Itseez3D, Inc. Terms & Conditions
These Terms & Conditions constitute an agreement (the “Agreement”) between you (hereinafter “You” or “Licensee”) and Itseez3D, Inc., a Delaware corporation, having its principal place of business at 84 Santa Clara St, Suite 330, San Jose, CA 95113, United States, and its affiliates (collectively, “Itseez3D”). This Agreement, which is in electronic form, governs your use of your use of Itseez3D’s services as further described herein. You consent to have this Agreement in electronic form and agree that your electronic assent to this Agreement shall be deemed to represent your signature to this Agreement such that a legally-binding contract is created between you and Itseez3D.
1. Licensee’s Fee & Order of Services
1.1 Licensee orders the following ItSeez3D services during the applicable term (the “Subscription Term,” which shall include the full duration of the Initial Term and any Renewal Term collectively), in exchange for the fees (if any) set forth during the order process:
Itseez3D shall provide Licensee (and, if Licensee is a business entity, Licensee’s Authorized Users) with the right to use Itseez3D’s application to collect 3D and RGB data (the “App”), in conjunction with a 3D sensor supported by Itseez3D (currently Occipital and iSense) (the “Sensor”), in order to create 3D models for Licensee (and, if Licensee is a business entity, Licensee’s Authorized Users) for any lawful purpose, including for the purpose of printing 3D objects via a third-party 3D printer (as used in conjunction with the App and the Sensor, the “Itseez Service”). The Itseez Service may be provided via Itseez3D’s cloud server or on Licensee’s local server (the “Local Server”) which contains Itseez3D’s App.
2.1 “Licensee Data” means Licensee’s electronic data or information including Licensee’s Confidential Information that may be stored on Itseez3D’s servers.
2.2 “Authorized Users” means, in the event that Licensee is a business entity, Licensee’s end purchasers of objects produced with 3D printing technology.
2.3 “Confidential Information” means a discloser’s non-public written information, in any form, and all copies, summaries and extracts, which are identified as confidential at the time of disclosure. Confidential Information does not include information that:
(A) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of recipient,
(B) was known to recipient, free of any confidentiality obligations, before its disclosure by discloser,
(C) becomes known to recipient, free of any confidentiality obligations, from a source other than discloser, or
(D) is independently developed by recipient without use of the Confidential Information.
2.4 “Documentation” means any information published by Itseez3D including, without limitation, reference material, help documentation and product information on Itseez3D’s website, relating to the use of Itseez3D product and services, including the App.
2.5 “Order Form(s)” means the Agreement or any other document signed by the parties that describes the App that is being ordered by Licensee, including applicable fees.
2.6 “Professional Services” means any services required for Licensee to implement and use the App as detailed in a separate written agreement, which may include, configuration, implementation, customization, consulting, and training.
2.7 “App” has the meaning set forth in the attached Services Agreement (as such App may be modified or withdrawn by Itseez3D at any in its sole and absolute discretion), including Documentation, along with any releases, updates, or upgrades, licensed to Licensee under the terms of this Agreement
2.8 “Tax(es)” means any tax, fee, or cost not based on Licensee’s net income or capital, including without limitation any sales, excise, value added, use, customs, tariffs, imports, government proposed surcharges, withholding, social security, unemployment, duties, levies, and similar taxes and any fees, penalties, or interest associated with any of the foregoing.
3.1 Subject to the payment of fees set forth in the Order Form, Itseez3D grants Licensee a non-exclusive, non-transferable, non-sublicenseable (except to Authorized Users), revocable license during the Term to access and use the App solely for the purpose of allowing Licensee to create 3D objects for itself (or, if Licensee is a business entity, for Licensee’s Authorized Users) in conformance with applicable law. Upon notice to Licensee, Itseez3D shall have the right to exclude the App from being used to create 3D objects which Itseez3D deems to be objectionable, controversial or illegal, as determined in Itseez3D’s sole and absolute discretion; provided, however, that Itseez3D shall have no duty to monitor Licensee’s or Licensee’s Authorized Users’ (as applicable) use of the App.
4.1 All fees and rates are set out in the Agreement and payable in full in advance. Notwithstanding any other provision contained in this Agreement, in no event shall any refund of fees be due, including, without limitation, in connection (i) with termination of this Agreement by Itseez3D or Licensee, or (ii) removal of Itseez3D’s app from the Apple App Store or any other termination or suspension of Itseez3D by Apple. All fees are denominated in U.S. dollars. All unpaid invoices or amounts due that are not subject to a good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, which is lower, plus all reasonable expenses of collection.
