YourFit Customer Terms & Conditions
PLEASE READ THESE CUSTOMER TERMS & CONDITIONS CAREFULLY. THESE CUSTOMER TERMS AND CONDITIONS (“Terms”) ARE ENTERED INTO BY AND BETWEEN 3DLOOK INC. (“3DLOOK”, “Company”, “we” or “us”) AND THE INDIVIDUAL OR LEGAL ENTITY USING OR LICENSING THE SERVICE UNDER THESE TERMS AND THE APPLICABLE ORDER FORM (“Customer” or “you”). THESE TERMS TOGETHER WITH THE APPLICABLE ORDER FORM(S) GOVERN CUSTOMER’S ACCESS AND USE OF YOURFIT SOLUTION (“YourFit” or “Service”). BY ACCEPTING THESE TERMS WHILE EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, CUSTOMER AGREES TO THESE CUSTOMER TERMS & CONDITIONS.
1. BINDING CONTRACT
These Terms and any Order Form(s) (as defined below) together form a binding “Contract” between Customer and 3DLOOK. If any terms in Section 13.3 below apply to Customer, the respective agreements referenced therein are also incorporated herein by reference and form part of the Contract. If you do not agree to the provisions of these Terms, please do not connect, access, or use the Service in any manner.
If you are entering into the Contract with us on behalf of your employer or another entity, you represent and warrant that: (i) you have the full legal authority to bind your employer or such entity to the Contract; (ii) you have read and understood these Terms and any applicable Order Form; and (iii) you are entering into the Contract on behalf of the party that you represent. Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.
If you are entering into a Contract with us as an individual and not on behalf of a legal entity, you must be at least 18 years of age (or the equivalent minimum age in the relevant jurisdiction) or older to use the Service.
Company reserves the right, at its discretion, to change, modify, add or remove portions of these Terms at any time by posting such changes to this page. Company will make its best efforts to notify all Customers of such changes. Customer acknowledges and agrees that Customer has the affirmative obligation to check these Terms periodically for changes, and Customer hereby agrees to periodically review these Terms for such changes. Customer’s continued use of Service following the posting of changes to these Terms will constitute Customer’s acceptance of those changes.
Customer will subscribe to the Service by executing an Order Form which shall define: (i) the subscription term; (ii) applicable features of the Service to which Customer subscribes; (iii) subscription fees to be paid by Customer and payment terms; and (iv) any other subscription terms that may be agreed upon by the Parties (“Order Form(s)”).
Customer may subscribe to additional features of the Service (if this option is made available by Company) by executing an additional Order Form. These Terms will apply to all additional Order Form(s).
Each Order Form executed by the Parties is governed by these Terms and is subject thereto. If there is a conflict between these Terms and the Order Form, then the corresponding Order Form shall govern.
Upon expiration of the subscription term, the applicable Order Form may be renewed and/or replaced by a new Order Form subject to the terms defined therein.
“Actual Availability” means the total time, in minutes, the Service is available for use by Customer.
“Authorized User” means an employee or contractor of Customer who is expressly authorized by Customer to access and use the Service and/or Documentation pursuant to Customer’s access rights granted hereunder and who have agreed to comply with the terms of this Contract.
“Billing Period” means the period for which Customer agrees to prepay Fees under the corresponding Order Form.
“Confidential Information” means all confidential, sensitive or proprietary information disclosed by a Party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential”. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, confidential intellectual property, trade secrets, business plans, business opportunities, finances, research, development, and the terms and conditions under corresponding Order Form. Confidential Information does not include information that the receiving Party can demonstrate by written or other documentary records (a) at the time of disclosure is in the public domain, or subsequently enters the public domain without a breach of this Contract by the receiving Party; (b) is known to the receiving Party at the time of disclosure; (c) is rightfully obtained by the receiving Party on a non-confidential basis from a third party; (d) is independently developed by the receiving Party, as shown by the receiving Party’s written records kept in the ordinary course of business; or (e) is in the form of Deliverables.
“Customer Content” means any data, information and material input uploaded to the Service or transmitted through the Service by Customer or any Authorized User and/or any other material provided or made available by or on behalf of Customer to Company for the purposes of incorporation into the Service. This may include lists, descriptions of the products and garments distributed by Customer, size charts, etc. For the avoidance of doubt, Customer Content specifically excludes Photographic Data and Deliverables.
“Deliverables” mean the outputs of the Service, including any text, pictures, graphics, hyperlinks, interactive elements, information, data and other content generated via Service with the use of Photographic Data and/or Customer Content.
