Mobile Tailor 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 (“Customer” or “you”). THESE TERMS TOGETHER WITH THE APPLICABLE ORDER FORM(S) (IF ANY) GOVERN CUSTOMER’S ACCESS AND USE OF MOBILE TAILOR SOLUTION FOR DIGITAL BODY MEASURING AND 3D MODELING (“Mobile Tailor” or the “Service”). BY ACCEPTING THESE TERMS WHILE EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OR BY REGISTERING IN THE SERVICE, CUSTOMER AGREES TO THESE TERMS.
These Terms and, if applicable, any Order Form(s) (as defined below) together form a binding “Contract” between Customer and 3DLOOK. If any terms in Section 12.3 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.
Customer shall subscribe to the Service by executing an Order, which shall define: (i) the subscription term; (ii) applicable features of the Service to which Customer subscribes; (iii) subscription fees; and (iv) any other subscription terms that may be agreed upon by the Parties.
Customer may also subscribe to additional Service features (if this option is made available by Company) or upgrade the current package by executing an additional Order. These Terms will apply to all additional and/or subsequent Order(s).
Each Order executed by the Parties is governed by these Terms and is subject thereto. However, if there is a conflict between these Terms and the Order, then the corresponding Order shall govern.
Upon expiration of the then-current subscription term, the applicable Order may be renewed and/or replaced by a new Order 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, contractor or affiliate 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 has agreed to comply with the terms of the Contract.
“Billing Period” means the period indicated in the Order and for which Customer shall pay Fees (e.g., month-to-month or annual).
“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 relating to: 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 the corresponding Order. 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, logo, company name, etc. For the avoidance of doubt, Customer Content specifically excludes Photographic Data and Deliverables.
“Deliverables” mean the outputs of the Service, including any text, numbers, pictures, graphics, hyperlinks, interactive elements, information, data, and other content generated via the 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 may be the Customer’s internal user (e.g., an employee) 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.
“Error” means a defect or error in the Service that causes the Service to fail to perform in all material respects in accordance with the functionality set forth in the Company’s Documentation.
“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.
“Order” or “Order Form” means the Company-approved form or online (in-app) subscription process by which Customer agrees to subscribe to and use the Service.
“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.
“Pilot Term” means the period that starts from the Service Effective Date and ends as indicated in the corresponding Order, when the Customer’s subscription to the Service will be piloted initially so that the Customer may assess whether the Service is meeting its business needs. Following the completion of the Pilot Term, the Parties will assess the overall performance.
“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, 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 when the Subscription Term begins upon the Customer’s subscription to a Service Plan (on a paid basis) or, where applicable, completion of the integration/onboarding of Customer on Company’s side.
“Service Plan” means the packaged subscription plan and associated features, as detailed at the pricing page of the Service and/or the applicable Order Form, for the Service to which Customer subscribes.
“Subscription Term” means the term of Customer’s subscription to the Service on a paid basis, as specified in the applicable Order(s), including the Pilot Term (if any) and each subsequent renewal term (if any).
“Transactional Data” means information about the Customer’s clients that are using the Service and includes information about their orders, contact details, status of the measurement request and additional details on analytics, where applicable.
“Unscheduled Downtime” means the time (in minutes) where Customer is unable to access the Service. Unscheduled Downtime specifically excludes Scheduled Maintenance and Excluded Time (as defined below).
“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.
USE OF SERVICES
- 1. Right to use the Service. During the Subscription Term, 3DLOOK will provide Customer with access to use the Service as described in these Terms and the applicable Order(s). Customer will be required to select a Service Plan, unless otherwise provided in an Order Form. Service Plans are offered in packages based, in part, on the number of available scans and other features and capabilities. Subscription fees for Service Plans are based on annual or monthly periods that begin on the Service Effective Date and each annual or monthly anniversary of the Service Effective Date.
