VPS SERVICE AGREEMENT
Subject to the terms and conditions of this VPS Service Agreement (“Agreement”), Sturfee, Inc. (“Sturfee” , “we”, “our,” and “us”) will provide you, the developer or licensee of an augmented reality application (“you” or “your” and, such application, “Your App”), visual positioning services (“Sturfee VPS”, “Service” or “VPS”) that will allow your end users (“End Users”) to experience augmented reality assets against real world settings delivered through Your App on VPS compatible smart devices.
BY PRESSING THE "I AGREE" BUTTON, AND/OR BY OTHERWISE ACCESSING OR USING THE STURFEE VPS, YOU: (A) REPRESENT AND WARRANT TO STURFEE THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF OR ON BEHALF OF THE ENTITY THAT WILL ACCESS AND USE THE STURFEE VPS, AND (B) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS ENTIRE AGREEMENT, OR DO NOT HAVE THE LEGAL CAPACITY OR AUTHORITY TO ENTER INTO THIS AGREEMENT AS DESCRIBED ABOVE, THEN DO NOT PRESS THE "I AGREE" BUTTON AND DO NOT USE THE STURFEE VPS.
Sturfee VPS. Subject to, and in accordance with, the terms and conditions of this Agreement, you may:
remotely access and use the Sturfee VPS with Your App and permit your employees and contractors (collectively, “Authorized Users”) to access and use the Sturfee VPS solely with Your App; and
permit End Users of Your App to access and use the Sturfee VPS solely through Your App, and any positioning or other information delivered by the Sturfee VPS solely for their personal use compliant with applicable law.
Sturfee VPS SDK. You acknowledge and understand that before you can use the Sturfee VPS with Your App you will need to use the Sturfee software development kit (“SDK”) and certain related documentation and materials provided by Sturfee in such SDK download (collectively, the “Sturfee VPS SDK”). This Agreement does not grant you or any third party any right or license to access or use the Sturfee VPS SDK; however, if you continue to access or use the Sturfee VPS SDK, you agree that your acceptance of this Agreement also constitutes your acceptance of our SDK License Agreement for the use of the Sturfee VPS SDK, the terms of which are available at https://sturfee.com/agreement.
Registration. For you or Your App to access the Sturfee VPS, you are required to register for a Sturfee account (“Account”). All information you provide on or through your Account must be correct, current, and complete.
Username and Password. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to your Account or portions of it. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your password or other personal information.
Disabling and Changing Usernames and Passwords. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
Unauthorized Access. You are responsible for all actions that take place on or through your Account. You agree to notify us immediately of any unauthorized access to your Account, any unauthorized use of your user name or password, or any other breach of security.
Prohibited Uses. You agree not to, and agree to obligate End Users not to, access or use the Sturfee VPS:
to screen scrape any software or content from the Sturfee VPS;
in any manner that could disable, overburden, damage, or impair the Sturfee VPS or interfere with any other party's use of the Sturfee VPS, including their ability to engage in real time activities through the Sturfee VPS;
to introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
to attack the Sturfee VPS via a denial-of-service attack or a distributed denial-of-service attack;
through or with any robot, spider, or other automatic device, process, or means to access the Sturfee VPS for any purpose, including monitoring or copying any of the material on the Sturfee VPS;
through or with any manual process to monitor or copy any of the material on the Sturfee VPS, or for any other purpose not expressly authorized in this Agreement, without our prior written consent;
through or with any device, software, or routine that interferes with the proper working of the Sturfee VPS;
to attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Sturfee VPS, the server on which the Sturfee VPS is stored, or any server, computer, or database connected to the Sturfee VPS;
in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
to encourage or promote illegal activity or violation of third party rights;
to otherwise attempt to interfere with the proper working of the Sturfee VPS; and/or
to violate the terms and conditions of this Agreement.
Subscriptions. The Sturfee VPS is billed on a subscription basis (hereinafter referred to as a “Subscription”) based on the Subscription level you select on our website, www.Sturfee.com (“Sturfee Website” and, each Subscription level, a “Subscription Plan”). You agree to pay to Sturfee the Subscription fees for the calendar month or other period specified in the Subscription Plan you purchase or use (the “Fee Accrual Period”), in accordance with the pricing and payment terms presented to you for that Subscription Plan. Sturfee offers a basic Subscription Plan without charge and, in some cases, for a limited period of time or only to new users, Sturfee may offer other Subscription Plans at a discount or without charge, in each case in Sturfee’s sole discretion.
Pricing. Sturfee may vary the fees charged for Subscriptions at any time, provided that, for the fees billed for a Subscription during a Fee Accrual Period, the change will become effective only at the end of the then-current Fee Accrual Period of your Subscription. Sturfee will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
Billing. At the end of the applicable Fee Accrual Period, Sturfee will issue a bill to you for all charges based on your Subscription. You will continue to be billed until you cancel your Subscription by activating the “Cancel” button indicated in your Account.
