MoCap Online - Commercial License

This MoCap Online Commercial License (hereinafter referred to as the "Commercial License") constitutes a legally binding agreement between you, the licensee (hereinafter referred to as "You" or "User"), and Motus Digital, also known as MoCap Online (hereinafter collectively referred to as "MoCap Online"). This Commercial License, in conjunction with the MoCap Online Standard License Agreement, as they may be amended or updated from time to time (collectively, the "Agreement"), sets forth the terms and conditions under which You are granted the right to license and use the Content provided by MoCap Online. Any terms not explicitly defined in this Commercial License shall assume the meanings ascribed to them in the MoCapOnline.com Terms and Conditions. It is essential for You to thoroughly review the entire Agreement prior to completing your purchase to ensure a comprehensive understanding of the rights and obligations established herein.

1. DEFINITIONS

1.1 User Creative Work: This term refers to any movie, video, game, application, or product created by the User that incorporates Character Animation and/or Character Model(s) obtained from MoCap Online. The integration of the MoCap Online Content such as: Character Animation and/or Character Model(s) into the User Creative Work must be in such a manner that prevents their extraction for further distribution, reproduction, modification, or use outside of the User Creative Work.

1.3. Character Animation: This term is defined as a file containing character animation data, which is either owned by or licensed to Motus Digital, and which the User may acquire through the website store or any marketplace where these models are sold.

1.4. Character Model: This term refers to a digital 3D character model that is owned by or licensed to Motus Digital, and which the User may acquire through the website store or any marketplace where these models are sold. This definition includes the “Motus Man” model provided with any purchase of Character Animation.

1.5. Content: This term encompasses all, Character Animation, Character Models, movies, videos, photographs, graphics, icons, logos, text, images, audio clips, data compilations, documentation, and, UE4 Blueprints, visual scripting code, and other MoCapOnline content available from MoCapOnline's Site.

1.6 Project: For the purposes of this agreement, "Project" is defined as a complete and cohesive undertaking that results in User Creative Work which adheres to a single, unified theme or concept. This term includes all content that shares a common narrative, artistic direction, or gameplay mechanic, and is intended to be released as part of a singular user experience.

Examples of content considered within the same Project include multiple episodes within a single television season or updates and patches to a game that do not constitute a major version change.

However, any subsequent productions such as sequels, new game releases requiring separate purchases, movie sequels, new seasons of a television series, or major version releases of software (excluding mere bug fixes and minor updates) will be considered separate Projects. Each of these requires a distinct licensing agreement due to the introduction of new themes, narratives, or significant technical advancements.

1.7 Commercial Project: This term encompasses all User Creative Work, both digital and physical products that embed MoCap Online's animations and are intended for sale or monetization by you and/or your client. A project that incorporates Content under a Commercial License may include the development and delivery of client-specific work, the sale of User Creative Work to third parties, or the distribution of User Creative Work expected to reach or exceed one million end users. This definition also encompasses the use of MoCap Online's content across multiple, distinct projects, each necessitating its own Commercial License. Additionally, it accounts for projects featured on digital content platforms that achieve extensive viewership without direct monetization. A Commercial Project is characterized by its commercial intent, whether through direct sales, client services, or wide-reaching distribution, or monetization scheme (including but not limited to free games with advertising, in-app purchases, etc.) and includes the rights for transfer of license to clients or third parties, issuance of written certificates specifying license rights for specific projects, and scalability of license terms based on the project's reach and impact. The Commercial License applies only to projects with a total projected or actual revenue below $30 million. Projects with revenue exceeding this cap require a Studio or Custom Enterprise License.

1.8. End Users: This term refers to individuals or entities who download, view, use, or purchase your User Creative Work.

1.9 MoCap Online Standard License: The basic license provided by MoCap Online for Content, allowing use under standard terms and conditions.

1.10 MoCap Online Commercial Project License: This term refers to the license agreement detailed in this document, which permits the User to employ the Character Animation and/or Character Model(s) for commercial purposes that extend beyond the scope of the MoCap Online Standard License. This Commercial Project License governs the conditions under which such extended use is allowed. This license can only be obtained directly from MoCap Online through its official website, ensuring that all transactions and distributions are managed and authenticated by MoCap Online itself.