Subject to compliance with these Terms and the relevant Order(s) 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. No rights to sublicense or market the Service or Documentation are granted, except as expressly agreed by the Parties in writing. All rights in the Service not expressly granted hereunder are reserved to 3DLOOK (or its licensors). Customer acknowledges and agrees that 3DLOOK might provide some elements of the Service through third-party service providers.
- 2. Use Restrictions. Customer shall not use the Service or Documentation for any purposes beyond the scope of the rights granted hereunder. Without limiting the foregoing and except as otherwise expressly set forth herein, Customer shall not at any time, directly or indirectly:
- 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;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or the Documentation or any part thereof, except as otherwise expressly agreed by the Parties in writing;
- 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;
- bypass or breach any security device or protection utilized by the Service;
- 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;
- obscure, amend or remove any trademark, logo, proprietary notices, copyright notice, trademark, or another proprietary marking on, or visible during the operation or use of, the Service or underlying software, without Company’s prior written authorization;
- 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;
- 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;
- provide false identity information to gain access to or use the Service;
- use the Service to upload, store, post, transmit, distribute, link to, or otherwise make available any Prohibited Content;
- use any unauthorized device, software, or routine that interferes with the proper operation of the Service;
- use the Service to “stalk” or otherwise harass any Person or collect / store unauthorized personal data in relation to any individual; or
- use the Service in any manner or for any purpose other than that expressly permitted by these Terms or the Documentation.
Without limiting the foregoing, Customer represents and warrants that at all times during the Subscription Term Customer will not, at any time, directly or indirectly use the Service and/or Documentation in measuring, fitting, or sizing body armor, bomb suits, and other similar personal protection garments, ensembles or suits that are designed to provide blast, ballistic, stab, knife and/or fragmentation protection from projectiles (collectively, the “PPE”) in connection with the market, sale or distribution of PPE, either directly or, within Customer’s reasonable efforts, indirectly, to its customers, including, but not limited to, any government agencies, including law enforcement, public safety, fire/rescue, medical, military and defense. Customer shall defend, indemnify and hold Company harmless for any claims or damages resulting from the violation of this paragraph, including attorney’s fees and costs incurred by Company.
- 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. Authorized Users. With respect to the Authorized Users (where such option is applicable, and the access is authorized by Company), Customer undertakes that: (i) except as expressly agreed by the Parties in writing, it will not allow any account to be used by more than one Authorized User unless it has been reassigned in its entirety to another 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. 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.
- 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.
- 6. Security. If you choose (or are provided with) a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. You also acknowledge that your account (if any) is personal to you and agree not to provide any other Person with access to the Service or portions of it using your username, password, or additional security information. You agree to notify us immediately of any unauthorized access to or use of your username, password, or any other security breach. Furthermore, you also agree to ensure that you log out of your account at the end of each session. You should use particular caution when accessing your account from a public or shared device so that others are not able to view or record your password or other confidential information.
- 7. Modifications. Company reserves the right to modify the Service from time to time, including by adding or deleting some features and functions, in an effort to improve the experience.
PAYMENTS AND BILLING
- 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 (the “Fees”) according to the conditions of the corresponding Service Plan or as set forth in the relevant Order, without any offset or deduction. Customer shall make all payments hereunder in US dollars. 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. Please note that there will be no refunds or credits for partial months of the use of the Service.
- 2. Trial Period. From time to time, Company may offer trials of the Service for a specified period of time without payment or at a reduced rate and in the scope defined by Company (each, a “Trial”). Please note, that certain features, functionality, or modules of the Service may not be available or restricted during the Trial. Customer may only use the Trial for: (i) internal testing, evaluation, or trial purposes, and (ii) for a specified period. Customer may not use the Service (including, but not limited to, during the Trial) if Customer directly or indirectly engages (or intends to engage) in any business that competes with Company or offers a similar software solution or services to the Service. Customer may not release to any third party the results of any evaluation of the Service during the Trial performed by or on behalf of Customer for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Company. Additional Trial terms and conditions may appear on the Trial registration web page in the Service. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Customer must use the Trial within the scope and limits defined by Company. Company reserves the right, in its absolute discretion, to determine the prospective Customer’s eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under law. Please note, that you may only use a Trial once.
