Terms of Use/Service

PLEASE READ THE FOLLOWING TERMS OF SERVICE (“TERMS”) CAREFULLY. BY USING OR VISITING THE SIMERSE WEBSITE OR ANY SIMERSE SERVICES, SOFTWARE OR CONTENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND THE TERMS OF THE SIMERSE PRIVACY POLICY (“PRIVACY POLICY”) WHEN ACCESSING THE WEB SITE LOCATED AT THE URL: WWW.SIMERSE.COM (“SITE”) AND/OR USING ANY SERVICES, SOFTWARE OR CONTENT OFFERED BY OVERHEAD, LLC. (“SIMERSE” OR “OVERHEAD” OR “WE” OR “OUR” OR “US”) THROUGH THE SITE (COLLECTIVELY, THE “SERVICES”). 


IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS OR THE TERMS OF THE PRIVACY POLICY, AND EACH AS AMENDED FROM TIME TO TIME, DO NOT CHECK THE “I AGREE” BUTTON, AND YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. Changes to the Site, Services and Terms

Simerse may, in its sole discretion, add, change, modify, remove, discontinue, or suspend any portion or feature of the Site or Services, including, without limitation, the Software and Content (each as defined below), permanently or temporarily, at any time, without notice and without liability to you. Such additions, changes or modifications may change or delete the features or other aspects of the Site, Services, Software or Content, including features that you may rely upon. You agree that such activities may occur at Simerse’s sole discretion and that Simerse may condition continued use of the Site and Services upon your complete acceptance of such additions, changes or modifications. 
In addition, Simerse may make changes to these Terms or the Privacy Policy at any time. The most current version of these Terms will supersede all previous versions. Although we may attempt to inform you when major changes are made to the Terms, your acceptance of the revised Terms or Privacy Policy, if prompted to do so, or your continued use of the Site and Services means that you agree to the revised Terms or Privacy Policy, even if you have not reviewed the changes. If you do not agree to the revised Terms or Privacy Policy, your sole and exclusive remedy is to terminate your registration to use the Services immediately and to immediately discontinue your use of the Site and Services.

2. Requirements for Use of the Site and Services


Simere’s services and the Site are not intended for individuals under the age of 18. 

For Simerse for Educational Accounts
In a classroom scenario, educators can protect students’ privacy and still use Simerse by creating accounts owned by the institution or educator and ensuring that students do not divulge any personally identifiable information to Simerse. 

You agree, represent, and warrant that you are of legal age to form a binding contract to agree to these Terms. If you’re agreeing to these Terms on behalf of an organization or entity (for example, if you’re an administrator or executive agreeing to these Terms on behalf of your organization), you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.

3. Free Services and Fee-Based Services

The Services consist of: (1) services for which users are not required to pay any fee to Simerse (“Free Services”); and (2) services for which users must pay a fee to Simerse before they can use such services (“Fee-Based Services”). Most of these Terms apply to both the Free Services and the Fee-Based Services. If different terms apply to either type of Services, we make this clear below in these Terms. Simerse reserves the right in the future to charge for your use of any portion of the Free Services at any time in its sole discretion, upon notice to you.

4. Fees

You must have an Account to use the Services. You can sign up for a free membership Account to access and use the basic version of the Services or any other Free Services, but to access and use the Fee-Based Services, you must pay Simerse’s then-current applicable fees for the Fee-Based Service you are purchasing (i.e. an annual subscription fee or one-time fee per seat). A minimum number of seats must be purchased in accordance with then-current applicable fees for certain subscription tiers. Simerse reserves the right to adjudicate the appropriate subscription tier and minimum number of seats for your account or organization. If you do not agree to this adjudication, you may not use the Site or Services. Refunds for adjudication disagreements will be made on a case-by-case basis as solely determined by Simerse. Payments will be charged to your Account on the date on which the relevant Fee-Based Service is first made available to you (“Activation Date”). Thereafter, for subscription fees, on each anniversary of the Activation Date, your subscription will automatically renew and your Account will be charged for the then-current annual subscription fee, unless you cancel your subscription to the relevant Fee-Based Service before the upcoming anniversary of the Activation Date. Except as expressly stated by Simerse in these Terms, all fees paid or owed by you are non-refundable.

You may only use the Services or Software for non-commercial purposes if you are solely a user of Free Services. You agree to use the Site, Services, or Software for only non-commercial purposes if you are not a paid subscriber of Fee-Based Services. Only paid subscribers of Fee-Based Services may use the Services, Software, or generated training data (and artificial intelligence which train on the training data) for commercial purposes. Simerse reserves the full right to claim substantial damages for violation of the Terms, including but not limited to unauthorized use of the Site, Services, or Software. You agree Simerse is the ultimate arbiter of what activities or uses are considered “non-commercial” or “commercial” purposes.

