Unity Cloud Master Services Agreement
Last updated: July 31, 2020
This Master Services Agreement (“Agreement”), along with any applicable Additional Terms (see Section 1.2 below) (collectively, the “Terms”) sets forth the terms and conditions that govern the relationship between Unity Technologies SF and its Affiliates (collectively, “Unity”) and Customer (each a “Party,” together the “Parties”) and Customer’s use of the Unity Cloud Services (“Services”). If Customer has entered into another agreement signed by Unity concerning specific Services, then the terms of that agreement control where it conflicts with this Agreement. As discussed more in Section 1.4 below, Customer retains all rights and ownership in Customer’s Project Content (defined below).
This Agreement is effective as of the date Customer accepts this Agreement, which includes: (1) clicking a box or signing indicating acceptance, (2) executing a service order that references this Agreement, (3) accessing the Services or (4) using free or trial services provided by Unity or any of its Affiliates. If the individual entering into this Agreement is accepting the Agreement on behalf of a company or other legal entity and its affiliates, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. Capitalized terms have the definitions set forth in Section 12 below. If the individual accepting this Agreement does not have such authority, or does not agree with these terms, such individual must not accept this Agreement and is not authorized to use any of the Services.
1. Provision and Use of Unity Cloud Services.
1.1 Provision of Services.
Unity shall make the Services available to Customer pursuant to this Agreement, and any applicable Service Orders (“Orders”) and Statements of Work (“SOWs”). In the event of conflict between the Terms and any Order, SOW, schedule or attachment, the terms and conditions of this Agreement will prevail unless explicitly stated otherwise in such Order, SOW, schedule or attachment.
1.2 Additional Terms.
Unity Cloud Services and Service Software may be subject to one or more of the additional service terms (“Additional Terms”), available at www.unity3d.com/legal. Unity may offer various Services plans with different features and prices. Where available, the details of the plans are available on Unity’s website at unity3d.com or unity.com (collectively, the “Site”), including any functionality, restrictions, and/or other distinguishable features of the plans. Customer should review and be aware of these plans and their details when selecting the best Unity Cloud Services plan for Customer’s organization. Unity reserves the right, at its sole discretion, to modify, discontinue or terminate the Services and any features.
1.3 Use Rights.
In accordance with the Terms, applicable Orders and SOWs, Unity grants to Customer a limited, revocable, non-sublicensable, non-transferable, royalty-free license for Customer and its Users: (i) to access and use the Services; and (ii) to use the Service Software and Service Materials only in connection with the permitted use of the Services. Any use of Unity Software (Unity Pro, Unity Plus and Unity Personal) in conjunction with or separate from Services requires a separate, valid agreement between Customer and Unity. No license to use Unity Software is granted or implied by use of the Services or this Agreement.
Customer owns and is solely responsible for the development, operation and maintenance of its Project Content, including properly configuring Project Content for the Services in accordance with the then-current Service Materials, ensuring that calls or requests made to the Services are compatible with the then-current Service APIs and Service Documentation, complying with any first-party and platform owner technical and other requirements necessary for the Services, providing support to end users of Customer’s Project Content and resolving any legal claims related to Customer’s Project Content.
Customer agrees that it will not, and will not allow third parties under its control to misuse the Services, including the Service Software, including: (i) violating any applicable laws, codes or regulations; (ii) engaging in or promoting behavior that is defamatory, pornographic, obscene, indecent, abusive, threatening, harassing, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or violative of third party privacy rights; (iii) introducing into the Services any virus or other contaminating or malicious program or fail to use reasonable commercial efforts to maintain an up to date virus-scanning program; (iv) infringing the intellectual property rights, privacy rights, rights of publicity or other rights of any person or entity; (v) copying, modifying, creating a derivative work of, reverse engineering, decompiling, translating, disassembling any part of the Services or Services Materials, or otherwise attempting to extract any or all of the source code of the Services or Service Materials; (vi) using any technology or other means to automate the creation of any account or credentials for the Services (such as creating accounts in bulk) or manipulating the admin panel or any other interface; (vii) attempting to probe, scan, test the vulnerability of, interfere with or disrupt any part of the Services or any related network or computer system; (viii) using, accessing or allowing access to any of the Services or Service Materials in any manner to provide service bureau, time-sharing or other similar services; (ix) accessing or using the Services or Service Materials in order to develop any competing product or service functionality similar to the Unity Cloud Services, Unity Software or other Unity products and services; (x) attempting to circumvent any limits or any technical, timing or use restrictions applicable to the Services (including the Service Materials); or (xi) selling, reselling, renting, sublicensing, supplying or leasing any part of the Services or Service Materials unless authorized in writing by Unity.