If Customer registers or signs an Order Form for a Trial, Company will make the Service available under the Trial until the earlier of (a) the end of the Trial period, or (b) the date upon which aggregate use of the Trial exceeds any usage or quantity limitations imposed thereon, or (c) the start date of any paid subscription (i.e., the Service Effective Date) to a Service Plan purchased by you for the Service, or (d) termination by Company in its sole discretion. Additional Trial terms and conditions may appear on the Trial registration web page in the Service.
DURING A FREE TRIAL THE SERVICE IS PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, OR ANY LIABILITY OF ANY TYPE WITH RESPECT TO A TRIAL AND/OR THE SERVICE, UNLESS SUCH EXCLUSION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE, COMPANY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE DURING THE TRIAL IS $1,000. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER SHALL BE FULLY LIABLE FOR ANY DAMAGES ARISING OUT OF ITS USE OF A FREE TRIAL. ANY CUSTOMER DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S SERVICE ACCOUNT DURING THE TRIAL MAY BE PERMANENTLY LOST UPON TERMINATION / EXPIRATION OF THE TRIAL.
Upon or prior to the expiration of the Trial, Customer may select the Service Plan and purchase a paid subscription to the Service. If Customer does not subscribe to a Service Plan upon the expiration of the Trial, then Customer will cease access to the Service and Customer’s access to and right to use the Service will be automatically terminated, with or without notice. Customer acknowledges that Company reserves the right to delete Customer’s account created during the Trial (and any data contained therein) in its sole discretion, without notice or any further liability or obligation.
Company may modify or terminate the Trial at any time, for any reason, and any modification or termination will not be deemed a material, detrimental change.
- 3. Billing and Payment Methods. Customer is responsible for providing complete and accurate billing and contact information to Company and such other information necessary for the Company to charge the applicable Fees when due, and any other charges payable in connection with the Customer’s use of the Services. All fees are due and payable in advance on a monthly or annual basis (unless otherwise specified in the corresponding Order Form) throughout the Subscription Term. The payment method will be agreed upon by the Parties hereto. If Customer is paying by invoice, all amounts invoiced by Company are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the corresponding Order Form. Additionally, Company uses Stripe as its third-party payment processor (the “Payment Processor”). The processing of payments will be subject to the terms, conditions, and policies of the Payment Processor in addition to these Terms. By choosing to use the online payment method, Customer agrees to pay Company, through the Payment Processor, all the applicable Fees for the use of the Service under the corresponding Service Plan. If Company (through the Payment Processor) does not receive the applicable payment from Customer, Customer agrees to pay all the outstanding amounts due within five (5) business days upon written notice. Customer hereby acknowledges and agrees that Company shall not be liable for any payments and monetary transactions that occur through the Customer’s use of the online payment method with a Payment Processor; Company is not responsible for error by the Payment Processor. Customer understands that the Payment Processor handles all payments and monetary transactions and Company has no control over the Payment Processor’s services. Customer acknowledges that the Payment processor may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the Customer’s payment. Company reserves the right to change the Payment Processor at any time and at its sole discretion.
- 4. Billing Period. The applicable subscription Fees and any other charges Customer may incur in connection with its use of the Service, such as taxes and possible transaction fees, will be charged on the specific payment date indicated in the account in the Service, unless otherwise expressly agreed by the Parties in the corresponding Order Form. The length of the Customer’s Billing Period will depend on the type of the Service Plan (monthly or annual) chosen when Customer signed-up for the Service. In some cases, the payment date may change, for example if the Payment Method has not successfully settled on or before the Service Effective Date, or if the use of the Service on a paid subscription basis under the selected Service Plan began on a day not contained in a given month. Customer can see their next payment date in their account in the Service.