2. GRANT OF MOCAP ONLINE COMMERCIAL PROJECT LICENSE AGREEMENT

Upon payment of the applicable Fees, MoCap Online grants You a non-exclusive, non-transferable, revocable, limited right to use, modify, and reproduce the content worldwide, for a period of up to 50 years, as expressly permitted by this Agreement and subject to its terms. MoCap Online retains all rights, title, and ownership in the Content. The resulting User Creative Work is subject to the terms of this Commercial License. After the term of 50 years, Users may need to renew or upgrade their license for continued use of the content.

3. SCOPE OF COMMERCIAL LICENSE

When purchased, this Commercial License extends the rights granted under the MoCap Online Standard License to include the following:

1. License Transfer: The right to transfer the License to a client or third party for User Creative Work created specifically for a client or intended for resale.

2. Certificate of License Rights: The issuance of a written certificate specifying the License rights for a defined Project.

3. Audience Threshold: Permission to use Content in projects where the End User audience may exceed one million individuals.

4. Single Transfer Per License: Authorization for the transfer of one User Creative Work to a client or another entity per purchased Commercial License.

5. Special Considerations for Non-Monetized Projects: MoCap Online may, at its discretion, offer leniency or special considerations in cases where User Creative Work gains significant End User exposure without direct monetization.

6. License Upgrade Option: Users who wish to upgrade to a higher-tier license (e.g., Studio or Enterprise) may do so with full credit for the amount already paid towards the Commercial License.

7. No Discounts for Attribution: MoCap Online does not offer an attribution incentive program. Attribution of MoCap Online’s contributions is encouraged but not rewarded with any discounts or incentives.

8. Standard Pricing: No discounts or special pricing are available for educational or non-profit use. All licenses are subject to the standard pricing and terms.

4. ENTERPRISE LICENSE PROVISION: Custom Licensing Solutions.

4.1 Enterprise License Overview: Recognizing that the diverse and unique requirements of our clients may not be fully addressed by the terms of the MoCap Online Commercial Project License Agreement, MoCap Online offers the option to negotiate a custom Enterprise License. This Enterprise License is designed to cater to large-scale, high-impact projects or clients requiring tailored licensing solutions that go beyond the standard and commercial licensing frameworks. Custom Enterprise Licenses start at $6,999 and may vary based on the project scope and requirements.

4.2 Eligibility and Application: Clients interested in exploring a custom Enterprise License should demonstrate a project scope or requirement that significantly exceeds the limitations of the Commercial License. To initiate the process, the client is required to submit a detailed proposal outlining the nature of their project, specific needs unmet by the current licensing terms, number of animators using our animations to develop your User Creative Work (developer seats), how many projects (films, series, or games) you are estimating our animations will be used in, and any other relevant information that would necessitate a custom licensing arrangement.

4.3 Negotiation Process:

4.3.1 Initial Assessment: Upon receipt of the proposal, MoCap Online will conduct an initial assessment to determine the feasibility and necessity of entering into an Enterprise License agreement.

4.3.2 Consultation: If the initial assessment is positive, MoCap Online will engage in direct consultations with the client to understand their needs thoroughly and discuss potential terms of the Enterprise License.

4.3.3 Drafting and Review: Following successful consultations, MoCap Online will draft a custom Enterprise License agreement, which will then be reviewed by both parties to ensure it meets the specific requirements and expectations outlined during the negotiation phase.

4.4 Terms and Conditions: The terms and conditions of the Enterprise License will be custom-developed to suit the specific needs of the client and the project. These may include, but are not limited to, expanded usage rights, extended distribution capabilities, and bespoke support and maintenance agreements. All terms will be negotiated on a case-by-case basis to ensure mutual benefit and compliance with MoCap Online's overarching licensing policies. The Studio and Custom Enterprise Licenses are available for a one-time fee, covering usage in perpetuity, as per the terms specified.

4.5 Finalization and Approval: The Enterprise License agreement will be subject to final approval by both MoCap Online and the client. Upon reaching a mutual agreement, both parties will execute the Enterprise License, which will then supersede the Commercial License terms for the specific project(s) it covers.