“Documentation” means any user manuals, handbooks, and/or installation guides relating to the Service provided by 3DLOOK.
“End-User” means an individual who utilizes the Service, and who may be an internal user of the Customer or a third party to which the Customer makes the Service available, subject to the terms and conditions set forth herein. As used herein, the term “End-User(s)” does not include any of the Parties to the Contract with respect to any item or Service obtained under the Contract.
“Initial Subscription Term” means the initial subscription term for a Service as specified in an Order Form.
“IP Rights” means any and all intellectual property rights, whether registered or not, worldwide including, without limitation, all the following: (i) copyrights, including moral rights, registrations and applications for registration thereof; (ii) computer software programs, data, databases and documentation; (iii) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; and (iv) trademarks, trademark applications, company names, domain names, trade secrets, service marks.
“Open Source Component” means any software component that is subject to any open source license agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Data” means data or information that directly, or when used in conjunction with other provided data, enables the identification of a specific individual, including, but not limited to, End-User.
“Photographic Data” means data corresponding to digital images of End-Users.
“Prohibited Content” means any content or material that: (i) violates any applicable law or regulation, including, but not limited to, data protection, consumer law and youth protection provisions, or infringes any third-party rights, including IP Rights, or other rights of any other person; (ii) is defamatory or in breach of any contractual duty or any obligation of confidence; (iii) is obscene, sexually explicit, or related to sex trafficking; (iv) is threatening, abusive, blasphemous, harassing, inciteful of violence or hatred, endorses or encourages revenge, racism, sexism, victimization, or discrimination of any kind, liable to cause anxiety, alarm or embarrassment; (v) contains viruses, spyware, adware, pirated software, digital rights protection circumvention or hacking tools, spamming tools or any other harmful code or activity that could, in an impermissible manner, access or use, impair or injure any data, devices, computer systems, or software; (vi) is false, deceptive or misleading; or (vii) results in consumer fraud, product liability, or breach of contract to which Company is a party, or causes injury to any third-party Person.
“Scheduled Maintenance” means the planned, scheduled and/or preventative maintenance performed by Company to keep the Service operating optimally and to improve its availability, security and performance. The Service is not available to Customer under the Scheduled Maintenance. Scheduled Maintenance shall not exceed four (4) cumulative hours in any calendar month.
“Service Credit” is the percentage of the monthly Fee credited to Customer, following the claim approval by Company, if Company fails to meet the Availability Guarantee specified herein.
“Service Effective Date” means the date an Initial Subscription Term begins as specified in an Order Form.
“Subscription Term” means the Initial Subscription Term of Customer’s subscription to the Service, as specified in the applicable Order Form(s), and each subsequent renewal term (if any).
“Transactional Data” means information about Customer’s clients’ and customers’ orders, products viewed and added to a shopping cart, returns made via Customer’s website, platform or service.
“Unscheduled Downtime” means the time (in minutes) where Customer is unable to access the Service. Unscheduled Downtime specifically excludes Scheduled Maintenance and Excluded Time.
“Update(s)” means any updates, bug fixes, patches, or other error corrections to the Service that Company generally makes available free of charge for all users of the Service.
4. USE OF SERVICES
4.1. Right to use the Service. During the Subscription Term, 3DLOOK will provide the Customer with access to use the Service as described in these Terms and the applicable Order Form(s). Subject to compliance with terms and conditions of these Terms and the applicable Order Form then in force, and full payment of the applicable Fees (as defined below), 3DLOOK grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services within the Subscription Term for Customer’s business purposes, and in accordance with the usage terms set forth herein and in the applicable Order Form. No rights to sublicense or market the Service or Documentation are granted. All rights in the Service not expressly granted hereunder are reserved to 3DLOOK (or its licensors). We might provide some elements of the Service through third-party service providers.
4.2. Use Restrictions. Customer shall not use the Service or Documentation for any purposes beyond the scope of rights granted hereunder. Without limiting the foregoing and except as otherwise expressly set forth herein, Customer shall not at any time, directly or indirectly:
(i) copy, modify, or create derivative works of the Service or the Documentation, in whole or in part, except pursuant to the integration of the Service on Customer’s and/or third-party systems agreed by the Parties;
(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or the Documentation or any part thereof;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part;
(iv) bypass or breach any security device or protection utilized by the Service;
(v) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or that contain, transmit, or activate any harmful code;
(vi) obscure, amend or remove any trademark, logo, proprietary notices, copyright notice, trademark or other proprietary marking on, or visible during the operation or use of, the Service or underlying software, without Company’s prior written authorization;
(vii) use the Service in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any Person, or that violates any applicable law;
(viii) use the Service for purposes of developing or providing a competing software product or service or any other purpose that is to the Company’s detriment or commercial disadvantage;
(ix) provide false identity information to gain access to or use the Service;
(x) use the Service to upload, store, post, transmit, distribute, link to or otherwise make available any Prohibited Content;
(xi) use the Service to “stalk” or otherwise harass any Person or collect or store unauthorized personal data in relation to any individual; or
(xii) use the Service in any manner or for any purpose other than that expressly permitted by these Terms or the Documentation.