You agree to pay all fees charged to your Account based on Simerse’s fees, charges, and billing terms then in effect as shown on the payment page of the Site. If you have a balance due on any Account, you agree that Simerse may, and you hereby authorize Simerse to, charge such unpaid fees to your credit card, or such other payment method accepted by Simerse, or otherwise bill you for such unpaid fees or any other applicable charges. If you do not pay any amount due on time, or if Simerse cannot charge your credit card or other payment method for any reason, Simerse, in addition to any other rights or remedies it may have, reserves the right to either immediately suspend or terminate your access to all or a portion of the Site and/or Services. All payments to your Account must be made from a source for which you are the named account holder. Simerse is not liable for any loss caused by any unauthorized use of your credit card, or any other method of payment by a third party in connection with your use of the Site or Services, or the use of your Account. Simerse reserves the right to change its billing methods and fees at any time; any changes to the fees or billing methods will be posted on the Site or through the Services. Your continued use of the Services after the changes have taken effect means that you accept such changes. You are responsible for paying any taxes that may apply, or relate to, your use of the Services (including, without limitation, any income or other taxes payable by you if you sell products or services developed using the Services), in addition to the fees or other applicable charges due under these Terms.

5. User Account

A user account (“Account”) is required to access and use the Services. To create an Account, you must have an e-mail address. You represent and warrant that: (1) you will provide truthful, accurate, current, and complete Account registration information; (2) you will promptly update such information if it changes to keep it accurate and complete; (iii) you are 18 years of age or older; and (iv) your use of the Site and Services does not violate any applicable law, rule or regulation. You agree that you will not misrepresent yourself or represent yourself as another user of the Site or the Services. You hereby authorize Simerse, either directly or through third parties, to make any inquiries we consider necessary to validate your Account registration data. You are solely responsible for maintaining the confidentiality and security of your username and Account information, and for all activity occurring under your Account as a result of your failure to keep such information secure and confidential. Simerse will not be responsible for any losses arising out of the unauthorized use of your Account. You may not allow any third party to use your Account for any purpose. You must notify Simerse promptly in the event of any unauthorized use of your Account, username, or any other security breach. Simerse has no liability to you or any third party for any loss or damage arising from your failure to comply with your obligations specified in this section. You agree that Simerse may store and use the registration data you provide for use in maintaining and billing fees to your Account. Simerse may modify, delete, or otherwise change your account details for any reason. 

7. Ownership of Content and Software

Simerse and/or its third party licensors owns all right, title and interest in and to: (1) the information, applications, features, text, files, advertising, graphics, content, images, photos, videos and video clips, screenshots, art work, icons, audio, works of authorship, descriptions, user and visual interfaces, widgets, and other materials or information provided on and through the Site and Services (collectively, the “Content”); and (2) the proprietary software, algorithms and code made available by Simerse through the Site and Services (collectively, the “Software”), including, without limitation: (a) the downloadable software tool made available to you (the “Simerse Tool” or “Simerse Plugin”); and (3) the design, appearance, structure, and arrangement of the Site, Services, Software and Content; and (iv) the trademarks, domain names, service marks, proprietary logos and other distinctive brand features found on, or in, the Site, Services, Software and Content. You agree: (i) to use the Site, Services, Software and Content solely as expressly permitted by these Terms or as otherwise expressly permitted by Simerse, and at all times in accordance with all applicable rules, regulations, and laws; and (ii) that your unauthorized use of the Site, Services, Software or Content may violate copyright, trademark, trade secret or patent laws, or various other intellectual property rights of Simerse or third parties, unfair competition laws, the laws of privacy and publicity, and criminal and civil statutes.

8. License Grant From Simerse for Services

To the extent that you use the Services, and subject to your compliance with these Terms, including, without limitation, your payment of all fees and other amounts due in connection with your use of the Fee-Based Services, and your execution of a EULA (as defined below) with each third party end user to whom you sell or otherwise provide Training Data (as defined below), Simerse hereby grants you a limited, personal, revocable, non-exclusive, non-sublicensable, and non-transferable license to: publish, publicly display, publicly perform, use, market, sell and license Training Data solely for your personal or commercial use; “Training Data” means a set of data, generated in any form by use of the Services, that can be used independently of the Simerse platform for the purpose of training an artificial intelligence algorithm.

If any Services are subject to additional license or use terms, then those terms will apply in addition to these Terms and such additional terms, if any, will be notified to you if and when you elect to purchase or download such Services. If any Services are for third party software, content and/or other copyrighted material (“Third Party Content”), then your use of such Third Party Content is governed by the acknowledgements, licensing terms and disclaimers for such Third Party Content.

For clarity, “personal or commercial use” means that you, as an individual and/or on behalf of any person or entity other than yourself in your personal capacity (e.g., on behalf of an employer, or as a developer or contractor), may publish, publicly display, publicly perform, use, market, and sell Training Data for a fee or free of charge. You can also use the Training Data to train an artificial intelligence algorithm. Simerse will not provide an artificial intelligence algorithm and makes no claims of ownership regarding the development or use of such algorithm, which is entirely your responsibility. However, you do agree that such artificial intelligence algorithm, both use and development or any other related actions, will be both lawful and responsible under United States law. Any fees you charge are earned solely by you in your personal capacity as an individual or by your employer.

