END USER LICENSE AGREEMENT AND
TERMS OF SERVICE FOR WEBSITE
Last updated on February 21, 2013.
PLEASE READ THIS ENTIRE END USER LICENSE AGREEMENT AND TERMS OF SERVICE FOR WEBSITE (“AGREEMENT”) BEFORE CLICKING ONE OF THE TWO CHOICE BUTTONS BELOW. BY CLICKING THE “I AGREE” BUTTON AND ACCESSING THE WEBSITE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree with the terms and conditions of this Agreement, click the “I DO NOT AGREE” button.
In return for receiving the Services and acquiring a license to use the Website (both as defined below), you (“User”) agree to the following terms and conditions:
This Agreement is made by and between Mixamo, Inc. (“Mixamo”) with its principal place of business at 2415 3rd Street, Unit 239, San Francisco, CA 94107 and User, an individual person identifiable by the unique user ID provided by Mixamo or any individual person who downloads material from the Website.
“Animation Data” means a file in BVH, or fbx or 3Ds Max or Collada format containing data owned by or licensed to Mixamo.
“Application(s)” means any free or for purchase software programs developed by or licensed to Mixamo available for download on the Website, including bug fixes, updates, upgrades, modifications, enhancements, supplements, revisions, new releases and new versions of such software programs.
“Content” means the video, photographs, text, graphics, logos, button icons, movies, images, audio clips, data compilations and other content available on the Website, and includes the Animation Data.
“Embedded Animation Data” means Animation Data that User has downloaded from the Website and embedded in a User application or product in such a manner that it cannot be extracted from the application or product and used as stand-alone Animation Data without the use of reverse engineering tools or techniques. For avoidance of doubt, Embedded Animation Data is the use of Animation Data that is not intended to allow further use, reproduction, modification, or distribution of the Animation Data outside of the application or product containing the Embedded Animation Data.
“Services” means the Mixamo services accessible on the Website, including but not limited to the ability to use the Software to manipulate the Content and to download the Content in an Animation Data file.
“Software” means the proprietary Mixamo software used in accessing the Website and manipulating the Content.
“User Skeleton(s)” means three dimensional characters created by User using third party software.
“Website” means this Mixamo website.
2. License Grant and Use of Services.
2.1 License and Services.
(a) Subject to User’s compliance with the terms and conditions of this Agreement and payment of the license fees, Mixamo grants User a personal, nonexclusive, and non-transferable license to use the Website and Software, and to use the Content on the Website. User may not grant sublicenses of its rights except for the right to reproduce and distribute the Embedded Animation Data in User’s animated work to customers pursuant to Section 2.4 below.
(b) If User downloads an Application from the Website, subject to User’s compliance with the terms and conditions of this Agreement and, if applicable, the payment of any fee in connection with such Application, Mixamo grants User a personal, nonexclusive, non- sublicensable and non-transferable license to use such Application.
2.2 Restrictions. Mixamo grants a limited license to access and make personal use of the Website and not to download (other than the Animation Data, Applications and limited portions of the Software for access purposes) or modify the Website, or any portion of the Website. User may not frame, or use any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, movie, page layout, or form) of Mixamo. The Website, Content, Software, Applications or any portion of the Website, Content, Software or Applications may not be reproduced, duplicated, adapted, copied, sold, resold, transmitted or otherwise exploited for any commercial purpose or any other purpose without the express written consent of Mixamo. User may not modify, copy, reproduce, republish, upload, transmit, or distribute the Software or Application or any portion of the Content, other than the Embedded Animation Data as set forth in Section 2.4 below, without the prior express written consent of Mixamo.
2.3 User Skeletons. User may upload User Skeletons to use with the Software and Website. User grants a royalty-free license to Mixamo to use the uploaded User Skeletons for internal testing purposes. Mixamo’s license under this Section 2.3 shall continue until User deletes the User Skeletons from the Website or notifies Mixamo in writing that such license is terminated. Mixamo may delete User Skeleton(s) from the Website at Mixamo's discretion. User represents and warrants that any User Skeletons or other content uploaded by User to the Website do not and will not contain any viruses or other programming routines that interfere with the Website, computer systems or data. During the term of this Agreement, should a virus be found to exist in or have emanated from any User Skeleton or other content uploaded by User, User agrees, at its sole expense, to use reasonable commercial efforts (including but not limited to providing appropriate replacement software, installation, and diagnostic testing) to remove the effect of the virus within five (5) days of Mixamo’s notice. In the event the virus causes loss of operational efficiency or loss of data, User shall assist Mixamo to mitigate such loss and restore the Website to its original operating efficiency within ten (10) days of Mixamo’s notice.