4.3. YOU ACKNOWLEDGE THAT THE SERVICE HAS NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY, YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE, AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
4.4. Authorized Users. With respect to the Authorized Users (where such option is applicable and their access is authorized by Company), Customer undertakes that: (i) it will not allow any account to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Service; (ii) each Authorized User shall keep a secure password for their use of the Service; and (iii) Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, if such access or use violates the Contract. Without limiting the generality of the foregoing, the Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Contract if taken by Customer will be deemed a breach of the Contract by Customer. Customer shall make reasonable efforts to make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Service, and shall cause Authorized Users to comply with such provisions. Customer will be solely responsible for obtaining the authorizations, licenses, and consents, if and as required by any applicable law, to make the Service available to the Authorized Users.
4.5. Reservation of Rights. Other than the rights expressly specified in these Terms and the applicable Order Form, no other right or interest whatsoever is granted to Customer in connection with the Service. Except for the limited rights and licenses expressly granted hereunder, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any IP Rights or other right, title, or interest in or to the Service, the solutions to which it provides access and/or the underlying technology and software.
4.6. Modifications. Company reserves the right to modify the Service from time to time, including by adding or deleting features and functions, in an effort to improve the experience.
5. FEES. PAYMENT TERMS
5.1. Fees. In consideration for Company granting Customer access to and use of the Service, commencing on the Service Effective Date, Customer shall regularly pay Company within the Subscription Term, the subscription fees and, where applicable, fees charged for additional services of the Company (“Fees”) set forth in the applicable Order Form, without any offset or deduction. Customer shall make all payments hereunder in US dollars. Customer is responsible for providing complete and accurate billing and contact information to Company and such other information requested in the Order Form. All fees are due and payable in advance throughout the Subscription Term. If Customer is paying by invoice, Company will invoice Customer no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the corresponding Order Form. Customer acknowledges and agrees that Fees are non-refundable, except as otherwise expressly stated in this Contract and/or in Company’s Return, Cancelation and Refund Policy incorporated herein by reference.
5.2. Fee Adjustments. Fees will remain fixed, as defined in the applicable then-current Order Form, unless: (i) Customer exceeds any limits (if any) of Service use specified in the applicable Order Form; (ii) Customer requests for upgrades or additional features; or (iv) otherwise agreed to in Customer’s Order Form, which may be amended by mutual consent of both Parties. Upon renewal, Company may increase the Fees up to its then-current list price. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased Fees will apply at the start of the next renewal of the Subscription Term. If the Customer does not agree to such increase, either Party may choose to terminate the subscription to the Service at the end of then-current Subscription Term by providing the notice in accordance with Section 15.3 below.
5.3. Late Payments. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Company may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for more than ten (10) days of the due date, Company may suspend access to Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customers, Authorized Users or any other Person by reason of such prohibition of access to Service.
5.4. Taxes. All Fees and other amounts payable by Customer hereunder are exclusive of taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign-imposed by any federal, state, or local tax authority with respect thereto including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for all Taxes of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any Taxes imposed on Company’s income or revenues. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5, Company will invoice Customer, and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. INTELLECTUAL PROPERTY AND OWNERSHIP
6.1. Company’s Ownership. Company owns and shall retain all right, title, and interest, including all IP Rights, in and to the Service and the solutions provided thereby, and all the underlying software (subject only to the rights of third parties in Open Source Components as pointed in Section 7 below), technology and “look and feel” of the Service, all as may be updated, improved, modified or enhanced from time to time; and further – in and to the brand names, logos and trademarks related to the foregoing. Customer does not have under or in connection with this Contract any ownership interest in the Service or any related IP Rights. Except for the limited rights expressly granted hereunder, nothing in the Contract grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any IP Rights or other right, title, or interest in or to any of the Service or Documentation.
6.2. Customer’s Ownership. As between Customer and Company, Customer (and/or its respective licensors) owns and shall retain all right, title, and interest in and to the Customer Content.
