SIMSUSHARE END USER LICENSE AGREEMENT (EULA)
This End User License Agreement (this “EULA”) constitutes an agreement between you and Equipment Simulations LLC (“we” or “us”) and governs your use of the SimsUShare™ platform, which includes the Mobile and Desktop Version, as defined below. All of these are collectively referred to in this EULA as “SimsUShare™.” For SimsUshare Mobile (iOS and Android), this EULA will also be deemed to include any additional payment terms and other requirements set forth by the application store (for iOS, the Apple App Store, and for Android, the Google Play Store) through which you purchase our products.
By downloading, installing or using SimsUShare, you acknowledge that you have read, understood, and agree to be bound by and comply with this EULA. If you do not agree to the terms and conditions of this EULA, you are not entitled to use SimsUShare.
SimsUShare™ allows you to create virtual simulations of real-world environments and situations, incorporating content that you provide and content that we provide.
(a) “Desktop Version” means the executable code version of a software application provided by us for use with certain personal computing devices running the Microsoft Windows or Apple OS X operating systems and comprising: (i) simulation-generating software designed to enhance the user’s ability to produce instructional materials; (ii) any associated documentation and services furnished by us; (iii) any of Our Content; and (iv) any updates, upgrades, versions, modifications, derivative works or revisions of the foregoing that we may furnish from time to time in our sole discretion.
(b) “Intellectual Property Rights” means, collectively, all trademarks, service marks, trade dress, logos, copyrights and rights of authorship; all applications, registrations, derivative works and renewals relating to the preceding items; all database rights, moral rights, inventions, rights of inventorship, rights of publicity and privacy, trade secrets, know-how and rights under unfair competition and unfair trade practices laws; and all other worldwide intellectual and industrial property rights related thereto.
(c) “Our Content” means any images, photos, effects, graphics, data, scenarios, text, videos, multimedia content or other materials provided by us by means of SimsUShare™ for use in connection with a Simulation.
(d) “SimsUShare™ Mobile” means the executable code version of a software application provided by us for use with certain mobile and other computing devices running the Google Android or Apple iOS operating systems and comprising: (i) simulation-generating software; (ii) any associated documentation and services furnished by us; (iii) any of Our Content; and (iv) any updates, upgrades, versions, modifications, derivative works or revisions of the foregoing that we may furnish from time to time in our sole discretion.
(e) “Simulation” means any virtual simulation or other content created by means of SimsUShare.
(f) “Your Content” means any images, photos, effects, graphics, data, scenarios, text, videos, multimedia content or other materials provided by you by means of SimsUShare™ for use in connection with a Simulation.
(a) Our License to You. Subject to all of the terms and conditions herein, including your payment of the purchase price for the applicable SimsUShare™ product license, we grant you a non-exclusive, revocable right and license during the subscription period, without a right to assign or sublicense, solely for non-commercial purposes, to: (i) install and use to create Simulations; (ii) to incorporate Your Content and Our Content into such Simulations by means of SimsUShare™; and (iii) to modify, review, use and display Simulations that you create. All rights that we do not expressly grant in this EULA are reserved by us.
(b) Your License to Us. You grant to us and our affiliates, successors, assigns and/or sublicensees a perpetual, irrevocable, royalty-free, worldwide, assignable, transferrable, non-exclusive right and license to reproduce, display, transmit, modify, publish, create derivative works from and otherwise use any of Your Content you provide us in writing or electronic form, in any formats or media now known or hereafter devised, for the purposes of providing you with and/or promoting our services. If we believe at any time, in our sole discretion, that your use of SimsUShare™ or a Simulation breaches any provision of this EULA or could give rise to legal liability, we have the right to require that you cease to use SimsUShare™ and/or the applicable Simulation.
4. USER CONDUCT.
You represent, warrant and agree that you will not:
(a) violate, defeat or circumvent, or attempt to violate, defeat or circumvent, the security of SimsUShare™ or any of our websites, software or equipment;
(b) reverse engineer, modify, decompile or disassemble any portion of SimsUShare™;
(c) copy, distribute, redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer SimsUShare™ or any Simulation;
(d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in SimsUShare™ or any Simulation; or
(e) use SimsUShare™ or any Simulation in a manner that, or provide any content in connection with SimsUShare™ or any Simulation that:
(i) violates any applicable laws, rules, orders, ordinances, regulations, statutes, requirements, codes and/or executive or judicial orders of any international, national, state, municipal or other governmental authorities;
(ii) is harmful, threatening, harassing, discriminatory, tortious, libelous, defamatory, vulgar, obscene, pornographic or otherwise objectionable;
(iii) is intended or likely to promote or facilitate, or aid in any conspiracy or planning in connection with: damage to, or destruction of, property; injury, harm or death of persons; violence; acts of war or terrorism; or creation of any civil disturbance;
(iv) invades another’s right of privacy or publicity; or
(v) infringes, misappropriates or violates any Intellectual Property Rights.
5. PROPRIETARY RIGHTS.
As between you and us, subject to the licenses granted in this EULA: (a) we own all Intellectual Property Rights in SimsUShare™, including Our Content; and (b) you own all Intellectual Property Rights in Your Content.