2.4 License to Animation Data; Distribution of Embedded Animation Data. User may download the Animation Data for the sole purpose of embedding the selected Animation Data in an animated application prepared by User as a result of using the Services. User may make modifications to the Animation Data solely as a part of preparing the Embedded Animation Data. User agrees that the standalone Animation Data may not be resold, published, or distributed to third parties. Provided User has purchased a particular Animation Data clip, User may reproduce and distribute such Animation Data clip only as Embedded Animation Data embedded in User’s creative animated work to customers without any obligation to pay royalties to Mixamo, and provided User is in compliance with the terms and conditions of this Agreement. User agrees that (a) all copies of the Animation Data contain the Mixamo proprietary notices, and (b) it will distribute its applications and products for which Embedded Animation Data has been embedded pursuant to a commercially reasonable end-user license agreement containing terms and conditions commensurate with industry norms. User’s license to use and distribute Animated Data is limited to Embedded Animated Data. Redistribution, or republication or commercialization of Animated Data that is not Embedded Animated Data is prohibited. For example, approved distribution or use of Animated Data as Embedded Animated Data includes, but is not limited to: (i) as rendered moving images; resold as part of a feature film or broadcast or otherwise used in demonstration or marketing materials, and (ii) as part of a game if the Embedded Animated Data is contained inside a proprietary format and displays inside the game during play. Notwithstanding the generality of the foregoing, Users that have obtained access to the Website pursuant to the terms of a standard education license, as opposed to an education+ license, between Mixamo and an educational institution (each a “Standard Educational License”) with which such user is affiliated (each a “Standard Educational User”) agree that such Standard Educational License access is granted for educational purposes only and not for commercial purposes. Accordingly, Standard Educational Users shall not directly or indirectly license or distribute on a commercial basis any creative animated works containing Embedded Animation Data downloaded by such Standard Educational User pursuant to an Standard Educational License.
3. Prices and Payment Terms.
3.1 Non-Subscription Purchases. License prices currently available to User are posted on this Website. Payment may be made via the electronic payment method(s) selected by Mixamo from time to time. Mixamo may change the price list available to User from time to time at its sole discretion. User may examine, test, and evaluate the Animation Data clips on the Website without purchasing a license, but once User has purchased a particular Animation Data clip, the purchase shall be nonrefundable.
3.2 Monthly Subscription. If User purchases a monthly subscription service, Mixamo will charge the monthly subscription fee for the subscription level selected, plus any applicable tax, and any other additional fees User authorizes to the credit card account provided by User in accordance with the credit card billing policies described in Section 3.4. All monthly subscription fees and charges are nonrefundable and there are no refunds or subscription fee credits for partially used monthly periods. All unused credits expire upon termination or cancellation of the User’s monthly subscription service.
3.3 Mixamo All Access Annual Subscription. If User purchases a Mixamo All Access annual subscription service (“Mixamo All Access”), the annual subscription fee for the number of seats purchased, plus any applicable tax, must be paid in advance through one of the electronic payment methods offered by Mixamo, such as through a credit card in accordance with the credit card billing policies described in Section 3.4. All Mixamo All Access subscription fees and charges are nonrefundable and there are no refunds or subscription fee credits for partially used annual periods, provided, however, that a User may receive a refund of the User’s Mixamo All Access annual subscription fee if the User requests such refund within 24 hours of the time of purchase or renewal of the Mixamo All Access annual subscription.