- 5. Fee Adjustments and Plan Modifications. Fees will remain fixed, as defined in the applicable then-current Order, unless: (i) Customer exceeds any limits (if any) of Service use specified in the applicable Order Form; (ii) Customer requests for any upgrades or additional features; or (iv) otherwise agreed to in Customer’s Order, which may be amended by mutual consent of both Parties. Upon renewal, Company may increase the Fees up to its then-current list price for the Service Plans. 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 an increase, Customer may choose to terminate the subscription to the Service at the end of the then-current Subscription Term by providing a prior written notice to Company.
If Customer elects to upgrade its then-current Service Plan during a Subscription Term, any incremental Fees associated with such upgrade will be prorated over the remaining then-current Billing Period and charged to Customer’s account (i.e., the upgrade of the Service Plan will take effect immediately, and the Fee associated with such upgrade for the remaining period will be charged; the Billing Period remains the same). Customer will be charged the adjusted rate reflecting such upgrade on subsequent Billing Periods.
Customer may downgrade their Service Plan for a subsequent Billing Period prior to the end of the then-current Billing Period (i.e., downgrade will take effect starting from the next Billing Period). Subsequently, Customer will be charged the adjusted rate on the next Billing Period. Please note that the downgrade of the Service Plan may cause a loss of content, features, or capacity of the Service as available to Customer, and Company is not responsible for such loss.
If Customer is using a legacy or custom Service Plan (which is not available anymore), Customer can switch to any of the current Service Plans at any time. Please note that you will not be able to switch back to the legacy plan once you’ve upgraded to any of the then-current Service Plans.
- 6. 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. In addition, if a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, Company may suspend Customer’s access to the Service until the due amount was successfully received by the Company.
- 7. 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.
INTELLECTUAL PROPERTY AND OWNERSHIP. PUBLICITY
- 1. Company’s Ownership. Company owns and shall retain all rights, 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.
- 2. Customer’s Ownership. As between Customer and Company, Customer (and/or its respective licensors) owns and shall retain all rights, title, and interest in and to the Customer Content.
- 3. Licenses. The functionality of the Service may allow Customer and/or 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, process, reproduce, modify, adapt, edit, publish, analyze, anonymize, transmit, and distribute that Content as described hereunder. The scope of the Company’s right to use Content may also depend 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, as well as 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 Service. 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 deanonymized, and Company may freely use such Anonymized Data without any limitations.
- 4. Customer Content. When Customer provides Company with Transactional Data (where applicable), Photographic Data, or Customer Content, including data, information, and material input 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.
- 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.
- 6. Publicity. 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 email@example.com stating that Customer does not wish to be used as a reference. 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.
- 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 the 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.
- 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.
- 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.
- 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.
- 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.
REPRESENTATIONS & WARRANTIES. DISCLAIMERS. RELIANCE ON INFORMATION POSTED
- 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 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 3. 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.
LIMITATION OF LIABILITY
- 1. 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: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) 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 (E) 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 COMPANY’S OBLIGATIONS UNDER THESE TERMS THAT IS CAUSED BY EVENTS OUTSIDE COMPANY’S REASONABLE CONTROL.
- 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.
PRIVACY AND DATA PRACTICES
- 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.
- 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. Where required under the applicable law, the Parties will execute a separate data processing agreement (incorporated herein by reference) governing such processing activities.
- 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.
- 6. Company will maintain industry-standard physical, electronic and procedural safeguards designed to protect any data in its possession from loss, misuse, corruption, and unauthorized access or disclosure. Company hereby confirms that the appropriate security controls and technical safeguards shall be implemented into the Service to prevent contamination with a virus, worms, Trojan horses or any other contaminating elements; provided, however, that Company shall not be liable for such incidences or errors that are caused exclusively by the intervention or use of third parties, including Customer itself, or which derive from maintenance and support activities that were not performed by the Company. In case if Company considers that a security incident occurred and such incident caused any destruction, accidental loss or illegal modification or publication of the Service-related data, etc., it should promptly notify Customer. Company will provide Customer with the updated information about the status of the security incident until the problem has been resolved. The reports should include, at least, a description of the security incident, the measures adopted and the remediation plans.