As a condition to being permitted to use the Services, you will ensure that you execute a binding written End User License Agreement (“EULA”) with each third party end user to whom you sell or otherwise provide Training Data. Each EULA must contain terms no less protective of Simerse than the terms set forth in these Terms, including, without limitation, the terms specified herein under the headings “Ownership of Content and Software”, “Prohibitions”, “Reservation of Rights”, “Warranty Disclaimer”, “Limitation of Liability”, and “Indemnification.” You will provide accurate and complete copies of all EULA’s to Simerse within five (5) calendar days after any request from Simerse. You will enforce each such EULA with at least the same degree of diligence that a reasonable software company would use to enforce similar agreements for its own non-open source software products that it sells and distributes. You will immediately notify Simerse if you become aware of any material breach of any EULA, and will provide Simerse with reasonably detailed information in connection with such breach. Upon the termination of any EULA, you will use all reasonable efforts to obtain from the end user all copies of the Training Data in such end user’s possession or control.

In using the Services, you will not commit any act, or refrain from taking any action, and you will not agree to any legal or any other contractual terms, that reduce or otherwise negatively affect in any way, Simerse’s and its licensors’ right, title and ownership of the intellectual property and other proprietary rights applicable to, or embodied in, the Site, Services, Software (including, without limitation, the Simerse Tool), and Content. You will not remove any proprietary trademarks, logos or other designations of Simerse’s ownership, including without limitation, any “Made with Simerse” or equivalent designation(s) from any Training Data or associated outputs.

Without limiting any other rights or remedies of Simerse, the limited license and the rights granted above will terminate automatically, without notice to you, if you breach, or threaten to breach, any of the terms or conditions of these Terms.

9. Reservation of Rights

Except for the limited licenses specified above, you acknowledge that you have no right, title or interest in or to the Site, Services, Software or Content. Simerse and its licensors retain all right, title and interest in and to the Site, Services, Software and Content, including, without limitation, all intellectual property and other proprietary rights embodied therein, or associated therewith. Nothing in these Terms will be deemed a sale of the Software. By making them available on the Site, or through the Services, Software or Content, Simerse is not granting you any license to use the domain names, trademarks, service marks, proprietary logos, and other distinctive brand features found on or in the Site, Services, Software or Content, unless otherwise expressly permitted by Simerse. All rights not expressly granted by Simerse in these Terms are hereby reserved by Simerse and its licensors. There are no implied rights.

You acknowledge and agree that Simerse may use the Software licensed to you hereunder to create its own training data and that Simerse reserves the right to independently develop and publish training data that may be substantially similar to your work or use of the Services. To the extent that any training data independently developed by Simerse appears substantially similar to any of your work or use of the services, you hereby waive any claims you may have against Simerse arising therefrom.

10. Prohibitions

Except to the extent expressly permitted in these Terms, you may not: (1) copy, modify, adapt, translate, reverse engineer, reverse compile, decompile, disassemble, or attempt to discover the source code of any Software or Content made available on or in connection with the Site, Services or Content, or make any derivative works of such Software; (2) use any code, software, method or product to manipulate the Site, Services, Software or Content in any way that affects any user’s experience in using, or ability to use, same; (3) reproduce, publish, transmit, broadcast, download, cache, distribute, perform, display, sell, use, or in any way exploit any Software or Content; or (4) remove any patent, copyright, trademark or other proprietary notices contained in any Software or Content. To the extent the prohibition specified above concerning the reverse engineering, disassembly or decompilation of Software violates applicable local law, and you wish to take any action in contravention of this prohibition to the extent you are permitted to do so under applicable local law, then you must notify Simerse in writing not less than 90 calendar days before taking that proposed action. Simerse will then discuss with you the scope of any needed reverse engineering, disassembly or decompilation that would be required in order to enable you to exercise your rights as permitted under applicable local law, and you hereby agree that Simerse, may in its sole discretion, carry out any such reverse engineering, disassembly or decompilation on your behalf, at no cost to you.

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers” that accesses the Site or Services in a manner that sends more request messages to the Simerse servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, Simerse grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Simerse reserves the right to revoke these exceptions either generally or in specific cases, up to the discretion of Simerse. You agree not to collect or harvest any personally identifiable information, including account names, from the Site, nor to use the communication systems provided by the Site (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Site with respect to their Content.

 

11. Your Training Data

AS BETWEEN YOU AND SIMERSE, YOU RETAIN OWNERSHIP OF ALL YOUR COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO, OR EMBODIED IN, YOUR TRAINING DATA. You acknowledge and agree that you are solely responsible for the content, code, text, files, images, photos, screen shots, artwork, icons, videos, sounds, musical works, works of authorship, copyrighted text, descriptions, representations or any other materials or information that you submit, post or otherwise make available to Simerse for publication and distribution, including, without limitation, training data that you have developed and posted on the Site using the Services, and that you, and not Simerse, are solely and exclusively responsible for each such Training Data, including, without limitation, ensuring that you have the legal right to post, provide, license, market, sell, or otherwise use, each Training Data, and that such Training Data does not violate these Terms, or the property or other rights of any third party. The term “Training Data” does not include: (1) the Simerse Tool; or (2) any other Software or Content.