4.2 All fees are exclusive of Taxes imposed by taxing authorities and Licensee shall be responsible for payment of all such Taxes (excluding taxes based on Itseez3D’s income), even if such amounts are not listed in the Agreement. No part of Itseez3D’s compensation under this Agreement will be subject to withholding for any Taxes or other required payments.
4.3 Additional costs for travel expenses, if any, will be reimbursed with Licensee’s prior written consent.
4.4 Itseez3D reserves the right to increase or decrease all future fees at any time and for any reason in its sole and absolute discretion.
4.5 If Itseez3D agrees to allow Licensee to use a Local Server then Licensee shall (i) pay Itseez3D set-up and support fees to be mutually-agreed between Itseez3D and Licensee in writing, and (ii) upon request, give Itseez3D prompt access to the Local Server at a time and place which is reasonably convenient to Itseez3D and Licensee (but in no event later than thirty (30) days after such request has been made).
5. Term, Termination and Survival
5.1 Term. The term of this Agreement will begin on the Effective Date and will continue until the subscription end date, as identified in the Agreement (the “Initial Term”). Following the Initial Term or any Renewal Period as defined below, this Agreement will automatically renew for a subsequent term (each, a “Renewal Period”), unless otherwise agreed by the parties electronically or in writing.
5.2 Termination for Breach. Either party may terminate this Agreement should the other party breach any of its material obligations and the breach continues uncured for 10 days after written notice to the breaching party (which notice may be made via e-mail to the respective e-mail address listed on the signature page hereto). Provided, however, that Itseez3D may terminate this Agreement immediately (i) for the non-payment of any outstanding fees, or (ii) if Licensee’s or Licensee’s Authorized Users breach applicable law in connection with or arising out of the use of the App.
5.3 Termination due to Bankruptcy. Either party may terminate the Agreement with written notice if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is no longer able to function in the normal course of business, or if a receiver is appointed on account of insolvency.
5.4 Termination for Convenience. Either party may terminate this Agreement at any time effective (i) upon thirty (30) days’ written notice (which notice may be made via e-mail), (ii) immediately upon written notice from and after the time that Occipital and/or Apple (or their respective successors and assigns) terminate or request a change to their agreement or relationship with Itseez3D. Licensee’s only obligation to Itseez3D on termination will be to pay any unpaid charges for fees incurred or services performed up to the effective date of termination. Termination by Licensee will not entitle Licensee to any refund for any amounts paid or payable to Itseez3D, including, without limitation, in connection with the license to the App, support services or otherwise.
5.5 Survival. On termination or expiration of this Agreement, each party will be released from all obligations and liabilities to the other party occurring or arising after that date; except that any termination or expiration will not relieve the parties of their obligations under Sections 2 and 4 through 12, nor will termination relieve the parties from liability arising from breach of this Agreement.
6.1 Licensee and Licensee’s Authorized Users have no right or claim to Itseez3D’s intellectual property rights, including, without limitation, in and to the App, the Documentation, the Professional Services, or to Itseez3D’s Confidential Information. Licensee will notify Itseez3D if Licensee becomes aware of any potential infringement of Itseez3D’s rights.
6.2 Except as reasonably necessary to provide the Service, Itseez3D has no intellectual property rights or other claim to the Licensee Data that is hosted, stored, or transferred to and from the App.
6.3 Licensee will not:
(A) use trademarks, trade names, service marks, logos, domain names, other distinctive brand features separate from the App, the Professional Services, or the Documentation without the express written consent of Itseez3D (which consent may be withheld in Itseez3D’s sole discretion); or
(B) remove, obscure, or alter any copyright notice, trademark, or other proprietary right appearing in or on any item included with the App, or the Documentation.
(C) copy, modify, adapt, alter, translate, or create derivative works from the App.
(D) merge the App with other application or software.
(E) distribute, sublicense, lease, rent, loan, or otherwise transfer the App to any third party.
(F) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the App.
(G) take any action that would breach Itseez3D’s rights, including, without limitation, Itseez3D’s copyrights in the App and Documentation.
(H) infringe or violate any third party rights in connection with its use of the App (including, without limitation, any intellectual property rights).
6.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Licensee acknowledges and agrees that although Itseez3D strives to provide high-quality 3D models, Itseez3D shall have no obligation or liability (financial or otherwise) for the quality, merchantability, legality (including, without limitation, any breach of third-party rights) or fitness for a particular purpose of any model created or printed in connection with this Agreement.