6.3. Licenses. The functionality of Service may allow Customer and End-Users to interact with the Service, to create, upload, post, send, receive, and store content. When Customer and/or End-User does that, Company is granted a license to use that content. This includes Photographic Data, Deliverables, Transactional Data and Customer Content (collectively, the “Content”). For all Content submitted to the Service, Company is granted a worldwide, royalty-free, sublicensable, and transferable license to host, store, cache, use, display, perform, reproduce, modify, adapt, edit, publish, analyze, anonymize, transmit, and distribute that Content. The scope of Company’s right to use Content also depends on the Customer’s and End-User’s settings selected in the Service. This license is granted for the purpose of operating, developing, providing, promoting, and improving the Service and researching and developing new ones. This license includes a right for Company to make Content available to, and pass these rights along to, service providers with whom Company has contractual relationships related to the provision of the Service, solely for the purpose of providing such Services. Customer acknowledges that in order to provide and/or further improve the Services, Company may, in some cases, transform Content to anonymized, aggregated information (“Anonymized Data”). All Anonymized Data shall not be considered as Content to the extent such data cannot reasonably be de-anonymized, and Company may freely use such Anonymized Data without any limitations.
6.4. Customer Content. When Customer provides Company with Transactional Data, Photographic Data or Customer Content, including data, information and material input or uploaded to the Service or transmitted through the Service by the Customer or any Authorized User, Customer (whether you are an individual user, organization user or the company administrator operating on behalf of the organization or an Authorized User) represents and warrants that such Customer or Authorized User has full authority, consents and permissions (where applicable) to provide Company with such data. Further, Customer represents and warrants that Customer is the rightful owner of the Customer Content uploaded, or, that Customer has (and will continue to have) all the necessary licenses, rights, consents, and permissions from the rightful owners of such Customer Content, which are required to use and to enable Company to use the Customer Content uploaded and that such Customer Content does not infringe any third party’s IP Rights or other rights.
6.5. Feedback. To the extent Customer provides Company with any feedback, ideas, suggestions, recommendations or enhancements (collectively, “Feedback”) relating to the Service, such Feedback will not be considered Customer’s Confidential Information or proprietary information. Company may, at its discretion and for any purpose, freely use, modify, disclose, reproduce and incorporate into the Service, other Customer’s products and services any Feedback provided by Customer or Authorized Users (other than Customer Content), if any, without any additional obligation of Company to Customer or the applicable Authorized Users.
7. THIRD-PARTY COMPONENTS
7.1. Third-Party Services. The Service may be linked to certain third-party websites, platforms, features, materials and other third-party services (collectively, “Third-Party Services”). Such Third-Party Services are independent of the Service. Customer hereby acknowledges and agrees that Company has no control over such Third-Party Services, and further acknowledges and agrees that Company is not responsible for the availability of Third-Party Services, and does not have responsibility or liability for any goods, services, content, products, or any materials available on and/or through such Third-Party Services. Customer further acknowledges and agrees that Company shall not be responsible or liable, directly or indirectly, for any damage or loss whatsoever caused, or alleged to be caused, by or in connection with use of or reliance on any goods, services, content, products or other materials available on or through any Third-Party Services. Further, by using the Service, Customer acknowledges and agrees that Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services.
7.2. Open Source. The Service may include Open Source Components licensed under open source licenses. Any use of the Open Source Components by Customer is governed by, and subject to, the terms and conditions of the applicable open source licenses. If there is a conflict between the licensing terms of such Open Source Components and these Terms, the licensing terms of the Open Source Components shall prevail only in connection with the related Open Source Components. These Terms do not apply to any Open Source Components accompanying or contained in the Service, and Company disclaims all liability related thereto. Under no circumstances shall the Service or any portion thereof (except for the Open Source Components contained therein) be deemed to be “open source” or “publicly available” software.
8.1. All Confidential Information delivered, made available or otherwise acquired pursuant to the Contract shall: (i) not be copied, distributed, disseminated or made available in any way or form by Receiving Party without the prior written consent of the Disclosing Party; (ii) be maintained in strict confidence using the same degree of care that the Receiving Party takes to protect its own confidential information, but in no event, less than reasonable care; (iii) may only be disclosed to those employees, consultants, advisors, contractors and/or service providers of Receiving Party who have a “need to know” in connection with purposes consistent with the Contract, and who are bound by a written obligation of confidentiality no less restrictive as those set forth herein; and (iv) shall not be used by Receiving Party for any purpose, except for the purposes of the Contract, without the prior written consent of the Disclosing Party.