You represent and warrant that Training Data is your own original creation, and/or that you have, or have obtained, all necessary permissions, rights, licenses, consents, and clearances to enable Simerse to exercise the rights granted in these Terms and to use the Training Data for the foregoing purposes. To the extent you hold any rights that conflict with the rights you have granted as set forth in these Terms, you hereby waive, and agree not to assert, any moral or other rights you may have, and which apply to your Training Data or Feedback which Simerse uses within the scope of the licenses granted by you under these Terms.

12. Your Feedback and Support Requests

Certain areas of the Site and Services (including but not limited to blogs, online forums, message boards, etc.) may permit you to provide feedback, comments, suggestions, ideas, messages, or similar information (collectively, “Feedback”). Feedback does not include any Training Data provided by you, and Simerse’s rights to use Training Data provided by you, are solely as stated above. By submitting Feedback, and as a condition of using the Site and Services, you hereby grant Simerse an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide, license (sublicensable through multiple tiers) to: (1) use, distribute, reproduce, publish, modify, adapt, publicly perform, translate, and publicly display your Feedback (or any modification thereto), in whole or in part, in any format or medium now known or later developed; and (2) use (and permit others to use) your Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that Simerse deems appropriate in its sole discretion (including, without limitation, to incorporate your Feedback (or any modification thereto), in whole or in part, into any technology, product or service). Simerse reserves the right to display advertisements in connection with Feedback and to use Feedback for promotional and advertising purposes. You acknowledge and agree that any Feedback provided by you is provided on a non-confidential basis. Feedback will generally be accessible by other users of the Site and Services, so be sure that any Feedback you post on any area of the Site or Services is information that you are comfortable sharing with others.

13. License Grant From You For Services

AS BETWEEN YOU AND SIMERSE, YOU RETAIN OWNERSHIP OF ALL YOUR COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO, OR EMBODIED IN, YOUR TRAINING DATA. You hereby grant Simerse a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, transferable, sublicensable (with the right to sublicense through multiple tiers) license (in any media, whether now known or hereafter developed) to reproduce, create derivative works from, distribute, publicly perform, publicly display, modify, adapt, enhance, and otherwise use, the Training Data that you provide to Simerse, solely for purposes of: (1) creating, developing, testing, delivering, maintaining, and supporting Training Data for use by you within the scope of the Services; (2) hosting, publishing, publicly displaying Training Data on the Site at your request, and making such Training Data available for use by users of the Site and Services; (3) enabling Third Party Web Sites to embed all or portions of your Training Data into their web sites; (4) marketing and promoting the Site and Services; and (5) hosting, providing, maintaining, adapting, enhancing, modifying and otherwise improving the Site, Services and Software, (6) developing, creating, or teaching artificial intelligence algorithms. EXCEPT TO THE EXTENT YOU REQUEST SIMERSE TO SELL YOUR TRAINING DATA ON YOUR BEHALF PURSUANT TO PUBLISHING SERVICES THAT SIMERSE MAY OFFER UNDER SEPARATE TERMS OF SERVICE, SIMERSE WILL NOT SELL YOUR TRAINING DATA TO ANY THIRD PARTY. Simerse is not required to provide: (a) any attribution whatsoever to you in connection with your Training Data, except to the extent you request attribution as set forth below; (b) any prior notice to you of any use of your Training Data for the purposes specified in clauses (3) or (4) of this section; or © any fees, royalties, or other payments to you.

You acknowledge and agree that Simerse may collect certain data arising from and regarding the use of your Training Data by users of the Site and Services, that Simerse shall own all right, title and interest in such data, and that Simerse has no obligation to share with you any such data.

You may deliver to Simerse your own EULA for any Training Data at the time that you provide your Training Data to Simerse; provided, however, that your EULA must comply with applicable laws. Simerse will notify each end user that the end user’s use of Training Data is subject to the terms and conditions of your EULA (if any) and allow each end user to review your EULA at the time that Simerse provides access to your Training Data. If you do not furnish your own EULA for any Training Data, then you acknowledge and agree that each end user’s use of that Training Data will be subject to Simerse’s standard EULA.

You hereby acknowledge that the EULA for your Training Data is solely between you and the end user, and neither Simerse nor its distributors or agents will be responsible for, and/or have any liability whatsoever under, any EULA or any breach by you or any end user of any of the terms and conditions of any EULA.

14. Training Data Restrictions

You represent and warrant that your Training Data will not contain content or data which is unlawful, libelous, pornographic, offensive, defamatory, contrary to public policy, Simerse’s stated policies, or otherwise violates any law or any right of any third party (including intellectual property rights, publicity rights, privacy rights, or other legally recognized rights).