2. Provision and Use of Third-Party Cloud Services.
Unity acts as a reseller for certain third-party cloud services (“Third-Party Services”). Customer may choose to buy Third-Party Services by agreeing to the provider’s terms of service referenced on the Order (“Third-Party Terms”).
Unity is not a party to the Third-Party Terms. Except for Sections 3 and 5 related to account creation and billing, this Agreement does not apply to Third-Party Services.
3. Account; Account Security.
A Unity account (or other accounts as directed by Unity) is required to use Unity Cloud Services. A license to use the Unity Software is not required to subscribe to and use the Services. The Terms govern Customer’s use of the Services whether Customer’s use and/or subscription is in conjunction with other Unity Software, products and services.
Customer is responsible for maintaining the security of all passwords, API keys and other credentials issued to or created by Customer and its Users. Customer is responsible for any and all activities that occur on, through or under any such credentials or otherwise in connection with Customer’s Project, Project Content, or Customer’s accounts, whether undertaken by Customer or its Users, and Customer agrees that Unity is not responsible for any such activities. Customer acknowledges that this includes the use of the administrative interface that allows for configuration, management and monitoring of the Services. Customer also agrees to immediately notify Unity of any unauthorized use of any such account or any credentials, as well as any other security breach related to any such Unity account, Customer’s Project Content, Project, or use of the Services.
4. Term & Termination.
This Agreement commences on the date Customer accepts it and continues until the later of (i) the expiration or termination of all Orders and SOWs entered into under this Agreement, (ii) user subscriptions granted in accordance with this Agreement have expired or been terminated, or (iii) the termination of this Agreement pursuant to Section 4.2 or by operation of law.
Either Party may terminate this Agreement, or an individual Order or SOW, at any time upon written notice to the other Party if the other Party is in breach of any material term of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice thereof from the non‑breaching Party. Notwithstanding the foregoing, Unity may immediately terminate this Agreement, Order and/or SOW, or suspend or disable Customer’s account (as set forth in Section 4.4), if such breach is caused by Customer engaging in any of the Restrictions listed in Section 1.5. The Parties agree that nonpayment of fees due under the Agreement constitutes a material breach, for which Unity may, at its option, exercise its termination rights and/or suspend Customer’s access to applicable Services until such fees are paid.
4.3 Effect of Termination.
The termination or expiration of this Agreement for whatever reason will not affect Customer’s payment obligations which have accrued prior to termination. Upon expiration or termination of this Agreement: (i) all rights and licenses granted from one Party to the other shall immediately cease; (ii) Unity shall have no further obligation to provide the Services to Customer, including without limitation to provide any support or software updates to Customer; (iii) all fees owed by Customer to Unity are immediately due upon the earlier of (a) the receipt of the final invoice or (b) expiration or termination of the Agreement; and (iv) upon request, each Party will use commercially reasonable efforts to destroy or return all Confidential Information of the other Party.
Unity will have the right in its sole discretion, and without prior notice to Customer, to suspend or disable Customer’s Unity account and/or Customer’s right or ability to access or use any of the Services if: (i) Customer’s use of the Services poses a security risk to, or otherwise adversely impacts, the Services or any third party; (ii) Customer’s use of the Services subjects Unity or any third party to liability; (iii) Customer’s use of the Services violates any Section 1.5 Restriction, including a violation of export laws and regulations; or (iv) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Fees for Services are set forth on the Site or via the Services’ online dashboard and administrative panel (the “Service Panel”). Unity may increase, modify or add new fees and charges for any of the Services from time to time by posting such changes to the Site or within the Services Panel. Unity will provide Customer with at least thirty (30) days’ notice of any material changes affecting existing Services that Customer may already be using, and Customer’s continued use of such Services after the effective date of any such change means that Customer accepts and agrees to such changes, as applicable. If Customer does not agree to any such material change, Customer may discontinue use of the Service and provide any termination notice in accordance with this Agreement and any applicable Orders. Customer agrees to pay all amounts due for the Services as set forth in the online cart, Order, SOW or invoice and in accordance with Unity's payment terms and, if applicable, those of any payment processor.