SimsUShare may contain links to websites that we do not operate. We are not responsible for the content of any such websites, and you should direct any concerns regarding such websites to their respective site administrators or webmasters.
7. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that: (a) you own all Intellectual Property Rights in Your Content and have the right to provide Your Content to SimsUShare™ for use in creating a Simulation and as otherwise contemplated herein; and (b) you are at least eighteen (18) years old.
You agree to indemnify, defend and hold harmless us and our affiliates, and all officers, directors, owners, agents, or licensors thereof (collectively, the “Indemnified Parties“) from and against any and all liability and costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of Your Content, your creation or use of a Simulation, or any breach by you or any user of your account of this EULA, including any representation or warranty herein. You shall cooperate as fully as reasonably required in the defense of any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF SIMSUSHARE™ AND ANY SIMULATIONS AND ANY RELIANCE THEREON. SIMSUSHARE™, OUR CONTENT, AND ANY SIMULATIONS GENERATED THEREWITH ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION OF THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT SIMSUSHARE™ SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY SIMULATION WILL HAVE PREDICTIVE CAPABILITY WHEN APPLIED TO A SPECIFIC SET OF FACTUAL CIRCUMSTANCES. SIMSUSHARE™ AND ANY SIMULATIONS ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. YOU MAY NOT USE OR RELY ON SIMSUSHARE™ OR ANY SIMULATIONS IN SITUATIONS WHERE PERSONAL INJURY, DEATH OR PROPERTY DAMAGE MAY OCCUR.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL WE OR ANY OF OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF, DELAY IN USING, OR INABILITY TO USE SIMSUSHARE™ OR ANY SIMULATIONS. OUR LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID FOR THE SIMSUSHARE™ PRODUCT GIVING RISE TO SUCH LIABILITY.
11. CLASS ACTION WAIVER.
YOU AND WE AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN CONNECTION WITH SIMSUSHARE™, ANY SIMULATION OR THIS EULA WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR WE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR WE ACT OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY, AND THAT NO SUCH PROCEEDINGS WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, US, AND ANY OTHER PARTIES TO ANY SUCH PROCEEDING.
12. EXPORT CONTROLS.
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You agree that you will not export or re-export SimsUShare™ or any Simulation in violation of the laws of the United States or any foreign jurisdiction. You represent and warrant that you are not (a) a national or resident of any country to which the United States has embargoed goods, or (b) on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial and Prohibition Orders. You agree to comply with all export and import laws and restrictions and regulations of the United States or any foreign nation, and not to export, re-export or import SimsUShare™ or any Simulation in violation of such restrictions, laws or regulations.
From time-to-time, we will send out email communication to inform customers about news, updates, and new features or products. By accepting this EULA, you grant us permission to contact you in this capacity. However, with all emails we send, you will have the opportunity to ‘opt-out’, meaning decline any further communication.
15. DIGITAL MILLENNIUM COPYRIGHT ACT.
If you believe that SimsUShare™ infringes on your copyright, please forward the following information to:
Equipment Simulations LLC,
Attn: Jonathan Kaye,
PO Box 63684
Philadelphia, PA 19147.
Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
(a) Termination. Either party may terminate this EULA if the other party is in breach of any provision hereof; however, all of the provisions hereof, except for the license grants set forth in paragraph 3(a) above, shall survive such termination.
(b) Relationship. No joint venture, partnership, employment or agency relationship exists between you and us as a result of this EULA and/or your use of SimsUShare™.
(c) Entire Agreement. This EULA represent the entire agreement between you and us with respect to the subject matter hereof, and supersedes any and all prior understandings, statements or representations, whether electronic, oral or written, regarding Services.
(d) Assignment and Waiver. We may assign this EULA at our discretion. You may not assign this EULA without our prior written consent. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced.
(e) Law and Jurisdiction. This EULA shall be governed by the laws of the United States of America and the Commonwealth of Pennsylvania, without regard to conflict of laws rules, and you hereby give your consent to have any action or dispute between you and us resolved exclusively within the jurisdiction of the state or federal courts located in the City of Philadelphia, in the Commonwealth of Pennsylvania.
(f) Equitable Relief. In addition to money damages, we shall be entitled to seek equitable relief where appropriate if you breach any of the terms or conditions of this EULA.
(g) Severability. The terms and conditions of this EULA are severable and may be construed to the extent of their enforceability in light of the parties’ mutual intent.
(h) Construction. The titles and subtitles in this EULA are used for convenience only and are not to be considered in construing it. First person plural references herein such as “us,” “we” and “our” refer to Equipment Simulations LLC. Second person references herein such as “you” and “yours” refer to the end-user who downloaded SimsUShare™. Words such as “include” or “including” herein mean “include without limitation” or “including without limitation,” respectively.
(i) Notices. Notices to us shall be sent by email to [email protected] or by U.S. mail or reputable courier service to:
Equipment Simulations LLC
Attn: Jonathan Kaye
PO Box 63684
Philadelphia, PA 19147