You agree that you will not generate, post, upload, submit or otherwise make available on the Site or through the Services any Training Data or Feedback protected by copyright, trademark, patent, trade secret, or any other intellectual property or other proprietary right without the express prior permission of the legal owner of such right, and the burden of determining whether any material is protected by, or infringes, misappropriates or violates, any such right is your sole and exclusive responsibility. As between you and Simerse and the other Indemnified Parties (as defined below), you will be solely liable for any claims, losses, or damage resulting from any such infringement, misappropriation or violation of such rights, or any other harm resulting from any Training Data or generated data that you create or provide.

You represent and warrant that: (1) you have the right to enter into this Agreement; (2) you own all Feedback and Training Data provided by you on or through the Site or Services or you otherwise have the legal right to grant the licenses to Simerse as set forth in these Terms; (3) you have the right to reproduce and distribute Training Data, and to authorize Simerse to permit end users to use or download the Training Data; (4) none of the Training Data or Feedback, or Simerse’s or end users’ permitted uses of Training Data and Feedback, violate or infringe, or will violate or infringe, any patent, copyright, trademark, trade secret, privacy, or publicity rights, or other intellectual property, proprietary or contractual rights, of any other person, firm, corporation or other entity; and (5) all information you provided to Simerse in your Account and using the Simerse Tool and, including any information relating to the Training Data, is accurate.

15. Rules of Conduct

Simerse requires that you respect the Simerse online community, including other individuals who use the Site and Services. Your conduct should be guided by common sense and basic etiquette. To further these common goals when using the Site and Services, you agree not to do any of the following:
(1) create, post, or provide Training Data, Feedback or any other content that is false, harmful or illegal;

(2)  decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Site, Services or Software.
(3) harass, threaten, abuse, stalk, troll or flame other users of the Site or Services or any other person;
(4) create, post, or provide Training Data, Feedback or any other content that is racially or ethnically offensive, vulgar, obscene, pornographic, sexually explicit, disparaging, defamatory, tortious, libelous, infringing or that otherwise violates the legal rights of others (including, without limitation, the intellectual property rights, privacy or publicity rights of third parties);
(5) impersonate another person or attempt to mislead users by indicating that you represent Simerse;
(6) attempt to illicitly obtain a password, account information, or other private information from anyone else who uses the Services; 
(7) collect usernames, names, street addresses, e-mail addresses, or other personal information from, or of, other users of the Services for any purpose other than your personal use in your interactions on the Site, with the permission of the relevant users; 

(8) fail to purchase the appropriate number of seats for your organization; 

(9) engages in any attempt to circumvent dutiful payment for usage.
(10) provide or upload files or other content that contain a virus, corrupted data, Trojan horses or other harmful, disruptive or destructive files, or post material that interferes with any third party’s uninterrupted use and enjoyment of the Site or the Services; 

(11) circumvents or attempts to circumvent any features, limitations, or restrictions of the Site or Services (including, without limitation, attempting to access, download, export, or otherwise use or exploit any software components using any automated means or tools);
(12) post or disseminate any unsolicited or unauthorized advertising or promotional messaging, junk mail, chain letters, pyramid schemes, or other commercial activities (except when and where such commercial activities are expressly authorized by Simerse); 
(13) reveal any other Services user’s real-world personal information, including, without limitation, such user’s first and last name, telephone number or street address; or 
(14) create or post any materials that are subject to third party rights, including without limitation, third party copyright, trademark, patent, trade secret, or other intellectual property rights without the express prior permission from the legal owner of such rights. 


The list of prohibitions above provides examples of prohibited conduct and is not intended to be a complete or exclusive list of all prohibitions. Without limiting the rights and remedies available to it, Simerse reserves the right in its sole discretion, to: (a) suspend or terminate access to your Account, the Site and/or the Services or your ability to post to the Site or the Services; and (b) refuse, delete, remove, move or edit the content, in whole or in part, of any Training Data or Feedback provided by you; with or without cause whatsoever, and with or without notice, for any reason or no reason, and to take any other action that Simerse determines in its sole discretion is necessary as a result of any behavior whatsoever by you that is illegal, inappropriate, disruptive to the Site, Services, or to any other user of the Site or the Services, or which otherwise breaches these Terms. Simerse may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in Simerse’s sole discretion, Simerse will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using the Site and/or the Services. These prohibitions do not require Simerse to monitor, police, remove or reject any Training Data, Feedback or other information submitted by you or any other user.

16. Electronic Communications

By using the Site and Services, you consent to receive electronic communications from Simerse, its parents, affiliates, subsidiaries and third party service providers. These electronic communications may include emails and notices about applicable fees and other charges, transactional information and other information concerning the Site and Services. These electronic communications are part of your relationship with Simerse and you receive them as a condition to you being permitted to use the Site and Services. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

17. Termination of Services and Your Account

Simerse reserves the right to do any of the following, at any time, without notice: (i) modify, interrupt, suspend or terminate operation of or access to the Site and/or Services, or any portion of the Site and/or Services, for any reason; and (ii) terminate your Account, and block your future access to the Site and Services, for any reason at any time, including, without any limitation, because of your violation or threatened violation of these Terms, the Privacy Policy, or any other applicable Simerse terms or policies that apply to your use of the Site or Services, (e.g., sharing your Account information with a third party, illegal or improper use of your Account, the Services, Software, or any other products or services of Simerse, or your infringement, misappropriation or violation of Simerse’s or a third party’s intellectual property or other proprietary rights). If you have more than one Account, Simerse may terminate all of your Accounts, usernames and personas. Simerse may, but is not required to, provide you with notice before terminating your Account. If your Account is terminated for any reason, no refunds or credits of any Fee-Based Services fees, or other fees will be paid to you.