8.2. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that: (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
8.3. The provisions of this Section 8 shall survive the expiration or termination of the Contract for any reason and Receiving Party’s obligations of non-disclosure with regard to Confidential Information will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Contract for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9. REPRESENTATIONS & WARRANTIES. DISCLAIMERS
9.1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations under this Contract; (iii) the execution of this Contract by its representative whose signature is set forth in the Order Form has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, the Contract will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2. Company’s Limited Warranty. Company hereby represents and warrants that: (i) the Service will be operating in a manner consistent with generally accepted industry standards, and (ii) Company will not knowingly introduce any viruses or other forms of malicious code into the Service. In the event of non-conformance with this warranty, Company will use commercially reasonable efforts to correct such non-conformance; provided, however, that such representation and warranty in this Section 9 does not apply to problems arising out of or relating to: (a) Service or the underlying software that is modified or damaged by Customer or its Authorized Users; (b) any combination of the Service with any hardware, software, service, network, equipment, or data not approved by Company; (c) Customer’s or Authorized Users’ negligence, abuse, misapplication, or misuse of the Service; or (d) Customer’s breach of its contractual obligations hereunder.
9.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE, ANY ACCOMPANYING DOCUMENTATION AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY SPECIFICALLY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, DELIVERABLES AND/OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, AUTHORIZED USERS’, END-USERS’ OR ANY OTHER PERSON’S REQUIREMENTS OR EXPECTATIONS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
9.5. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.1. Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Company resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) related to or based on Customer’s or Authorized Users’: (i) negligence or willful misconduct; (ii) use of the Service, Deliverables or Documentation in a manner not authorized or contemplated by the Contract; (iii) modifications to the Service not made by Company; (iv) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Contract; or (v) noncompliance with or breach of the Contract, provided that Customer may not settle any Third-Party Claim against Company unless such settlement completely and forever releases Company from all liability with respect to such Third-Party Claim or unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. Company will notify Customer in writing within thirty (30) days of becoming aware of any such Third-Party Claim.
10.2 Company shall indemnify, defend, and hold harmless Customer from and against any Losses incurred by Customer resulting from any Third-Party Claim: (i) that the Service, Deliverables or Documentation infringes or misappropriates such third party’s US intellectual property rights or US patents, copyrights, or trade secrets; (ii) based on Company’s gross negligence or willful misconduct; or (iii) alleging facts that, if true, would constitute a material breach by Company of any representation, warranty, covenant, or obligation under the Contract, provided that Customer promptly notifies Company in writing of that Third-Party Claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer, where applicable, agrees to permit Company, at Company’s sole discretion, to (a) modify or replace the Service, Documentation, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue the use. If Company determines that none of these alternatives is reasonably available, Company may terminate the Contract, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10.2 will not apply to the extent that the alleged infringement arises from: (A) any Open Source Components; (B) any Customer Content; (C) Third-Party Services; (D) use of the Service in combination with any data, software, hardware, equipment, or technology not provided, approved or authorized by Company in writing, provided that the infringement only arose from such combination; (E) modifications to the Service not made by Company; (F) per Customer’s instructions, for the provision of any support or implementation services (if any); (G) negligence, abuse, misapplication, or misuse of the Service, Deliverables or Documentation by or on behalf of Customer, Authorized Users, or a third party; (H) use of the Service, Deliverables or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized hereunder or in any manner contrary to Company’s instructions; or (I) events or circumstances outside of Company’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions).
THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE, DELIVERABLES OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATION OF LIABILITY
11. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS CONTRACT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (IV) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE OR OTHERWISE FORESEEABLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS UNDER THESE TERMS THAT IS CAUSED BY EVENTS OUTSIDE COMPANY’S REASONABLE CONTROL.
11.2 TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR BREACH OF COMPANY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO COMPANY UNDER THIS CONTRACT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.
12.1 Customer hereby grants Company the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Company’s website and in other public or private communications with its existing or potential customers, subject to Customer’s standard trademark usage guidelines as may be provided to Company from time-to-time. If Customer does not want to be listed, Customer may send Company an email to firstname.lastname@example.org stating that Customer does not wish to be used as a reference.
12.2 Customer shall not issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Service or this Contract without consulting Company and without Company’s prior written consent, which shall not be unreasonably withheld or delayed.