SERVICE UPTIME COMMITMENT. SUPPORT SERVICES
- 1. Uptime Commitment. Company will use commercially reasonable efforts to provide 99.5% 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.
- 2. Service Credits. Subject to Sections 13.1 and 13.3, if and to the extent Company fails to meet the Availability Guarantee set forth in Section 13.1 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
(% 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 13.2 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.
- 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”).
- 4. Technical Support and Technical Assistance. 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.
For the purposes of these Terms, “Technical Support Services” means Company’s support services to respond to and resolve Errors at no additional charge as set forth herein and may cover the following Service (core technology) Errors:
- Company’s technology server not responding – meaning access or connection to the server or API is impossible or limited;
- Integration issues – meaning integration script provided by Company (if applicable) has stopped working or the widget (where applicable) is not opening;
- Updates and maintenance – technology upgrades and/or security updates.
For the sake of clarity, Technical Support Services do not cover the following matters: (A) technical implementation services and Company’s guidelines on: (i) specific solutions used, (ii) workarounds, (iii) Open Source Components and Third-Party Services (if used), (iv) software (technology) and/or API response misuse (sending in invalid photos / blank images / non-humans); (B) bugs: (i) caused by any Open Source Component (including any third-party libraries) and/or Third-Party Services vendors (outside of the scope of integration),(ii) caused by Customer and/or a third-party development team (vendor), (iii) caused by a domain, server and/or third-party service(s) misconfiguration, (iv) not related to the Service (core technology) and/or server response. Technical Support Services described herein will be provided by Company in accordance with Section 13.5 below.
“Technical Assistance Services” herein means Company’s services provided in connection with Customer’s requests for the following:
- Any additional guidance or assistance on the technical use of the Service and/or Company’s API (where applicable);
- Provision of the access by adding new Authorized Users to the admin panel (where applicable), including password reset for the existing Authorized Users;
- Analytics and provision of the reporting data for the use of the Service (i.e., widget usage, amount of failed scans, etc.);
- Performing investigations and answering Customer’s questions on the Service performance (e.g., with respect to the measurements discrepancies, parameters of the Service components like admin panel and widget, etc.)
Technical Assistance Services under this Section 13.4 are subject to the following limits, unless otherwise expressly agreed in the applicable Order Form with the Customer:
- For Customers utilizing the digital measurements functionality of the Service only (without any additional functionality of the Service, e.g., widgets) – one (1) hour per month;
- For Customers utilizing the widget functionality of the Service – one (1) hour per month;
- For Customers utilizing the Service with API functionality – two (2) hours per month.
Parties may agree to extra hours for the Technical Assistance Services over the limit for an additional fee. In this case, terms for such additional Technical Assistance Services and the applicable fees will be agreed upon by the Parties in the corresponding Order Form.
Any requests for the additional development services are not covered by the Technical Support Services and/or Technical Assistance Services. These requests are considered to be “Feature Requests” and may cover the following matters:
- any additional development services that are not specified in the Contract or, where applicable, Master Professional Services Agreement (including the corresponding Statement of Work) executed by and between the Parties;
- any additional, new, or extending to the existing functionality of the Service;
- any new features in the widget (if applicable);
- expanding the core technology response by adding any additional measurements and/or new POMs.
Feature Requests are not subject to this Contract. If Customer provides a Feature Request, it will be covered by a separate agreement to be executed by and between the Parties.
- 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 at 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.
|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. An Error that renders the Service completely inoperative with no alternative available
|4 business hours
|1 business day
|Normal business hours, Mon-Fri*
|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
|Normal business hours, Mon-Fri*
|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
An Error is considered resolved when (i) the Error is fixed by Company; (ii) the source of the Error is determined to lie with a third party, Customer or Authorized User; or (iii) Customer does not respond to a Company’s request regarding the Error within three (3) consecutive business days after the Company’s request.