4.6 Confidentiality and Privacy: Discussions, negotiations, and the terms of the Enterprise License agreement will be held in strict confidence by both MoCap Online and the client, protected under the existing confidentiality and privacy policies of MoCap Online.

4.7 Contact and Inquiries: Clients interested in pursuing an Enterprise License are encouraged to contact MoCap Online directly through [insert preferred contact method] to discuss their project and licensing needs further.

5. USAGE AND RESTRICTIONS.

The Commercial License allows use of Content in any manner permitted under the Standard License, subject to the same obligations and restrictions.

6. REGISTRATION AND COMPLIANCE.

6.1 Required Information Submission: When purchasing a Commercial License, You (the Licensee) are required to provide detailed information regarding the original Character Animations used in the specific Project(s) for which the Commercial License is acquired. This information is essential for validating the license, facilitating support, identifying compliance with licensing terms, and monitoring the project's adherence to these terms.

6.2 Detailed Information Requirements:

6.2.1 Licensee Identification:

• Full Legal Name: The full legal name of the person or entity acquiring the license, including any DBA (doing business as) names under which they operate.

6.2.2 Contact Information:

• Email: Primary contact email address for license administration and support communications.

• Phone Number: Primary contact phone number.

6.2.3 Project Details:

• Project Name or Code Name: The official or working title of the project. For unpublished projects, a project code name or internal link should be provided.

• Project Type: Description of the project category (e.g., video game, animation, architectural visualization, VR experience).

• Project URLs: URLs of any published projects or promotional websites. If not available, provide internal project management links.

• Animation Packs Utilized: Specific titles or identifiers of the MoCap Online Animation Packs used within the project.

• Usage Context: Brief description of how the animations are integrated into the project (e.g., character movement, background activity).

6.2.4 Promotional Permission:

• Consent: Licensee may opt-in or opt-out using a checkbox to grant MoCap Online explicit consent to use the project's name, images, or video clips for promotional purposes.

6.2.5 Development Timeline:

• Start Date: The project's estimated or actual start date, ensuring initial compliance with the Commercial License terms.

• Completion Date: The estimated or actual completion date, affirming compliance upon project finalization.

6.2.6 End User Estimate:

• Audience Size: An estimate of the projected audience or number of end users.

6.3 Compliance Assurance: The Licensee must ensure that the project remains in compliance with all terms of the Commercial License from the start date through the completion date and beyond, into the distribution and operational phases of the project. This includes adherence to usage rights, promotional permissions, and any restrictions or obligations outlined in the Commercial License.

6.4 Privacy and Data Handling: All information provided will be treated with the utmost confidentiality and will be processed in accordance with MoCap Online's Privacy Policy. The collection and use of this information are solely for the purposes of license management, support, compliance verification, and, where permitted, promotional activities. MoCap Online commits to maintaining the privacy and security of the licensee's data, adhering to industry-standard practices.

7. COPYRIGHT AND OWNERSHIP.

All Content is protected by U.S. and international copyright laws and treaties. MoCap Online retains ownership of the Content but grants You certain rights to use the Content as per the terms of this Agreement. All other rights are expressly reserved by MoCap Online.

8. ARTIFICIAL INTELLIGENCE USAGE CLAUSE

8.1 Permission for AI Applications: The User acknowledges and agrees that any use of MoCap Online's animations, character models, or any other digital assets (hereinafter referred to as "Animations") in connection with artificial intelligence applications, machine learning, systems, or solutions (collectively, "AI Applications") is strictly prohibited under the Commercial License. Any such use requires explicit and prior written permission from MoCap Online and the acquisition of a Custom Enterprise License.

8.2 Request for Permission: To seek permission for such use, the User must submit a detailed request to MoCap Online, outlining the nature of the AI Application, the specific Animations to be used, the context and manner of their use, and any other information deemed relevant by MoCap Online. This request should be sent to the designated contact point provided by MoCap Online.

8.3 Evaluation of Request: MoCap Online reserves the right to evaluate each request on a case-by-case basis. The decision to grant or deny permission will be made at MoCap Online's sole discretion, based on factors including but not limited to the potential impact on MoCap Online's intellectual property, the nature of the AI Application, and compliance with applicable laws and regulations.