13. PRIVACY AND DATA PRACTICES
13.2. Both Parties shall comply with all applicable laws and regulations pertaining to data security and privacy and shall collect data only in a lawful manner. Customer hereby represents and warrants that any data provided by or on behalf of Customer shall have been obtained and shall be provided or made available to Company in compliance with all applicable laws and regulations, including by obtaining all necessary consents (where applicable) from data subjects (including, but not limited to, Authorized Users and End-Users) whose data is provided or made available giving consent, as may be necessary to permit Company to provide the Service and perform its obligations as contemplated by these Terms. Customer shall retain ownership rights to all such data processed under the terms of this Contract, subject to a limited license granted to Company hereunder. Customer shall be solely responsible for obtaining all consents and authorizations as may be required by any applicable law, for the collection, storage and processing of such data by Company according to Customer’s instructions.
13.3. The Parties agree that Customer shall be deemed to be the Data Controller, and Company shall be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. In case Customer processes through the Service any information of any EU citizens, or as otherwise required under the applicable law, the Parties will execute a separate data processing agreement (incorporated herein by reference) governing such processing activities.
13.5. Company may also collect Anonymized Data and use, store, analyze, and disclose such Anonymized Data to diagnose problems, improve the Service, other Company’s products or offerings, provide services, and to conduct product marketing, research and development activities. Customer understands and agrees that such Anonymized Data shall be owned by Company and Company shall not be restricted from using or disclosing such Anonymized Data in any way.
14. SERVICE UPTIME COMMITMENT. SUPPORT SERVICES
14.1 Uptime Commitment. Company will use commercially reasonable efforts to provide 99.95% Actual Availability of the Service in a given calendar month during the Subscription Term (“Availability Guarantee”), as measured and monitored by Company. Actual Availability will be calculated on a monthly basis using the following formula:
[(X – Y) / X] * 100 = %
X = Scheduled Availability; and
Y = Unscheduled Downtime
Company will provide Customer with the information regarding the Actual Availability in real-time via a health check service available at https://3dlook.statuspage.io and https://3dlook.statuspage.io/uptime (for the historical uptime information). All availability calculations will be based on Company’s system records.
14.2. Service Credits. Subject to Sections 14.1 and 14.3, if and to the extent Company fails to meet the Availability Guarantee set forth in Section 14.1 Customer is entitled to a Service Credit as set forth below. Service Credits are Customer’s sole and exclusive remedy for any performance or availability issues for the Service under the Contract. Customer may not unilaterally offset the Fees for any performance or availability issues; they will be credited to Customer following Company’s verification of the Actual Availability for the month claimed. Service Credits are pro-rated based on the Actual Availability and duration of the Unscheduled Downtime:
|Monthly Actual Availability Percentage||Service Credit (% of the monthly Fee)|
Customer must submit the claim and all required information by the end of the calendar month following the month in which such alleged Unscheduled Downtime occurred. Where the claim is confirmed, Company shall provide Customer with the Service Credit against the monthly Fee amounts owed to Company for the subsequent month following the month in which the Customer’s claim was filed. With respect to any failure of Company to meet the Availability Guarantee, this Section 14.2 states Company’s sole and entire liability to Customer and Customer’s sole remedy. Service Credits are not refunds and cannot be exchanged into a cash amount.
14.3. Excluded Time. Notwithstanding the foregoing, no Unscheduled Downtime will be deemed to have occurred if the downtime: (i) is caused by factors outside of Company’s reasonable control and/or by any force-majeure events, including, without limitation, telecommunications provider-related problems or issues, Internet access or related problems occurring beyond the point in the network where Company maintains access and control over the Services; acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, national shortage of adequate power, or passage of law or any action taken by a governmental or public authority, including imposing an embargo; (ii) results from any actions or inactions of Customer, Authorized Users or any third party (except for Company’s employees, agents, consultants and subcontractors), i.e., any misuse, improper use, alteration, or damage of the Service; (iii) results from the Customer’s equipment, network, service, software or other technology, or third party equipment, network, software or other technology (except for the equipment within Company’s direct control); (iv) occurs due to Scheduled Maintenance for which Company provides at least twenty-four (24) hours prior notice; or (v) occurs during Company’s emergency maintenance that is necessary for purposes of maintaining the integrity or operation of the Services, regardless of the notice provided by Company (collectively, the “Excluded Time”).
14.4. Customer Support. Subject to Customer’s timely payment of the applicable Fees set forth in the Contract, Company will provide Customer with the support and maintenance services as described herein. In the event that Customer requests advice and/or troubleshooting on the technical use of the Service, Company will provide Customer with reasonable assistance. Prior to requesting any support services from Company, Customer shall comply with all published operating and troubleshooting procedures for the Service (if applicable). If such efforts are unsuccessful in eliminating the issue, Customer shall then promptly notify Company of the issue in accordance with Section 14.5 below. Support services under this Section 14.4 are limited to ten (10) hours per month, and the Parties agree that all additional requests during such month will be charged at the rate defined in the respective Order Form.