Customer will provide Unity with valid and updated credit card information, or with a valid purchase order or alternative documentation reasonably acceptable to Unity. If Customer provides credit card information to Unity, Customer authorizes Unity to charge such credit card for all subscribed Services listed in the Order for the initial service term and any agreed upon renewal service term(s) in accordance with the billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Customer will be invoiced in accordance with the relevant Order. Customer is responsible for providing complete and accurate billing and contact information and notifying Unity of any changes to such information. Customer will pay all undisputed fees in U.S. currency and no later than thirty (30) days from the date of such invoice (“Payment Due Date”) unless otherwise stated in a mutually executed Order. Customer’s obligation to pay fees is non-cancellable. Payments made via wire transfer must include the bank information provided by Unity. Without limiting Unity’s rights or remedies, unpaid invoices: (i) will accrue late interest at a rate of 1.5% of the outstanding balance per month, or the legal maximum rate, whichever is lower, plus all reasonable expenses of collection; (ii) will entitle Unity to modify payment terms for future renewals of this Agreement and other agreements with Unity; and/or (iii) will entitle Unity to suspend Customer’s access to the Services.
All fees payable under this Agreement must be paid in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Customer’s receipt of Services, except for taxes based on Unity’s net income. In the event that Unity is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Unity. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Unity with written documentation of such tax payments, including receipts, within forty five (45) days of making payment to Unity.
6. Intellectual Property Rights; Customer Data.
Customer hereby grants Unity a non-exclusive, royalty-free license to access, collect, display and use Customer Data and Project Content in order to provide, operate, develop, improve and/or optimize Unity products and services and to provide technical support services to Customer hereunder.
Except as expressly set forth under the Terms, any applicable Orders and/or SOWs, this Agreement does not grant either Party any rights, implied or otherwise, to the other Party’s content or any of the other Party’s intellectual property. As between Customer and Unity, Customer owns all right, title and interest (including all intellectual property and proprietary rights) in and to Customer Data and Project Content, excluding any Unity technology embedded therein, and Unity owns all right, title and interest (including, all intellectual property and proprietary rights) in and to the Services and Service Materials. Unity will not access, collect, display or use Customer Data and Project Content, except as authorized herein.
"Confidential Information" includes all information disclosed by a Party or its Affiliate (the “Disclosing Party”) to the other Party or its Affiliate (the “Receiving Party”), that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. "Confidential Information" does not include information that: (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with the Terms; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party.
The parties agree to hold each other’s Confidential Information in strict confidence and not to use or disclose it in any way, commercially or otherwise, except as necessary to perform this Agreement. Recipient agrees to take all actions reasonably necessary to protect the confidentiality of all Confidential Information including, without limitation, implementing and enforcing procedures to minimize the possibility of unauthorized use or disclosure of Confidential Information.
If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure.
8. Representations & Warranties.
Each Party represents and warrants that (i) it has the full power and authority to enter into this Agreement; and (ii) it will comply with all laws and regulations applicable to the provision or use of the Services, as applicable.
8.1 Customer’s Representations & Warranties.
Customer represents and warrants that: (i) Customer is the owner, or legally authorized to act on behalf of the owner, of the Project Content and Customer Data; (ii) Customer has and will maintain all necessary rights, power, licenses and authority to enter into this Agreement and to perform the acts required hereunder and to permit Unity to perform its obligations, and exercise any rights or licenses granted by Customer hereunder; (iii) Project Content is in compliance with the Terms, including Section 1.5; (iv) Project Content, Customer and Customer’s activities in connection with the Services will comply with all applicable laws and regulations; (v) Customer will obtain and comply with any and all applicable consents, authorizations and clearances from its end users to allow Unity to collect, use, store, process and transfer Customer Data as contemplated herein; and (vi) Customer is not located in a country embargoed by the United States and Customer is not on the U.S. Treasury Department’s list of Specially Designated Nationals.