3.4 Credit Card Billing Policies. User’s subscriptions that are paid by credit card, whether a monthly subscription or a Mixamo All Access annual subscription, will be set to automatically renew. This means that unless User cancels the account prior to the expiration of the applicable subscription period, whether monthly or annual, User’s account will automatically renew for another subscription period. For monthly subscriptions, Mixamo automatically bills User’s credit card each month on the calendar day corresponding to the commencement of User’s subscription. In the event the account begins on a day not contained in a given month, Mixamo will bill User’s credit card on the last day of such month. For example, if User became a subscriber on January 31st, User’s account would next be billed on February 28th. To view the specific details of User’s subscription account, including if applicable price level, number of seats purchased, unused account credits, and end date of the applicable subscription period, click the “My Account” link. User’s subscription will continue in effect unless and until User cancels the subscription or the subscription is terminated by Mixamo. USER MUST CANCEL PRIOR TO THE END OF THE APPLICABLE SUBSCRIPTION PERIOD TO AVOID CHARGES TO USER’S CREDIT CARD. User may cancel the account at any time by clicking on the “My Account” link.
By authorizing Mixamo to charge a credit card or other payment methods for the fees associated with User’s subscription, User is authorizing Mixamo to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs Mixamo of the new replacement card account) for all fees or charges associated with User’s subscription. User authorizes the card issuer to pay any amounts described herein and authorizes Mixamo, or any other company that acts as a billing agent for Mixamo, to continue to attempt to charge all sums described herein to User’s credit card account until such amounts are paid in full. User agrees to provide Mixamo updated information on User’s credit card upon Mixamo’s request and any time the information earlier provided is no longer valid. User agrees that if payment is not received by Mixamo from User’s credit card issuer or its agents, User agrees to pay all amounts due upon demand by Mixamo.
3.5 Subscription Price Changes. Mixamo may at any time, upon notice required by applicable law, change the prices of the monthly subscription, the Mixamo All Access annual subscription, any part of such subscriptions, or institute new charges or fees. Price changes and institution of new charges implemented during User’s subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If User does not agree to any such price changes, User must cancel the applicable subscription service and stop using the Services. User’s continued use of the Services after the effective date of any such change shall constitute User’s acceptance of such price changes.
4. Proprietary Rights.
Mixamo (or its licensors) retain all right, title and interest in and to the Software, Applications, Services, Website, Content, Animation Data, and any copies and any derivatives or modifications thereof, other than modifications made to the Animation Data as a part of preparing the Embedded Animation Data as provided in Section 2.4. User shall have no rights to modify or make derivative works of the Software, Applications, Services, Website, Content, Animation Data, other than the limited right granted in Section 2.4 to make modifications to the Animation Data as a part of preparing the Embedded Animation Data. Except as expressly granted in Section 2, no license, right or interest in any Mixamo patent, trademark, copyright, trade name or service mark is granted hereunder. Absent a written grant of rights greater than that contained in Section 2, all other rights or sub-divisions of rights generally included in a copyright are excluded from this license and remain the property of Mixamo. The resale or redistribution by User of any Animation Data is expressly prohibited unless it is Embedded Animated Data and such resale or redistribution is permitted pursuant to Section 2.4. User agrees not to (i) rent, lease, or transfer the Software or Applications and rent, lease, or commercialize in any other way (except as expressly permitted herein) the Animation Data; or (ii) export the Software, Applications, Services, or Animation Data in violation of U.N. embargoes or U.S. laws and regulations. User (or its licensors) retain all right, title and interest in and to the User Skeletons.
5. User Information.
6. Confidentiality Obligations.
Mixamo hereby acknowledges that the User Skeletons contain the confidential and proprietary information of User. Mixamo agrees to maintain the confidentiality of the User Skeletons. Mixamo will not make use of any User Skeletons except to the extent necessary for evaluation and testing as contemplated by this Agreement. Mixamo will not disclose or make available User Skeletons to any third party. Mixamo will take all reasonable steps to ensure that User Skeletons are not disclosed or distributed by Mixamo.