Refunds. Subscription fees are non-refundable, except as provided in this Agreement or when required by applicable law.
Taxes. Unless otherwise stated, you are responsible for any taxes or duties associated with your Subscription, including any related penalties or interest (collectively, “Taxes”). Subscription fees are calculated and due without any reduction for Taxes. If Sturfee is obligated to collect or pay Taxes, the Taxes will be invoiced to you unless you provide Sturfee with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If you are required by applicable law to withhold any Taxes from your payment to Sturfee, you must provide Sturfee with an official tax receipt or other appropriate documentation to support such withholding.
Currency. You shall pay the full amount invoiced in the currency set forth in your bill.
Other Expenses. Any and all expenses, costs and charges incurred by you in the performance of your rights and/or obligations under this Agreement shall be paid by you.
Data Privacy. Sturfee only collects sensor and picture data when Your App communicates with the Sturfee VPS. Sensor data includes (i) GPS reading (ii) IMU sensor reading (iii) Camera intrinsic parameters such as focal length and focal point. Picture data consists of a sequence of images captured by the camera during the server request. Sturfee does not associate this information with any personally identifiable information such as, but not limited to, the End User’s device or IP address. Sturfee retains this anonymous sensor and picture data to provide and improve the Sturfee VPS. You will ensure that Your use, and End User’s use of the Sturfee VPS in Your App will comply with applicable privacy laws.
Intellectual Property Rights; Feedback.
Intellectual Property Rights. You own all intellectual property rights in and to Your App. Sturfee and its licensors own all intellectual property rights in and to the Sturfee VPS and all the underlying software, content (including map and 3D mesh information), data, and other information used to provide the Sturfee VPS. There are no implied licenses granted under this Agreement.
Feedback. “Feedback” means any and all comments, suggestions, ideas or feedback you provide to us regarding the Sturfee VPS or technology used to provide the Sturfee VPS, including ways to improve its functioning, features, and other characteristics, and all anonymous information collected by Sturfee from your and your End Users’ use of the Sturfee VPS. You agree that we may use such Feedback for any purpose, provided we will not associate such Feedback with you or your End Users. So that we may incorporate Feedback into our products and services, you hereby grant Sturfee, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in and to the Feedback for any purpose and you hereby irrevocably and unconditionally grant such Feedback and all such rights to us free of charge. You hereby also waive any moral rights or rights of publicity or privacy or confidentiality in the Feedback.
Support. You are responsible for the support of Your App. You also acknowledge and agree that Sturfee has no obligation to provide support for the Sturfee VPS or for integration or communication of the Sturfee VPS with Your App, unless otherwise agreed by Sturfee in a separate written agreement.
YOU ACKNOWLEDGE AND AGREE THAT THE STURFEE VPS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. STURFEE DOES NOT WARRANT THAT THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE, WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ALL ERRORS WILL BE CORRECTED OR THAT ANY OF THE FOREGOING WILL MEET YOUR OR YOUR END USERS’ REQUIREMENTS OR EXPECTATIONS. YOU AGREE NOT TO MAKE ANY REPRESENTATIONS, GUARANTEES OR WARRANTIES OF ANY TYPE TO ANYONE REGARDING THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE.
INFORMATION FROM THE STURFEE VPS MAY DIFFER FROM ACTUAL CONDITIONS, AND MAY NOT BE SUITABLE FOR YOUR APP. YOU MUST EXERCISE INDEPENDENT JUDGMENT WHEN USING THE STURFEE VPS WITH YOUR APP.
YOU ACKNOWLEDGE AND AGREE THAT THE REMEDIES SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE.
STURFEE AND OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION OR COMPATIBILITY, LEGALITY, DATA SECURITY, ACCURACY, AVAILABILITY, FUNCTIONALITY OR COMPLETENESS, REGARDING THE STURFEE VPS, INCLUDING ANY SYSTEMS, NETWORKS OR ENVIRONMENTS RELATED TO THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE. YOU ACKNOWLEDGE AND AGREE THAT STURFEE HAS NO OBLIGATION TO PROVIDE ANY SUPPORT UNDER THIS AGREEMENT.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STURFEE WILL NOT BE LIABLE TO YOU OR ANY END USER, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, SALES, BUSINESS OPPORTUNITIES, REVENUES, GOODWILL, REPUTATION, DATA USE, OR DATA, EVEN IF WE OR OUR AFFILIATES, LICENSORS, AND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, OR NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR CONCERNING THIS AGREEMENT OR THE STURFEE VPS, INCLUDING ANY SYSTEMS, NETWORKS OR ENVIRONMENTS, RELATED TO THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE CUMULATIVE LIABILITY OF STURFEE FOR ANY AND ALL DAMAGES SUFFERED BY YOU, YOUR END USERS, AND ANYONE ELSE, ARISING OUT OF OR CONCERNING THIS AGREEMENT OR THE STURFEE VPS, INCLUDING ANY SYSTEMS, NETWORKS OR ENVIRONMENTS, RELATED TO THE STURFEE VPS (INCLUDING ANY MAP, 3D MESH, OR OTHER CONTENT OR SOFTWARE COMPRISED THEREIN), ANY POSITIONING OR OTHER INFORMATION DELIVERED BY THE STURFEE VPS, OR ANY OTHER SERVICES PROVIDED BY OR ON BEHALF OF STURFEE, WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, OR NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT OF FEES YOU PAID TO STURFEE DURING THE CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE THAT YOU FIRST LEARNED OF THE EVENT THAT GAVE RISE TO THE CLAIM.