8.4 Terms of Use: In cases where permission is granted, MoCap Online will specify the terms and conditions under which the Animations may be used in the AI Application. The User agrees to adhere strictly to these terms. Any deviation from the agreed terms may result in the immediate revocation of the granted permission.

8.5 Intellectual Property Rights: The User acknowledges that all intellectual property rights in the Animations remain the property of MoCap Online and that no transfer of ownership or infringement of these rights is permitted under this clause. The use of Animations in AI Applications does not confer any additional rights to the User beyond those explicitly granted by MoCap Online.

8.6 Indemnification: The User agrees to indemnify and hold harmless MoCap Online against any claims, damages, losses, or expenses arising out of or in connection with the unauthorized use of Animations in AI Applications.

9. MODIFICATIONS TO TERMS OF USE: UPDATES AND AMENDMENTS TO AGREEMENT. 

9.1 Notification of Changes: MoCap Online reserves the right to modify, amend, or update this Commercial Project License Agreement at any time and at its sole discretion. In the event of any such changes, MoCap Online will provide notice to the User by posting the revised Agreement on the MoCap Online website and updating the "Last Updated" date at the top of the Agreement. MoCap Online may also, at its discretion, notify Users of such changes via email or other direct communication methods, particularly if the changes significantly affect Users' rights or obligations under this Agreement.

9.2 Review and Acceptance of Changes: It is the User's responsibility to regularly review this Commercial Project License Agreement for any changes. Continued use of MoCap Online's Content, Services, or any other materials provided under this Agreement after any such changes have been made will constitute the User's consent to and acceptance of the amended Agreement. If the User does not agree to any changes to the Agreement, the User must discontinue using MoCap Online's Content and associated services immediately.

9.3 Effective Date of Changes: Any changes, modifications, or amendments to this Commercial Project License Agreement shall become effective immediately upon their posting on the MoCap Online website unless otherwise noted. In certain cases, MoCap Online may specify a later effective date for changes.

9.4 Archival of Previous Versions: MoCap Online shall maintain an archive of all previous versions of this Commercial Project License Agreement and make them available upon request. Users are encouraged to review these versions to understand the nature and extent of the changes made.

9.5 Stakeholder Communication: In addition to direct User notifications, MoCap Online will also inform its stakeholders, including but not limited to partners, affiliates and third-party vendors, of any significant changes to this Agreement. This ensures that all parties involved in the broader ecosystem of MoCap Online, including those who may indirectly interact with or be affected by the licensed Content, are aware of and operate under the latest terms and conditions. This comprehensive communication strategy is designed to maintain transparency and alignment among all entities associated with MoCap Online's services and products.

10. GENERAL TERMS.

10.1 Enforcement and Violation Consequences: 

Users should maintain accurate records of their use of MoCap Online's assets, including details of the projects and the nature of their commercial use, to demonstrate compliance with this Agreement. In the event of a breach of this Agreement, the User shall be liable for a penalty fee of $10,000, in addition to any other applicable damages or legal remedies.

1. Monitoring and Enforcement: The User is required to register their project with MoCap Online for whitelisting, ensuring their compliance and legal status. Whitelisting will prevent unintended enforcement actions against the use of MoCap Online's animations.

2. Consequences of Violations: In the event of a breach of this Agreement, including unauthorized use, distribution, or modification of MoCap Online's assets:

I. Termination of License: MoCap Online may immediately terminate the User's license, disable the User's account, and prohibit further access to MoCap Online's services. In the event of a breach of this Agreement, MoCap Online reserves the right to terminate or revoke the license, in addition to other rights at law and/or equity. Upon such termination, you must cease all distribution of the User Creative Work containing MoCap Online's Content and remove said Content from it. No refund of fees will be provided for terminated accounts due to breach.

II. Legal Action and Financial Penalties: MoCap Online reserves the right to take legal action against the User for violations, which may include claims for damages and injunctive relief. The User may also be subject to financial penalties or required to pay restitution to MoCap Online for any losses incurred due to the User's violation of the Agreement.

III. Notification of Violation: MoCap Online will notify the User of any potential violation, providing an opportunity to respond and, where possible, rectify the breach within a specified timeframe.

