Product(s) is limited to the rights expressly granted to You by this License. You acknowledge and agree that You shall not use the Embodied Product(s) for any purpose other than for non-commercial personal enjoyment, educational or entertainment purposes, and that You shall use the Embodied Product(s) in accordance with all applicable laws, rules and regulations. Any commercial use is strictly prohibited.
Except as expressly provided in this License, You shall not and shall not permit, encourage or support any third party to do the following:
a) Exploit the Embodied Product(s) or any parts of the Embodied Product(s) commercially.
b) Use the Embodied Product(s), or permit it to be used, on more than one device simultaneously.
c) Make copies of the Embodied Product(s) or any part of the Embodied Product(s), or make copies of any materials accompanying the Embodied Product(s).
d) Sell, rent, lease, license, sub-license, distribute or otherwise transfer the Embodied Product(s), or any copies of the Embodied Product(s), or any rights to use the Embodied Product(s), without the express prior written consent of Embodied.
e) Copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Embodied Product(s) or of any component of the Embodied Product(s), in whole or in part.
f) Modify, remove, disable or circumvent any proprietary notices or labels, product identification, copyright, logo, trademark, or any other intellectual property notices contained on or within the Embodied Product(s).
g) Export the Embodied Product(s) or any copy or adaptation of the Embodied Product(s) in violation of any applicable laws or regulations.
h) Use portions of the Embodied Product(s) not made available to You or attempt to access and violate the security of the Application.
i) Use the Embodied Product(s) in violation of any applicable laws and regulations.
Any attempt to do any of the above prohibited actions is a violation of the rights of Embodied and its licensors and may subject You to prosecution and the obligation to penalties, including, but not limited to, payment of damages.
All title, ownership rights and intellectual property rights in and to the Embodied Product(s) (including, but not limited to, any patches and updates) and any and all copies thereof (including, but not limited to, any titles, computer code, themes, objects, characters, character names, stories, text, dialog, catch phrases, locations, concepts, artwork, animation, sounds, musical compositions, music, audio-visual effects, images, photographs, methods of operation, moral rights, any related documentation, and “applets” incorporated into the Embodied Product(s)) are owned by Embodied or licensors of Embodied. The Product Software is protected by the copyright laws of the United States by international copyright treaties, and by conventions and other laws. You acknowledge that Embodied owns all rights in and to the Embodied Product(s), including, but not limited to worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and “moral rights;” (c) the protection of trade and industrial secrets and confidential information; (d) trademarks; and (e) divisions, continuations, renewals, derivative works, and re-issuances of any of the foregoing, now existing or acquired in the future.
3) User Accounts
To access or use the Embodied Product(s) and the Services, You must become a registered user and open an account and/or log in to Your existing account with the Company (“Your Account”). User Accounts are subject to the terms and conditions of the Embodied Product(s), the Parent Application or other online service (“Account Terms”). Your decision to provide information required to establish Your Account is purely voluntary, but if You choose not to provide it, You may not be able to access the Embodied Product(s), the Services or many of the services of Embodied Moxie. You may be permitted to save certain information through Your Account in connection with your use of this Embodied Product(s). Any information saved through Your Account will be subject to the Account Terms. By creating an Account and accessing the Services, you acknowledge and agree that you a) are authorized to provide consent for Your Children and b) are solely responsible for all activity of You and Your Children under Your Account.
4) Consent to Use of Data
Company may, in its sole discretion, update or modify the Embodied Product(s) to improve the user experience or for other business purposes. Embodied reserves the right to make these updates or modifications with or without prior notice to You and will not be held liable to You for such updates or modifications and their resulting loss of use of the Embodied Product(s) or related connected device. Please note that You may need to update Your version of the Embodied Product(s) to continue using the Embodied Product(s) and that failure to do so may limit Your ability to use the connected device.
6) Third-Party Components
The Embodied Product(s) may include software, content, data or other materials that are owned by persons other than Embodied (“Third-Party Components”) and are subject to license terms that accompany such Third-Party Components and you acknowledge and agree that these accompanying license terms govern their use. Nothing in this Embodied Product(s) EULA limits your rights under, or grants you rights that supersede, the license terms that accompany any Third-Party Components. You are bound by and shall comply with all license terms for such Third-Party Components and any breach by you of any Third-Party Component license shall also be a breach of this Embodied Product(s) EULA.