All of Simerse’s obligations hereunder, will terminate upon the expiration or termination of these Terms.

18. Cancellation of Your Account

You may stop using the Services at any time by cancelling your Account by following the Account cancellation procedure specified on the Site, and immediately ceasing to access the Site and Services. You may also cancel any Fee-Based Services at any time by following the cancellation procedure specified on the Site, however, you will not receive a refund of any amounts owed or paid by you before the effective date of cancellation or expiration of any Fee-Based Services. If you do not agree to the then-current version of these Terms or the Privacy Policy, your sole and exclusive remedy is to not use, or in the event of changes to these Terms or the Privacy Policy, to stop using, the Site and Services and to cancel your Account.

19. Consequences of Termination

Upon termination of your use of the Site and Services for any reason, you will have no recourse against Simerse, its parents, affiliates, and subsidiaries, and its and their owners, officers, directors, contractors, employees, licensees, licensors, third party service providers, or agents, for your inability to use the Site and Services, and you must destroy any copies of Software (including, without limitation, the Simerse Tool) or Content in your possession, including, without limitation, any Software or Content downloaded, or otherwise obtained by you, through the Site or Services. Simerse has no obligation to return any Training Data to you, or to provide you with any Software, technology, materials or services to enable you to re-use all or part of your Training Data. Any obligations that apply to you under these Terms, which by their nature are intended to survive the termination of your use of the Site or Services, will continue to apply to you after you stop using the Site and Services. Without limiting the foregoing, your obligations to enforce the terms of your EULA with respect to end users to whom you sold or otherwise provided Training Data before the termination of your use of the Site and Services, will continue to apply until such end users no longer use the relevant Training Data.

20. Responsibility and Liability

Simerse will have no responsibility for the installation, training, and/or use of any of the Training Data by any end user. You will be solely responsible for any and all product warranties, end user assistance and product support with respect to your Training Data.

You will be solely responsible for, and Simerse will have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or attributable to, the Training Data and/or the publication and distribution of Training Data and/or the use of Training Data by any end user, including, without limitation: (i) claims of breach of warranty, whether specified in the EULA or established under applicable law; (ii) product liability claims; and (iii) claims that any of the Training Data and/or publication and distribution of Training Data and/or the end user’s possession or use of Training Data infringes the copyright or other intellectual property rights of any third party.

Simerse reserves the right to take steps which Simerse believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms. You agree that Simerse has the right, without liability to you, to disclose any registration data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Simerse believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms (including without limitation Simerse’s right to cooperate with any legal process relating to your use of the Services or Site, and/or a third-party claim that your use of the Services or Site is unlawful or infringes such third party’s rights.

21. Warranty Disclaimer

SIMERSE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES OR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME SIMERSE MAY REMOVE THE SERVICES OR SITE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICES OR SITE AT ANY TIME, WITHOUT NOTICE TO YOU.

YOU AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES, SITE, SOFTWARE, AND CONTENT IS SOLELY AT YOUR OWN DISCRETION AND RISK. THE SITE, SERVICES, SOFTWARE AND CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND, AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. NEITHER THE SOFTWARE NOR CONTENT HAS BEEN VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY SIMERSE, AND THEY MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL OR OTHER ERRORS. SIMERSE, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS DO NOT WARRANT THAT THE SITE, SERVICES, SOFTWARE OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THEY WILL BE UPDATED, OR THAT THE OPERATION OF THE SERVICES, SITE, OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED.

SIMERSE, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS, MAKE NO, AND HEREBY EXPRESSLY DISCLAIM, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY AND ALL OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, SERVICES, SOFTWARE AND CONTENT, INCLUDING, WITHOUT ANY LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING THROUGH COURSE OF DEALING OR TRADE. SIMERSE DOES NOT PROVIDE ANY WARRANTIES AGAINST MALWARE, VIRUSES, SPYWARE OR TROJAN HORSES THAT MAY BE INSTALLED ON YOUR COMPUTER AS A RESULT OF USING THE SERVICES, SITE, SOFTWARE OR CONTENT.

Some jurisdictions may not allow the exclusion and/or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, Simerse’s warranties and conditions with respect to the Site, Services, Software and Content will be applicable to the greatest extent permitted by applicable law in such jurisdiction.