7.1 A recipient of Confidential Information hereunder will:
(A) use Confidential Information only as necessary to perform its obligations under this Agreement,
(B) hold Confidential Information in with the same level of care that it holds its own Confidential Information (but in any event with no less than a reasonable level of care)
(C) disclose Confidential Information to only those third parties who provide services to the Recipient and have previously agreed in writing to protect third party confidential information to the same extent as required in this Agreement, and
(D) either promptly deliver or promptly destroy (and certify the destruction to the discloser) all Confidential Information and copies in the recipient’s possession at the discloser’s request and at the expiration or termination of this Agreement; provided, however, that recipient may retain a single copy solely for back-up or archival purposes.
7.2 If a party receives a court order or is otherwise required by law to disclose any Confidential Information obtained from a discloser, the receiving party must:
(A) to the extent allowable by applicable law, notify the discloser immediately on receipt of the court order or other document requiring disclosure so that the discloser may object and move for a protective order, and
(B) if Confidential Information is to be filed with a court, file it under seal or request that the court seal the Confidential Information before disclosure.
7.3 Except as may be required by court order or law, a recipient’s obligations regarding Confidential Information will remain in full force and effect. The recipient acquires no licenses or other rights to Confidential Information under this Agreement.
8. Representations and Warranties; Disclaimer.
8.1 Itseez3D represents and warrants to Licensee that to its knowledge the App will not infringe any third party intellectual property rights; provided, however, that no representation is made with respect to any 3D models created or printed in connection with the App or this Agreement.
8.2 Licensee represents and warrants to Itseez3D that the use of Itsee3D’s products and services, including, without limitation, the App, by Licensee and Licensee’s Authorized Users, shall only be for legal purposes and shall otherwise comply with all applicable legal requirements and third-party rights.
8.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, ITSEEZ3D MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ITSEEZ3D SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ITSEEZ3D DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY OR IN CONNECTION WITH (i) ANY THIRD-PARTY HOSTING, (ii) USING ITSEEZ3D’S PRODUCTS AND SERVICES, AND (iii) ANY IMPROPER, UNAUTHORIZED OR ILLEGAL ACCESS OR USE (INCLUDING, WITHOUT LIMITATION, HACKING) OF ITSEEZ3D’S PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE APP) OR LICENSEE’S DATA (AND/OR AUTHORIZED USERS’ DATA) BY LICENSEE, LICENSEE’S AUTHORIZED USERS OR ANY OTHER THIRD-PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITSEEZ3D AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ITSEEZ3D’S PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE APP) WILL MEET LICENSEE’S OR LICENSEE’S AUTHORIZED USERS’ REQUIREMENTS. LICENSEE ACKNOWLEDGES ON BEHALF OF ITSELF AND ITS AUTHORIZED USERS THAT NEITHER ITSEEZ3D NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ITSEEZ3D IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.1 Itseez3D will defend, indemnify, and hold Licensee, its officers, directors, employees, customers, and agents, harmless from and against any and all third party claims (including losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs) related to or arising out of:
(A) Itseez3D’s gross negligence or willful misconduct, and
(B) Itseez3D’s knowing infringement of an U.S.-registered intellectual property rights of a third party in connection with Licensee’s use of the App; provided, however, that Licensee will supply Itseez3D with prompt written notice of any claims. Itseez3D will have sole control of the defense of any claims, provided, Licensee may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on Licensee will require Licensee’s prior written consent which consent shall not be unreasonably withheld. Licensee will supply Itseez3D with all reasonable assistance and information in the defense and settlement of claims at Itseez3D’s expense.
9.2 If an Infringement Claim endangers or disrupts Licensee’s use of the App, Itseez3D may, in its sole discretion and at no charge to Licensee, take any of the following actions:
(A) obtain a license for Licensee’s continued use of the App,
(B) modify the App to avoid infringement without materially impairing the functionality,
(C) replace the App with a compatible, functionally equivalent, and non-infringing replacement; or, if options (A) through (C) cannot be accomplished under commercially reasonable terms, terminate this Agreement, and refund a pro-rata portion of fees paid in accordance with this Agreement.