8.2 Unity’s Representations & Warranties.
Unity warrants by law that it will provide the Services in accordance with the applicable SLA, provided that the only remedies for breach of this warranty are those remedies stated in the applicable SLA. Except as explicitly stated in this Agreement, Unity disclaims all warranties, whether express or implied, written or oral, statutory or otherwise, with respect to the Services and Service Materials, including any warranty of title, merchantability or fitness for a particular purpose. Customer will make no warranty, express or implied, on behalf of Unity. Unity makes no warranty or representation whatsoever, including selection or compatibility, with respect to any third party software or any hardware that may be used in connection with the Services or Services Materials. Unity cannot guarantee that access to any Services will be uninterrupted or error-free, that defects will be corrected or that the Services will be secure.
Customer will indemnify, defend and hold harmless Unity and its Affiliates and each of the foregoing’s respective officers, directors, employees, agents and contractors (each an “Indemnified Party”) on demand from and against any third party claims, suits, actions or allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees and expenses (including reasonable attorneys fees and expenses) (collectively “Losses”) arising out of or related to any actual or alleged: (i) breach by Customer of any part of the Terms, including any of its representations or warranties; (ii) Unity’s use of any content or technology that Customer requires Unity to use; and (iii) any negligent act or willful misconduct by Customer or any party acting on Customer’s behalf. At Unity’s option, Customer will assume control of the defense and settlement of any matter for which Customer is required to indemnify any Indemnified Party (provided that, in such event, Unity may at any time elect to take over control of the defense and settlement of any such matter). Customer may not enter into any settlement for which indemnity is sought unless Unity gives its prior written approval of the settlement.
10. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNITY’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY CUSTOMER IN THE PRECEDING THREE (3) MONTHS GIVING RISE TO THE CLAIM; OR (B) ONE THOUSAND U.S. DOLLARS (US$1000). IN NO EVENT WILL UNITY, ITS AFFILIATES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SERVICES, OR FROM THE USE OR INABILITY TO USE APPLICABLE SERVICE SITES, COMMUNITIES OR WEBSITE CONTENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT UNITY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
If Customer provides Unity with any ideas, proposals, suggestions, feedback or materials relating to the Services, Services Materials, other Unity technology, or otherwise relating to Unity’s business (“Feedback”), Customer agrees that such Feedback is given voluntarily and will not constitute Confidential Information of Customer, and hereby grants to Unity all right, title and interest (including all intellectual property and proprietary rights) in and to any Feedback, which Unity, its licensees and business partners may exploit without restriction or obligation.
Unity may include Customer’s name, logo and assets on its customer lists, including on Unity’s website and in sales and marketing materials, and disclose generally the nature of any work being performed hereunder or under any Service Order provided that such inclusion does not disclose Customer’s Confidential Information. Neither Party may use the other’s name or logo in any press release without such Party’s prior written consent. Upon request, Customer will provide Unity with at least one quote from an authorized service Customer representative for use in connection with any mutually agreed upon publicity.
11.3 Relationship of the Parties.
The Parties have the status of independent contractors, and nothing in this agreement shall be deemed to place the Parties in the relationship of employer-employee, principal-agent, partners or joint venturers, nor to confer on either Party any express or implied right, power or authority to enter into any agreement or commitment on behalf of the other Party, nor to impose any obligation upon the other Party.
11.4 Force Majeure.
Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control and arising through no fault of its own, including but not limited to any act of God, labor shortages or strikes, fire, natural disaster, war, accident, act of government or regulation, terrorism, epidemic or pandemic, shortage of materials or supplies.
Except as otherwise specified under this Agreement or agreed upon by the Parties, all notices required or permitted under this Agreement must be in writing. Any notices from Unity to Customer will be sent via email to the address provided to Unity. Notices to Unity should be sent via email to firstname.lastname@example.org; provided, however, that any notice to Unity concerning termination, breach, indemnification or any other legal concern (collectively, “Legal Notice”) must be made in writing and delivered by hand delivery, or by internationally recognized overnight courier service, or by prepaid, certified U.S. mail return receipt requested to:
30 3rd Street
San Francisco, CA 94103, USA
Attn: Legal Department
Notices will be effective upon receipt; provided that notices sent by email will be effective as of the email date absent receipt by the sender of a bounce back or error message, and provided further that Legal Notices to Unity will be effective only if made and delivered in the manner expressly set forth above.