IV. Appeal Process: Users have the right to appeal against enforcement actions taken by MoCap Online. Appeals must be submitted in writing and will be reviewed by MoCap Online's legal team.

3. Client Compliance: In cases where the User Creative Work is created for a client, the client is also bound by the terms of this Commercial License Agreement. It is the User's responsibility to ensure that their clients are fully informed about and comply with these terms. Any violation by the client will be considered a violation by the User and may result in the same consequences as if the User had committed the violation directly.

4. Remedial Actions: In cases of non-compliance, MoCap Online may, at its discretion, offer the User an opportunity to take remedial actions to correct the violation before imposing penalties or terminating the license. This may include adjusting the use of the Content to comply with the terms, purchasing additional licenses, or other corrective measures as deemed appropriate by MoCap Online.

5. Reinstatement: Following a violation and subsequent termination of the license, MoCap Online may, at its discretion, allow for reinstatement of the license upon the User's full compliance with the Agreement terms and payment of any applicable fines or fees.

6. Audit Rights: MoCap Online reserves the right to conduct audits on the User's use of the Content to ensure compliance with this Agreement. The User agrees to cooperate fully with any such audits and to provide access to all relevant materials.

7. Support services are provided equally across all license types without any differentiation or prioritization based on license tier.

10.2  Entire Agreement.

This Agreement constitutes the entire agreement between you and MoCap Online concerning your use of the Content. If any provision is deemed invalid, the remaining provisions will remain in full force and effect. In case of inconsistencies between this License and the MoCap Online Terms and Conditions, this License prevails to resolve the inconsistency.

10.3 Waiver.

Failure by MoCap Online to enforce any right or provision under this License does not constitute a waiver of such right or provision.

10.4 Disclaimer of Warranties.

All Content is provided "as is" without any warranties, express or implied. MoCap Online does not warrant that the Content will meet your specific requirements.

10.5 Notice.

All notices to MoCap Online should be sent via email to info@Motusdigital.com. Notices to you will be sent to the email associated with your account.

10.6 Limitation on Liability.

MoCap Online's liability is limited to the fees paid for the Licensed Asset. They will not be liable for any indirect or consequential damages arising from this Agreement.

10.7 Arbitration Clause.

3. Agreement to Arbitrate: This agreement contains a binding arbitration provision. By accepting the terms of this Commercial License, both you (the Licensee) and MoCap Online agree that any and all disputes or claims that have arisen or may arise between you and MoCap Online, whether arising out of or relating to this Commercial License (including any alleged breach thereof), the Content, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.

4. Procedural Rules for Arbitration: The arbitration shall be conducted by the American Arbitration Association ("AAA") under its rules and pursuant to the terms of this Agreement. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Dallas, Texas. The arbitration proceedings shall be held in English. The governing law of this arbitration agreement shall be the law of the state of Texas.

5. Arbitration Costs: Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. Each party will be responsible for their own attorney's fees, and the arbitrator may not include the payment of attorneys' fees in an award.

6. Arbitrator's Powers: The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Commercial License, including but not limited to any claim that all or any part of this arbitration clause or Commercial License is void or voidable.

7. Waiver of Jury Trial: YOU AND MOCAP ONLINE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and MoCap Online are instead electing that all claims and disputes shall be resolved by arbitration under this arbitration clause, except as specified in Section 11.1 above regarding small claims court.

8. Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the mutual benefit of all parties.

9. Severability and Survival: If a court or the arbitrator decides that any term or provision of this arbitration clause (other than the subsection 11.5 "Waiver of Jury Trial") is invalid or unenforceable, the parties agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this arbitration clause will remain in full effect. Moreover, this arbitration clause shall survive the termination of your relationship with MoCap Online.

10. Modification: Notwithstanding any provision in this Commercial License to the contrary, we agree that if MoCap Online makes any future change to this arbitration provision (other than a change to the notice address for MoCap Online), you may reject any such change by sending us written notice within 30 days of the change to MoCap Online’s notice address provided in this agreement.

10.8 Indemnification.

MoCap Online will indemnify you against third-party infringement claims for Content purchased from them. You are responsible for ensuring that your use of the Content does not infringe on third-party rights and You indemnify MoCap Online against claims arising from such infringement. Both parties agree to indemnify each other for any breach or violation of this agreement.