9.3 Licensee will defend, indemnify, and hold Itseez3D, its parent, subsidiaries, affiliates and its and their respective officers, directors, employees, stockholders, customers, agents and other representatives harmless from and against any and all third party claims (including losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs related) to or arising out of Licensee’s breach of this Agreement;
provided, however, that Itseez3D will supply Licensee with prompt written notice of any claims (which notice may be made via e-mail to Licensee). Licensee will have sole control of the defense of any claims, provided, Itseez3D may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on Itseez3D will require Itseez3D’s prior written consent which consent shall not be unreasonably withheld. Itseez3D will supply Licensee with all reasonable assistance and information in the defense and settlement of claims at Licensee’s expense.
10. Limitation of Liability
10.1 NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $10,000 OR THE FEES PAID BY LICENSEE TO ITSEEZ3D IN THE PRECEEDING THREE (3) MONTHS
11.1 Reciprocal License. Notwithstanding any other provision of this Agreement, each party hereby grants to the other party a non-exclusive, royalty-free, non-transferable, worldwide license to use and reproduce such party’s trademark(s) or service mark(s) (the “Marks”) on the other party’s website(s) and in presentations in order to publicize the business relationship between the parties in connection with the Agreement (the “Trademark License”).
11.2 Restrictions. Each party (“Trademark Licensee”) shall use the other party’s (“Trademark Licensor”) Marks in conformance with Trademark Licensor’s reasonable trademark usage policies as communicated to Trademark Licensee in writing from time to time. Trademark Licensee shall not attempt to register any of Trademark Licensor’s Marks, nor shall it adopt any derivative or confusingly similar names, brands, or marks, or create any combination marks with Trademark Licensor’s Marks. Trademark Licensee acknowledges Trademark Licensor’s and its affiliates’ ownership and exclusive right to use Trademark Licensor’s Marks and agrees that all goodwill arising as a result of Trademark Licensee’s use of Trademark Licensor’s Marks shall inure solely to the benefit of Trademark Licensor and its affiliates. Except for the Trademark License granted pursuant to Section 11.1, without the prior written approval of the other party, neither party will issue any public statements or promotional materials disclosing the existence of this Agreement or the performance of Services.
12.1 Relationship of Parties. Itseez3D is an independent contractor and is not an agent or employee of Licensee. Except as may be specifically set forth herein, neither party has authority to bind the other by contract or otherwise. Itseez3D will perform any Professional Services under the general direction of Licensee, but Itseez3D will determine, in Itseez3D’s sole discretion, the manner and means that the Professional Services are accomplished, subject to the express conditions that Itseez3D will:
(A) comply with all applicable laws, statutes, ordinances, and regulations,
(B) follow all Licensee supplied guidelines and policies.
12.2 Assignment. The parties’ rights and liabilities will bind and inure to the benefit of their respective successors, executors, and administrators.
12.3 Equitable Relief. Either party may enforce this Agreement and any of its provisions by injunction, specific performance, or any other equitable relief, without prejudice to any other rights and remedies that such party may have, for breach of this Agreement.
12.4 Governing Law; Choice of Forum and Venue.
(A) This Agreement (including the arbitration agreement in this section where applicable) and all matters relating to this Agreement will be governed by and construed in accordance with the laws in force in the State of California without reference to conflict of laws principles;
(B) Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in San Francisco, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and may be entered in any court of competent jurisdiction.
(C) Notwithstanding any provision in this Agreement, either party may request any judicial, administrative, or other authority in any other jurisdiction to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institute of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies.
(D) This Agreement will not be governed by the conflict of laws rules of any jurisdiction, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
12.5 Notice. Any notices will be given to the appropriate party (i) as set forth herein, or (ii) at the address specified at the beginning of this Agreement, or as otherwise specified in writing (including, without limitation, by email). Except as otherwise specifically set forth herein, notice will be by personal delivery, by certified or registered mail, or by reputable courier. Notice will be deemed given on personal delivery to the appropriate address, on receipt of certified or registered mail, or if sent by courier, on the date of delivery shown in the courier’s records.
12.6 Complete Understanding; Modification; Waiver. This Agreement constitutes the full and complete understanding of the parties and supersedes all prior understandings and agreements. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
12.7 Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice (which notice may be made via e-mail to the other party). This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Licensee’s obligation to pay for the Services provided.
12.8 Export. Itseez3D’s Products are subject to the U.S. Export Administration Regulations and Itseez3D will comply with such regulations when providing the App.
12.9 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement will continue in full force and effect.
12.10 Non-Electronic Copy. Licensee has the right to receive this Agreement in non-electronic form. Licensee may request a non-electronic copy of this Agreement either before or after Licensee electronically signs the Agreement. To receive a non-electronic copy of this Agreement, Licensee should send an e-mail to firstname.lastname@example.org.