For your convenience, Embodied may provide a list of the Third-Party Components contained in the Product Software at the following address (www.embodied.com/pages/open-source-legal-notice). If required by any license for a particular Third-Party Component, Embodied makes the source code to such Third-Party Component, and any of Embodied’s modifications to such Third-Party Component as required, available by written request to Embodied at: firstname.lastname@example.org or 385 E. Colorado Blvd., Suite 110, Pasadena, CA 91101 or by providing you with the vendor’s name who wrote the software that is incorporated in the Embodied Product(s).
THE THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. EMBODIED AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES REGARDING THE SECURITY, QUIET POSSESSION, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES.
7) Access Fees
You must provide at Your own expense the equipment, Internet connection, devices, and service plans necessary to access and use the Embodied Product(s). An Internet connection may be required to use certain portions of the Embodied Product(s). Embodied does not guarantee that the Embodied Product(s) can be accessed and used on all devices and wireless service plans, nor does it guarantee that the Embodied Product(s) is available in all geographic locations. When You use the Embodied Product(s), Your wireless service provider may subject You to fees for data and/or wireless access. You acknowledge and agree that You are solely responsible for any costs You may incur to access the Embodied Product(s).
8) No Warranty
YOUR USE OF THE Embodied Product(s) AND SERVICES IS AT YOUR SOLE RISK.
THIS Embodied Product(s) AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors (including the Platform Provider), licensees, contractors, customers, affiliates, successors, and assigns (collectively, “Company Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied as to:
- The Embodied Product(s);
- The Services, functions, features, or any other elements in, or made accessible through, the Embodied Product(s);
- Any products, other services, or instructions offered or referenced at or linked through the Embodied Product(s) or Services (except for any specific warranties provided in additional terms provided by a Company Party who is also a product manufacturer that are included with a product that You purchase from Us);
- Whether the Embodied Product(s) is free from any harmful components (including viruses, Trojan horses, and other technologies) that could adversely affect Your device;
- Whether the information (including any instructions) in the Embodied Product(s) or Services is accurate, complete, correct, adequate, useful, timely, or reliable;
- Whether any defects to the Embodied Product(s) will be repaired; and
Whether Your use of the Embodied Product(s) or Services is lawful in any particular jurisdiction.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY FURTHER HEREBY DISCLAIMs ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS, HACKING OR SECURITY VULNERABILITIES. FURTHER, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE INCLUDED WITH THE PRODUCT SOFTWARE. TO THE EXTENT A WARRANTY MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9) Limitation of Liability
UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- the Embodied Product(s) or Services;
- Your use of or inability to use Embodied Product(s), or the performance of the Embodied Product(s);
- any action taken in connection with an investigation by Company or law enforcement authorities regarding Your access to or use of the Embodied Product(s);
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Embodied Product(s) technical operation; or
- any damage to Your device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company was advised of or should have known of the possibility of such losses or damages, regardless of whether You bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Embodied Product(s)). Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to You.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE EMBODIED PRODUCT(S) AND SERVICES AND YOUR RIGHTS UNDER THIS EMBODIED PRODUCT(S) EULA, IN NO EVENT, SHALL EMBODIED’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT YOU PAID FOR THE EMBODIED SERVICES (OR PRODUCTS) ON WHICH THE CLAIM IS BASED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY THE COMPANY AS THE SELER OF A PHYSICAL PRODUCT.
With respect to any electronic commercial service on a Company website, residents of California are entitled to the following specific consumer rights information: if You have a complaint, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
10) Injunctive Relief
You agree that Your breach of this License will cause irreparable injury to Embodied for which monetary damages would not be an adequate remedy. Embodied shall be entitled to seek equitable relief from You in addition to the other remedies it may have by this License or under the applicable law.
You agree to indemnify, defend and hold harmless Embodied and our subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including reasonable attorneys’ fees), made by any third-party that directly or indirectly, arise from or related to any claim, suit, action, demand or proceeding made or brought against Embodied, or on account of the defense, settlement or investigation, thereof on account of a) your breach or anticipatory breach of this License or the documents they incorporate by reference; b) all damages, losses and expenses arising directly or indirectly from You acts and omissions to act in using the Embodied Product(s) pursuant to the terms and conditions of this License; c) your violation or anticipatory breach of any law or the rights of a third-party; and d) information or material transmitted through your computing device, even if not submitted by you, that infringes or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; or e) any misrepresentation made by you (collectively “Claims”). You agree to cooperate as fully required by Embodied in the defense of any Claims. Embodied retains the right to unilaterally make decisions on settlements, compromise and payment of Claims and related losses. Embodied reserves the right to assume the exclusive defense and control of any Claims. You will not settle any Claims without the prior written consent of Embodied, an officer thereof, and authorized Embodied legal counsel.