- 6. Communications and Error Reporting. All communications regarding the support and maintenance services indicated in this Section 13 should be directed to firstname.lastname@example.org.
- 7. Remote Services. In order to assist in the analysis and resolution of an Error, Customer agrees to provide Company with access to Customer’s computers, network, or systems over the internet such that Company may install and use remote access software to collect and transmit to Company diagnostic, technical, usage, and related information, including information about Customer’s computers, systems, or network, relating to or derived from Customer’s use of the Service. Customer agrees that Company may collect, maintain, process, and use this information in the course of performing its obligations under the Contract.
- 8. 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.
TERM AND TERMINATION
- 1. Term. The term of the Contract begins on the date when Customer first signs-up, starts using or accesses the Service (whichever is earlier) and, unless terminated earlier pursuant to any of the Contract’s express provisions, continues through the expiration or earlier termination of the last Order to be in effect. Unless otherwise specified in the applicable written Order Form or a written agreement executed by and between the Parties, the subscription will automatically renew for the same period at the end of the then-current Billing Period, unless terminated or canceled pursuant to the Company’s Return, Cancelation and Refund Policy incorporated herein by reference.
- 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 five (5) 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 upon written notice to Customer if Customer fails to pay any amount due, and such failure continues more than five (5) 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.
- 3. Termination Without Cause. Unless otherwise expressly stated in the applicable Order Form, Customer may elect to terminate the subscription to a Service effective as of the end of then-current Billing Period by providing notice, in accordance with Company’s Return, Cancelation and Refund Policy (at least three (3) business days before the end of the then-current Billing Period). Company will not provide any refunds of prepaid and/or unused Fees. Unless otherwise expressly stated in the applicable Order Form, Company may also terminate the Contract without cause by providing Customer with at least three (3) business days prior written notice before the end of the then-current Billing Period.
- 4. Effect of Termination or Expiration. Termination of the Contract will terminate all subscriptions and all Orders. Upon expiration or earlier termination of the Contract:
- All rights granted hereunder shall immediately terminate and any and all use and/or exploitation by Customer and/or on its behalf of the Service, and any part thereof, shall immediately cease and expire;
- Company will have no obligation to provide access to the Service to Customer or its Authorized Users following the effective date of the termination;
- All pending amounts owed to Company by the Customer shall become immediately due and payable;
- 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;
- Any accrued rights or liabilities which either Party may have by the effective termination date shall remain unaffected; and
- 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 and due as of the termination date), Section 6, and Sections 8 through 15 (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 14.3 above and the Customer has pre-paid the corresponding Fees for the subsequent Billing Periods in advance – 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.
- 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 5.6).
- 1. Entire Agreement. These Terms, together with any corresponding Order(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.
- 2. Modifications. Company reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time and at its own discretion by posting such changes to this page. The revised version will become effective and binding the next business day after it is posted. Company will make its best efforts to notify all Customers of such changes; provided, however, that if the changes made are material, Company will notify Customer of such changes in writing via email. Notwithstanding the foregoing, Customer acknowledges and agrees that Customer has the affirmative obligation to check these Terms periodically for such changes. Customer’s continued use of the Service following the abovementioned changes to these Terms will constitute Customer’s acceptance of those changes. If Customer does not agree with a modification to the Terms, Customer must notify Company in writing within ten (10) days of the effective date of such changes or, where applicable, Company’s written notification of changes. If Customer gives this notice, the Contract will terminate at the end of the then-current Billing Period. No amendment to or modification of the Order is effective unless it is expressly agreed by the Parties hereto (including, but not limited to, the Order Form that was executed by the Parties in writing; in this case, any amendment or modification to the corresponding Order Form shall be agreed by the Parties in writing). No waiver by any Party of any provisions hereof will be effective unless explicitly outlined 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.
- 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.
- 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.
- 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.
- 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. A copy of notices to Company shall also be sent to email@example.com.
- 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.
- 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.
- 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.
- 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.
- 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.