14.5. Severity Levels. Response and Resolution Time. All the support requests are assigned a severity level based on the impact on the use of the Service, according to the chart below. Customer may determine the initial severity level when placing a request, however, severity levels may be changed and allocated at Company’s sole discretion after initial contact and assessment of the issue from Company providing the Customer is notified. All disputes regarding severity classification will be resolved by Company in its sole discretion. Company shall use commercially reasonable efforts to comply with the support standards set forth in the chart below for the corresponding severity level. Response time shall be measured from the moment an issue is reported to Company by Customer and Company’s acknowledgment of the issue. The time for resolution begins when Company receives a documented report on the issue, defect or error and, if requested by Company, a listing of output or other information that may be reasonably requested by Company.
|Severity Level||Response Time||Resolution Time||Calendar|
|Highest: a critical failure of the Service, workarounds have been ineffective in addressing the issue, the issue has a critical impact on Customer’s business operation and/or numerous End-users||2 business hours||1 business day||24/7|
|High: an error that has a high impact on key portions of the Service, that results in a lack of the Service functionality, and that materially degrades significant aspects of Customer’s business operations||8 business hours||2 business days||24/7|
|Medium: an error that constitutes a change in Service normal behavior where urgency and impact are moderate, with some business impact on the Service in a production environment and resulting in some functionality loss on Customer’s use of the Service. The Service is usable but does not provide a function in the most convenient or expeditious manner||12 business hours||2 business days||Normal business hours, Mon-Fri*|
|Low: an error where urgency and impact are low, with little or no impact on the quality, performance, or functionality of Customer’s use of the Service||2 business days||7 business days||Normal business hours, Mon-Fri*|
* with the exception of public holidays in the US
Subject to these Terms, Company will provide support and maintenance to Customer through the support portal in the Service and/or by email. You can contact our support team via email at email@example.com.
14.6. Limitations. Company shall not be responsible for the provision of any maintenance and/or support services to the extent that issues arise due to Customer’s: (i) misuse, improper use, misconfiguration, damaging the Service; (ii) use of the Service with any hardware or software not recommended by Company; or (iii) other use of the Service in a manner that contradicts Company’s instructions and/or the Contract.
15. TERM AND TERMINATION
15.1. Term. The term of the Contract begins on the Service Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, continues through the expiration or earlier termination of the last Order Form to be in effect. The Initial Subscription Term will be specified in Customer’s very first Order Form, and, unless otherwise specified in the Order Form, the subscription will automatically renew at the end of the Initial Subscription Term (and thereafter) for additional periods of twelve (12) months, unless terminated by either Party by written notice no less than thirty (30) days prior to the end of the then-current Subscription Term. The auto-prolongation procedure should be applied on a yearly basis.
15.2. Termination for Cause. Either Party may terminate the Contract effective on written notice to the other Party if the other Party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching Party provides notice of the breach. Customer is responsible for all acts of its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. Either Party may terminate the Contract immediately (on written notice), if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. In addition, Company may terminate any Order Form upon written notice to Customer if Customer fails to pay any amount due under the Order Form, and such failure continues more than 20 days after Company’s delivery of written notice. Notwithstanding the foregoing, Company may terminate the Contract immediately on written notice to Customer if Company reasonably believes that the Service is being used by Customer or its Authorized Users in violation of applicable law.
15.3. Termination Without Cause. Unless otherwise expressly stated in the applicable Order Form, Customer may elect to terminate the subscription to a Service as of the end of then-current Subscription Term by providing notice, in accordance with Section 15.1, no less than thirty (30) days prior to the end of such Subscription Term. Customer may choose to cancel its subscription early at its convenience (without cause) provided that, Company will not provide any refunds of prepaid and/or unused Fees, and Customer will promptly pay all unpaid Fees due through the end of then-current Subscription Term. Company may also terminate the Contract without cause by providing Customer with at least thirty (30) days prior written notice. The Contract may not otherwise be terminated prior to the end of the Subscription Term.