13) Third Party Applications/Devices
If You access the Embodied Product(s) using an Apple iOS or Android-powered device, then Apple Inc., or Google LLC, respectively, will be a third-party beneficiary to this agreement. However, these third-party beneficiaries are not a party to this contract and are not responsible for the provision or support of the Embodied Product(s). You agree that Your access to the Embodied Product(s) using these devices also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
14) Term & Termination
This License shall commence on the date You activate the Embodied Product(s) (and/or the Product Software) and shall continue to be in force and effect for as long as You do not dispose of the Embodied Product(s) and as You comply with this License. Your rights under this License will terminate automatically without any notice from Embodied in the event that You fail to comply with any of the terms and conditions of this License. Upon termination of this License, You shall cease all use of the Embodied Product(s). Additionally, Embodied and/or its licensors, reserve the right to change, suspend, remove, or disable access to the Embodied Product(s) or the subscription options at any time without notice. In no event will Embodied be liable for the removal of or disabling of access to the Embodied Product(s). You agree that Embodied shall not be liable for any loss or damage caused, directly or indirectly, by any such termination and/or suspension.
15) Severability and Survival
If any provision of this License is declared or deemed illegal, unenforceable or invalid under applicable law, this provision shall be considered invalid, but all unaffected provisions will be applied within the limits of the law. Embodied’s failure to enforce any provision of this License shall not constitute a waiver of such provision.
Embodied may assign this License, in whole or in part, at any time without notice to or consent by You.
You acknowledge that You may not assign, transfer or sublicense any or all of Your rights or obligations under this License without the express prior written consent of Embodied.
17) Governing Law
The laws of California govern this License and Your use of the Product Software. Your use of the Embodied Product(s) may be also be subject to other local, state, national, or international laws.
18) Export Laws
You agree to abide by the export laws applicable in the U.S. as well as any other applicable export laws and You agree not to transfer the Embodied Product(s) to any foreign national or national destination, which is prohibited by such laws.
You hereby certify that You are not a person with whom Embodied is prohibited from transacting business under applicable laws. Furthermore, You represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
19) Dispute Resolution
20) Terms For Apple iPhone, iPod Touch and iPad End Users
These terms supplement and are in addition to the terms of the License for users who utilize the Embodied Product(s) and/or Product Software on Apple, Inc. (“Apple”) iPhone, iPod Touch, Apple TV and/or iPad products (collectively the “Apple Devices”).
a) You acknowledge and agree that this License is concluded between You and Embodied only, not Apple; b) By installing and/or utilize the Embodied Product(s), provided that You fully comply with the terms and conditions of this License, You are acquiring and Embodied grants You a personal, limited, non-exclusive and non-transferable license to use the Embodied Product(s) to interface with authorized Apple Devices for personal, non-commercial use, and subject to the Apple Terms and Conditions (also referred to as the Usage Rules) set forth in the App Store Terms of Service and c) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Embodied Product(s).
21) Additional Terms for the Subscription Program
Embodied may, in its sole and absolute discretion, change this License from time to time. Therefore, You agree to review it frequently by visiting the link in the legal tab on the Embodied website: www.embodied.com/pages/Product-EULA. Your continued use of the Embodied Products and/or Product Software will signify Your acceptance of the changes to this License as changed. If You object to any such changes, Your sole recourse will be to stop using the Embodied Products and/or Product Software.
If for any reason any provision of this License is found to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected in that provision, and the remainder of this License shall continue in full force and effect.
The section titles in this License are for convenience only and have no legal or contractual effect. The terms of this License which by their nature should survive the termination of this License shall survive such termination. This License is personal to You and is not assignable, transferable or sublicensable by You except with our prior written consent. We may assign, transfer or delegate our rights and obligations under this License without consent from You.
24) Embodied Intellectual Property Notice
Please refer to the Legal web link (www.embodied.com/pages/IP-Notice) for the Embodied Intellectual Property Notice.
25) Entire Agreement
26) Contact Information
For any questions regarding this Embodied Product(s) EULA, please contact us at:
27) Claims of Infringement
For any claims of infringement or any legal inquiries, please contact:
Attn: Legal Department
385 E. Colorado Blvd., Suite 110
Pasadena, CA 91105