Any suit, claim, action or proceeding based on or related to this Agreement, its terms or conditions, or arising out of its performance or breach, whether based on a breach of contract or warranty, or negligence, misrepresentation or other tort, or on any other legal or equitable theory, must be instituted by you against us within one (1) year after the occurrence of any one (1) or more of the acts, omissions, facts, conduct, events, claims or allegations upon which the action, proceeding or claim is based. You waive the benefit of any statute of limitations which specifies a period longer than one (1) year for filing an action or proceeding.
Indemnification. You agree to defend, indemnify, and hold Sturfee our affiliates, successors, assigns, licensors, and service providers, and our and their respective officers, directors, employees and agents, harmless from and against any and all claims or actions based on or arising out of Your App (including any content in, or the use of, or the legality of the functionality or the services provided by, Your App), your or your End User’s use or misuse of the Sturfee VPS (including any map, 3d mesh, or other content or software comprised therein) or any positioning or other information delivered by the Sturfee VPS, your violation of this Agreement or any applicable law or regulation.
Your Relationship with Sturfee. You and Sturfee are independent contractors, and nothing in this Agreement will be construed as creating a partnership, joint venture, employee, or agency relationship between you and Sturfee.
Termination. This Agreement will commence on the date you press the "I Agree" button and will continue until terminated. This Agreement, and your rights and licenses hereunder, will terminate immediately upon any breach of your obligations under this Agreement. You may terminate this Agreement by written notice or sending an email to Sturfee at firstname.lastname@example.org with the subject line, “Termination of Account”, and stating your intention to cancel your Account. Sturfee may terminate this Agreement at any time for any reason upon written notice or sending an email to you to your e-mail address listed in your Account, including any actual or suspected misuse or abuse by you or End Users of the Sturfee VPS or any violation of this Agreement. Following any termination of this Agreement, you must immediately cease your use, and your End Users’ use, of the Sturfee VPS. The termination of this Agreement shall not give rise to any liability on the part of Sturfee to pay any compensation to you, any of your End Users, or anyone else, for cost of cover, loss of profits or goodwill, to reimburse you for any costs relating to or resulting from such termination, or for any other loss or damage. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive any termination of this Agreement.
Modifications to the Agreement. You agree that we may modify this Agreement at any time by posting a revised version of the Agreement on the Sturfee Website. The revised terms will be effective upon the earlier to occur of (a) thirty days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance. By continuing to use the Sturfee VPS or any Subscription after the effective date of any revisions to this Agreement, you agree to be bound by the revised Agreement.
Force Majeure. Sturfee will not be liable for any failure, delay, or default in performance if caused by: an act of war, hostility or sabotage; act of God or nature; pandemic; electrical, internet, data center, or telecommunication outage that is not caused by Sturfee; government restrictions; or other event outside the reasonable control of Sturfee.
Miscellaneous. You may not assign this Agreement without the prior written consent of Sturfee, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. We may assign this Agreement, including our assets, technology, intellectual property rights and data, whether owned or licensed by us, without restriction and without any notice to you. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns. This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. You hereby submit to the personal jurisdiction of the state and federal courts for Santa Clara County, California. If any provision of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law, and the validity of the remaining provisions hereof shall not be affected thereby. No course of performance, course of dealing, or usage of trade will override the written terms of this Agreement. You acknowledge and agree that nothing in this Agreement shall be construed to obligate Sturfee to provide the Sturfee VPS. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Sturfee’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of this Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience. The Sturfee VPS is a "Commercial Item" as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software." If and to the extent the Sturfee VPS or license thereof is supplied to or purchased by or on behalf of a United States government entity or an entity licensing the Sturfee VPS for or on behalf of a United States government entity, the Sturfee VPS is licensed (a) only as a Commercial Item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. This Agreement does not create or intend any third party beneficiary rights in any individual or entity that is not a party to this Agreement, except as otherwise expressly provided in this Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. The term “including” means “including without limitation”.