22. Limitation of Liability

IN NO EVENT WILL SIMERSE’S, ITS PARENT’S, AFFILIATES’, AND SUBSIDIARIES’, AND ITS AND THEIR OFFICERS’, DIRECTORS’, EMPLOYEES’, CONTRACTORS’, LICENSORS’, LICENSEES’, THIRD PARTY SERVICE PROVIDERS’, AND AGENTS’ TOTAL, AGGREGATE LIABILITY TO YOU UNDER THESE TERMS OR OTHERWISE RELATING TO THE SITE, SERVICES, SOFTWARE OR CONTENT, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE GREATER OF: (1) ANY AMOUNT THAT YOU PAID TO SIMERSE FOR THE SPECIFIC FEE-BASED SERVICE FROM WHICH THE CAUSE OF ACTION OR CLAIM AROSE IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY; OR (2) ONE HUNDRED U.S. DOLLARS.

IN NO EVENT WILL SIMERSE, ITS PARENT, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXTRAORDINARY, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM THE SITE, SERVICES, SOFTWARE OR CONTENT OR ANY OTHER THIRD PARTY SERVICES OR PRODUCTS OFFERED ON OR THROUGH THE SITE, OR YOUR DISPLAYING, COPYING, DOWNLOADING, PERFORMING OR USING ANY OF THE FOREGOING (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWSOEVER ARISING, EVEN IF SIMERSE KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.

SIMERSE DOES NOT ENDORSE, WARRANT OR GUARANTEE, AND WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY FOR, ANY THIRD PARTY GOODS, PRODUCTS, SERVICES OR CONTENT AVAILABLE THROUGH THE SITE, SERVICES, SOFTWARE OR CONTENT OR THIRD PARTY WEB SITES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES.

You agree that fees hereunder are based in part on the limitation of warranty, limitation of liability and remedies set forth in these Terms to the maximum extent possible.

Some jurisdictions may not allow the exclusion or limitation of incidental, consequential, special, or other damages, so the above limitations or exclusions may not apply to you. In such event, the liability of Simerse, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents, for such damages with respect to the Services and Site will be limited to the greatest extent permitted by applicable law in such jurisdiction.

23. Indemnification

You hereby agree to defend, indemnify and hold harmless Simerse, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents (each an “Indemnified Party”) from and against any and all claims, actions, proceedings, demands, losses, costs, damages, liabilities, and expenses (including, without limitation, fees of attorneys and experts and costs of defense) incurred by the Indemnified Party in connection with any actual or alleged claim arising out of or related to: (1) your use or misuse of the Site, Services, Software or Content, or the use or misuse of the Services, Site, Software or Content by any person using your Account, user name or persona; (2) any breach by you of these Terms or any other terms applicable to your use of the Site, Services, Software or Content in any manner; (3) any actual or alleged violation or non-compliance by you with any applicable local, state, federal law, rule or regulation, including, without limitation, the infringement, misappropriation or violation of the intellectual property rights or other proprietary rights, privacy rights, publicity rights, or any other rights of a third party; (4) any interactions or dealings by you with other users of the Site and Services or any other third party in connection with your use of the Site and/or Services (including, without limitation, Epic Games and other web site and product providers); (5) any damage caused or alleged to have been caused by you to the Site, Service, Software or Content; and (6) any use of the Training Data, Feedback or other materials you provide to Simerse in connection with your use of the Site and Services, or any Training Data or Feedback provided by any person using your Account, user name or persona.

Counsel you select for settlement or defense of a claim must be reasonably acceptable to Simerse and/or the other affected Indemnified Party(s) before such counsel can be engaged to represent you and Simerse and/or the other Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the relevant Simerse and/or the other Indemnified Party(s) in the defense or settlement of any claim. Simerse and/or the other Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You agree that you will not, in any event whatsoever, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of Simerse or any other Indemnified Party(s) without the prior written consent of Simerse and/or the other affected Indemnified Party(s).

By using the Services and Site, you agree to indemnify and hold harmless Simerse, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents with respect to any claims arising out of any action taken by Simerse as part of its investigation of a suspected violation of these Terms or as a result of its finding or decision that a violation of these Terms has occurred. You agree you cannot sue or recover any damages from Simerse, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents as a result of its decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your access to the Services or Site, or to take any other action during the investigation of a suspected violation or as a result of Simerse’s conclusion that a violation of these Terms has occurred. This waiver and indemnity provision applies to all violations described in or by these Terms.

24. Legacy User Rights and Migration to New Terms of Use

If you have a current annual subscription to Simerse’s Services and Software which you purchased before the effective date of these Terms, then you may continue to use the Services and Software for the remainder of your current paid subscription term pursuant to the terms of service in effect immediately before the effective date of these Terms, including the right to continue distributing Training Data created with the Simerse Tool. When your current paid subscription for the Services and Software expire, you will no longer be able to use the Services and Software for any purpose except pursuant to these Terms.