15.4. Effect of Termination or Expiration. Termination of the Contract will terminate all subscriptions and all Order Forms. Upon expiration or earlier termination of the Contract:
(i) All rights granted hereunder shall immediately terminate and any and all use and/or exploitation by Customer and/or on its behalf of the Services, and any part thereof, shall immediately cease and expire;
(ii) Company will have no obligation to provide access to the Service to Customer or its Authorized Users after the effective date of the termination;
(iii) All pending amounts owed to Company by the Customer shall become immediately due and payable;
(iv) The Receiving Party shall return or destroy, at the Disclosing Party’s option, all copies of Confidential Information received from the Disclosing Party, pursuant to Section 8;
(v) Any accrued rights or liabilities which either Party may have by the effective termination date shall remain unaffected; and
(vi) Provisions contained in the Contract that are expressed or by their sense and context are intended to survive the termination of the Contract shall so survive the termination, including, without limitation, Section 5 (with respect to payments accrued as of the termination date), Section 6, and Sections 8 through 16 (inclusive).
Customer acknowledges and agrees that under the general rule the Fees are non-refundable, except: (a) as otherwise expressly stated in Company’s Return, Cancelation and Refund Policy incorporated herein by reference; (b) where the Contract was terminated by Company without cause in accordance with the Section 15.3 above and the Customer has pre-paid the corresponding Fees for then-current Subscription Term – in this case Company will refund any prepaid but unused pro-rata share of Fees covering use of the Service after termination; or (c) where the Contract was terminated for cause by Customer in accordance with the Section 15.2 above and the Customer has pre-paid the corresponding Fees for then-current Subscription Term – in this case Company will refund any prepaid but unused pro-rata share of Fees covering use of the Service after termination. Fees are otherwise non-refundable. If Company terminates the Contract for cause, Customer will promptly pay all unpaid Fees due through the end of the then-current Subscription Term.
15.5. Suspension of Access. Company reserves the right to monitor the use of the Service for security and operational purposes. Company may suspend or otherwise deny Customer’s, Authorized User’s or any other person’s access to or use of all or any part of the Service for: (i) security reasons if Company believes, in its reasonable discretion, that any third party has gained unauthorized access to any portion of the Service using any credential issued by Company to Customer or its Authorized Users; (ii) any material breach of the Contract; (iii) use of the Service in breach of Section 4; (iv) Customer’s refusal to accept changes made to these Terms; (v) any illegal, or foreseen to be illegal, fraudulent, or deceptive use; (vi) (iii) repeated instances of posting or uploading Prohibited Content; (vii) creating a security vulnerability for the Service; or (viii) due to non-payment (in accordance with Section 5.3). Company shall provide Customer with written notice of such suspension.
16.1. Entire Agreement. These Terms, together with any corresponding Order Form(s) and other documents incorporated herein by reference constitute the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
16.2. Modifications. Company may modify any part or all of these Terms by posting a revised version on this page. The revised version will become effective and binding the next business day after it is posted. Company will provide Customer notice of this revision by email or in-Service notification. If Customer does not agree with a modification to the Terms, Customer must notify Company in writing within ten (10) days after the notice of the revision was sent. If Customer gives this notice, then the Contract will terminate upon written notice to Customer. If Customer (or any Authorized User) accesses or uses the Service after the effective date or the revision, that use will constitute Customer’s acceptance of any revised Terms. No amendment to or modification of the Order Form is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Contract will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.3. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained herein will be construed as creating any agency, partnership, joint venture, or another form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16.4. Assignment; Change of Control. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that either Party may, without such consent, assign this Contract and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Contract, or in the event of its merger, consolidation, change in control or other similar transaction; provided, however, that Customer may not so assign to a competitor of Company without Company’s prior written consent. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Contract is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
16.5. Export Restrictions. The Service and any other technology Company makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit its Authorized Users to access or use the Service in a U.S. or EU embargoed country or in violation of any U.S. or EU export law or regulation.
16.6. Notices. Any notice required or permitted to be given by either Party under the Contract shall be in writing and may be delivered by courier, sent by registered letter, and shall be effective upon receipt or, if sent by email, upon proof of being sent. Any notice to either Party shall be sent to the contact information listed in the applicable Order Form. A copy of notices to Company shall also be sent to firstname.lastname@example.org.
16.7. Force Majeure. Except for payment obligations, neither Company nor Customer shall either Party be liable to the other Party, or be deemed to have breached this Contract, for any failure or delay in performing its obligations under the Contract, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
16.8. Severability. If any provision of the Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify the Contract so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.9. Governing Law; Submission to Jurisdiction. This Contract is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Contract or the rights granted hereunder may be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Mateo and County of San Mateo, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Contract.
16.10. Actions Permitted. Except for actions for nonpayment or breach of a Party’s proprietary rights, no action, regardless of form, arising out of or relating to this Contract may be brought by either Party more than one (1) year after the cause of action has occurred.
16.11. No Third-Party Beneficiaries. This Contract is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Contract.