11.6 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, which shall apply without regard to choice or conflicts of law rules or the United Nations Convention on Contracts for the International Sale of Goods.
Arbitration. Except as set forth herein, any dispute arising out of or in connection with the Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration in San Francisco, California. Notwithstanding the Parties’ agreement to resolve all disputes through arbitration, either Party may bring an action in court: (a) to enforce its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), including without limitation to seek injunctive relief; (b) in cases that do not involve intellectual property rights, to seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages); or (c) collect fees due pursuant to the Agreement.
Jurisdiction. If Customer resides (or its principal place of business is) within the United States, and the Parties have an intellectual property rights dispute, Customer and Unity agree to submit to the personal and exclusive jurisdiction and venue in the state and federal courts located in San Francisco County, California. If Customer resides (or its principal place of business is) outside of the United States and the Parties have an intellectual property rights dispute, Customer and Unity agree to submit to the personal and exclusive jurisdiction and venue in the courts located in Copenhagen, Denmark. The Parties agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Orders), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
If any term, of part thereof, of this Agreement is invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in effect.
The following Sections will survive expiration or termination of the Agreement: 4.3. Effect of Termination, 5. Payment, 6. Intellectual Property Rights, 7. Confidentiality, 8. Representations & Warranties, 9. Indemnification, 10. Limitation of Liability, 11.1. Feedback, and 12. Definitions.
“Affiliates” means an entity which controls, is controlled by or is under common control with a Party, where “control” means the power to control the composition of the board of directors of the relevant Party (whether by contract, corporate law or other means), or the possession of more than half of the voting equity share capital of the relevant Party, or the ability to consolidate such company’s financial statements with those of such Party in accordance with generally accepted accounting principles.
“Customer Data” means electronic data and information provided to Unity by Customer (or at its direction) via the Services, excluding Project Content and non-Unity applications.
“Feedback” means any suggestions or other feedback you provide to Unity or its affiliates regarding improvements or additional features or functionality for the Services, including, suggestions or feedback you post to the Site or other forums on properties owned or maintained by Unity.
“Project Content” means games, applications, media, software or other content that Customer develops, manages, configures, deploys and/or delivers utilizing Unity Cloud Services.
“Service APIs” means the application programming interfaces referenced in the Service Documentation and made available by Unity for use in connection with the Services.
“Service Documentation” means the instructions, requirements, guidelines and other documentation made available or otherwise provided by Unity (as such instructions, requirements, guidelines and documentation may be modified and updated from time to time by Unity).
“Service Materials” means Service APIs, and Service Documentation or other materials made available by Unity.
“Service Software” means any software libraries and sample code provided by Unity to you for use in connection with the Unity Cloud Services. For clarity, Service Software is included in the definition of “Services.”
“Sites” means the pages, subpages, content and information related to Unity Cloud Services, including the related dashboards and administration tools.
“SLA” means each of the then-current service level agreements applicable to the Unity Cloud Services.
“Taxes” means any duties, customs fees, or taxes (other than Unity’s income tax) associated with the subscription to the Services, including any related penalties or interest.
“Third Party Services” and “Third Party Terms” means cloud services provided by third parties other than Unity or its Affiliates, resold by Unity and subject to the terms and conditions of the applicable third party service provider.
“Unity Cloud Services” or “Services” means all cloud-based services, solutions and tools provided by Unity or its Affiliates, including related Service Software, that enable customers to build, manage, develop, configure and deliver applications and experiences to end users.
“Unity Software” means all software products, versions and updates that Unity and/or its Affiliates have made available for download or deployment on customers premises, including but not limited to Unity Pro, Unity Plus and Unity Personal software products identified on Unity’s website.
“Users” means Customer, its employees, its contractors and any other individuals affiliated with Customer who use or access any of the Unity Cloud Services, subject to any restrictions that Unity may impose in its sole discretion.