25. General Terms

Governing Law. The laws of the State of Missouri, or where applicable the federal laws of the United States of America, excluding conflicts of law rules, govern these Terms. Your use of the Services and Site may also be subject to other applicable laws. Unless otherwise elected by Simerse in writing for a particular instance (which Simerse may do at its sole discretion), the state and federal courts seated in St. Louis, Missouri, will have exclusive jurisdiction in respect of any and all matters relating to these Terms, including, without limitation, any claim arising from, or relating to, your use of the Services, Site, Software, Content, and your provision of Training Data and Feedback, and any claim involving Simerse, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, or agents, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts. You acknowledge that any actual or threatened breach of these Terms by you may result in immediate, irreparable harm to Simerse for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach or threatened breach, and notwithstanding the provisions of this paragraph, Simerse may seek injunctive or other equitable relief in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or to any activities carried out by either party pursuant to these Terms. Furthermore, these Terms (including, without limitation, the use of the Site, Services, Software and Content) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related in any form to to UCITA.

Assignment. Simerse may completely and freely assign these Terms or any of its rights or obligations hereunder to any third party. Neither these Terms nor any obligations or rights hereunder may be assigned, delegated, or otherwise transferred by you without Simerse’s prior written consent, which consent may be withheld in Simerse’s sole discretion. Any attempted assignment in violation of this provision will be void. Subject to the foregoing, these Terms will inure to the benefit of the parties’ permitted successors and assigns.

Local Laws and/or Export Control. Simerse controls and operates the Site from its headquarters in the United States of America and the Site, Services, Software, Content, Training Data and Feedback may not be appropriate or available for use in other locations. If you choose to access the Site or use the Services from outside the United States of America, you do so on your own initiative, and you are solely responsible for complying with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Site and Services. Any offer for any services made on the Site or through the Services is void where prohibited. In particular, but without limitation, the Software may not, in violation of any applicable laws, rules or regulations be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. You agree to comply with all export and re-export restrictions and regulations of the U.S. Department of Commerce and any other U.S. or foreign agencies and authorities in connection with your use of the Site and Services and to not transfer, or authorize the transfer, of any Software to a prohibited country or otherwise, in violation of any applicable laws, rules or regulations.

Jury Trial Waiver. TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THESE TERMS. Any claim or cause of action arising under, or relating to, these Terms must be commenced by you within one (1) year after the claim or cause of action arises.

U.S. Government Customers. Any Software provided by Simerse through the Site or Services is a “Commercial Item” as that term is defined in 48 C.F.R. Sec. 2.101, consisting of “Commercial Computer Software”  (as defined in 48 C.F.R. Sec. 2.101) and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Sec. 12.212 or 48 C.F.R. Sec. 227.7202, as applicable. Consistent with 48 C.F.R.  Sec. 12.211 and 12.212, and 48 C.F.R. Sec. 227.7202-1 through Sec. 227.7202-4, as applicable, Software is being provided to U.S. Government Customers: (i) only as a Commercial Item; and (ii) with only those license rights as are granted to all other users pursuant to the terms and conditions of these Terms.  This U.S. Government Customers clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or computer software documentation.   

Third Party Beneficiaries. These Terms will not be interpreted or construed to confer any rights or remedies on any third parties whatsoever, except that each Indemnified Party will be deemed to be a third party beneficiary for purposes of these Terms. Therefore, each Indemnified Party will be entitled to directly enforce and rely upon any provision(s) of these Terms that confers a right or remedy in favor of such Indemnified Party.

Severability. If any part of these Terms is held invalid or unenforceable, that portion will be interpreted in a manner consistent with applicable law to reflect, as much as possible, the original intention of these Terms, and the remaining portions of the Terms will remain in full force and effect.

Waiver. Any waiver by Simerse of any right or provision of these Terms must in a writing signed by Simerse. The failure of Simerse to exercise or enforce any right or provision of these Terms will and does not constitute a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against you or Simerse.

Independent Contractors. Simerse and you are independent contractors, and nothing in these Terms is intended to create, or will be construed as creating, any employment, partnership, joint venture or comparable relationship.

Force Majeure. Simerse will have no liability to you or any third party for any failure by Simerse to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Simerse, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, failure or delay in transportation, civil commotion or other event of force majeure.

Questions. If you have any questions concerning these Terms, you may contact us by filling out the contact form on our website. Sending a message to Simerse does not create any special relationship between us. We cannot, and do not, commit to respond to all questions or communications that we receive.

Trademarks. Simerse, the Simerse logo, and other Simerse trademarks, service marks, graphics, and logos used in connection with the Site and Services are trademarks or registered trademarks of Overhead, LLC in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.

Entire Agreement. These Terms, any additional terms and conditions posted on the Site, and the Privacy Policy, together constitute the entire agreement between you and Simerse with respect to the Site, Services, Software and Content (excluding any Services or Software that Simerse may provide to you under a separate written agreement), and supersede, cancel and replace any and all other oral or written negotiations, discussions or agreements between you and Simerse in respect of the Site, Services, Software and Content. No Simerse employee or agent has the authority to vary these Terms. Simerse may notify you with respect to the Services and Site by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by a posting on the Services or Site. Notices will become effective immediately.

 

 

END

Simerse.com Terms of Service (10 December 2020)

© 2020 Overhead, LLC. All rights reserved.

Your privacy is very important to us. Please review the terms of our Privacy Policy. In order to use the Services, you will need to provide some personally identifiable information to us. We will collect, store and use such information in accordance with the terms of our Privacy Policy as amended regularly.