7. Term and Termination.
This Agreement shall be effective upon User’s enabled access to the Website. This Agreement will terminate automatically, and without notice, upon User’s breach of any term of this Agreement. Upon expiration or termination of this Agreement User shall (i) immediately cease use of the Software and Services, (ii) destroy all copies of the Software and (iii) provide written notification to Mixamo that User is not in possession of any copies of the Software. Section 2.1(b), Section 2.3 (License to User Skeletons), Section 2.4 (License to Animation Data; Distribution of Embedded Animation Data), Section 4 (Proprietary Rights), Section 5 (User Information), Sections 6 (Confidentiality Obligations), Section 7 (Term and Termination), Section 9 (Disclaimer of Warranties), Section 10 (Waiver of Consequential Damages), Section 11 (Limitation of Liability), Section 12 (Injunctive Relief) and Section 13 (Entire Agreement) shall survive expiration or termination of this Agreement. User’s end user customers may continue to use the Embedded Animation Data in accordance with the terms of their end user agreements. User may continue to use Animated Data for which it has paid the license fees and downloaded prior to termination or expiration, and may continue to distribute Embedded Animated Data subject to Section 2.4 which survives any termination or expiration of this Agreement. User will no longer have access to the Website or any rights to use the Software, Applications or Services.
8. No Technical Support.
Unless otherwise agreed, Mixamo shall have no obligation to correct errors in, provide updates for or otherwise support the Website. Mixamo may update the Website and the Services from time to time at its sole discretion. Mixamo from time to time engages in A/B testing of our Website’s features and User acknowledges that the Website experience may differ among individual users for Mixamo’s testing and marketing purposes.
9. Disclaimer of Warranties.
THE SERVICES, SOFTWARE APPLICATIONS, AND ANIMATION DATA ARE SUPPLIED UNDER THIS AGREEMENT “AS IS,” WITHOUT WARRANTY OF ANY KIND OR NATURE. MIXAMO DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES RELATIVE TO THE SERVICES, SOFTWARE, APPLICATIONS OR ANIMATION DATA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
MIXAMO MAKES NO WARRANTY TO USER THAT (I) THE WEBSITE WILL MEET USER'S REQUIREMENTS, (II) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE WEBSITE WILL MEET EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE OR APPLICATION WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. USER ACKNOWLEDGES THAT FREE APPLICATIONS DOWNLOADED FROM THE WEBSITE MAY BE EXPERIMENTAL APPLICATIONS AND THAT MIXAMO MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO SUCH APPLICATIONS, AND USER AGREES TO ASSUME ALL RISKS WITH RESPECT TO DOWNLOADING AND USING SUCH APPLICATIONS. MIXAMO DOES NOT WARRANT THAT THE WEBSITE, ITS SERVERS, OR E-MAIL SENT FROM MIXAMO ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USER AGREES THAT USER MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF ANY CONTENT, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH CONTENT.
10. Waiver of Consequential Damages.
UNDER NO CIRCUMSTANCES SHALL MIXAMO OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR COSTS OF SUBSTITUTE GOODS, THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, APPLICATIONS, SERVICES, ANIMATION DATA OR RELATED DOCUMENTATION, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, EVEN IF MIXAMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Limitation of Liability.
IN NO EVENT WILL MIXAMO OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES EXCEEDING THE AMOUNT OF THE LICENSE FEE PAID BY USER FOR THE ANIMATION DATA OR, IF THAT AMOUNT CANNOT BE DETERMINED, THE AMOUNT OF MIXAMO’S POSTED LIST PRICE FOR THE ANIMATION DATA DOWNLOADED BY USER. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT WILL MIXAMO OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES TO USER IN CONNECTION WITH THE DOWNLOAD OR USE OF FREE APPLICATION(S) FROM THE WEBSITE.
12. Injunctive Relief.
User acknowledges and agrees that due to the unique nature of the Services and the Applications, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to Mixamo, and therefore, that upon any such breach or any threat thereof, Mixamo shall be entitled to appropriate equitable relief to protect Mixamo’s intellectual property rights, and to enforce the terms of the license grant in Section 2, without the necessity of posting a bond, in addition to whatever remedies it might have at law.
13. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements or representations, oral or written, regarding such subject matter. This Agreement shall be governed by the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents, without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods. The failure by Mixamo to exercise any right hereunder shall not operate as a waiver of Mixamo’s right to exercise such right or any other right in the future. Mixamo may update and amend this Agreement from time to time by posting a revised version of this Agreement to the Website. This Agreement is personal to User and may not be assigned or transferred in whole or in part by User without prior written consent from Mixamo. Any attempt, without such consent, to assign or delegate any rights, duties or obligations which arise under this Agreement will be void and of no effect. Any permitted assignment shall be binding on the representatives, successors and assigns of the parties hereto.