1 Definitions and interpretation
1.1 In the Agreement, the following words and expressions have the meanings stated below, unless the context requires otherwise.
Affiliate means, with respect to any Person, any other Person, as of the Effective Date or at any time subsequent thereto, which directly or indirectly controls, is controlled by, or is under common control with such first Person, but only for so long as such control exists. For purposes of this definition, "control" of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by ownership of voting stock, by contract or otherwise.
Agreement this collaboration and hosted services license agreement with Schedules (including SOWs) as amended from time to time.
SOW (“Scope of Work”) “SOW” means any statement of work document agreed between Brand3D and Customer, as addendum to or otherwise explicitly referring to this collaboration and hosted services license agreement, in which details concerning specific Hosted Services to be delivered to Customer are detailed.
Confidential Information subject to the exceptions in clause 12.3, any term of the Agreement, any information relating to mediation, arbitration or court proceedings between the Parties in relation to the Agreement and any information disclosed directly or indirectly to the Receiving Party by the Disclosing Party, whether disclosed orally or in written, graphic or electronic form, including the Disclosing Party's intellectual property rights, business, scientific or technical information such as financial information, budgets, business plans and strategies, business operations and systems, information concerning employees, customers and/or licensees and any patent application, trade secret, invention, idea, procedure, formulation, process, formula or data. Brand3D's Confidential Information includes in particular the Agreement, and all Brand3D's knowhow related to the development, commercialisation and use of 3D platforms for visualization of 3D objects.
Customer Content any proprietary content provided by the Customer to Brand3D to be used as the basis of 3D visualization of products etc.
Disclosing Party the Party disclosing material and information, including Confidential Information, under the Agreement.
Documentation the explanatory printed or electronic materials related to the Hosted Services prepared by Brand3D, including license specifications, instructions on how to use the Hosted Services, user manuals and technical specifications (as such materials may be modified from time to time).
Field-of-Use as set out in clause 4.2.
Hosted Services the software in the form of interactive applications, 3D objects, visualizations of 3D objects etc. and associated Documentation that Brand3D provides Customer access to via the internet as set out in a SOW.
License the license granted pursuant to clause 4.
Party Brand3D or Customer.
Parties Brand3D and Customer.
Person any individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company or other entity of any kind.
Personal Data as set out in clause 7.3.
Receiving Party the Party receiving material and information, including Confidential Information, under the Agreement.
Schedule a schedule to the Agreement.
Term the period from the Effective Date to the termination of the Agreement.
1.2 The Agreement is the result of the Parties' negotiations, and it cannot be interpreted against a Party as a consequence of such Party having drafted one or more of the provisions of the Agreement.
1.3 Expressions, such as "including" and similar expressions, mean "including, but not limited to".
1.4 Words in the singular include the plural and vice versa.
1.5 The headings of the Agreement are for guidance only and have no separate legal effect on the understanding or interpretation of the provisions of the Agreement.
2 Purpose and background
2.1 Brand3D provides a 3D hosting platform for visualization of 3D objects on web sites, hosting of said objects, distribution of 3D objects over the Internet as well as the development of web applications that embed interactive 3D objects. Additionally, Brand3D provides services to its customers to create 3D objects, 3D interactive applications, 3D games and other applications for use on its platforms.
2.2 Under the Agreement Brand3D will offer the customer access to its platform for a monthly subscription fee and provide work, in accordance with an agreed SOW (in schedule to this contract) for custom application development and services.
3 The License and Limitations
3.1 Subject to the terms and conditions set out in the Agreement, Brand3D grants to the Customer a non-exclusive, revocable, non-transferable (except as otherwise permitted in the Agreement), limited license to use the Hosted Services (including any subsequent updates of the Hosted Services made available to the Customer as set out in clause 5) to use the Hosted Services as set out in the Agreement.
3.2 The Customer’s License includes the right to use the Hosted Services for the incorporation of the Hosted Services on an unlimited number of web sites of Customer and its Affiliates, as long as such web sites are owned or controlled by Customer or its Affiliates.
3.3 Except as set out in the Agreement, expressly authorised in writing by Brand3D or permitted by mandatory applicable law, the Customer is not entitled to rent, lease, transfer, modify, translate, reverse engineer, de-compile, disassemble or create derivative works based on the Hosted Services.
3.4 The Hosted Services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of applicable law or third-party rights is strictly prohibited. the Customer agrees to indemnify and hold Brand3D harmless from any third-party claims resulting from the Customer’s unlawful use of the Hosted Services.
3.5 The license terms in the Agreement supersede any license terms that may be embedded in the Hosted Services or otherwise presented to the Customer.
3.6 Any use of the Hosted Services outside the license specifically granted by Brand3D constitutes an infringement of Brand3D's intellectual property rights and is a material breach of the Agreement.
4 Ownership of Intellectual property rights
4.1 Title to the Hosted Services and all applicable rights including copyrights, trade secrets and other intellectual property rights inherent in the Hosted Services will remain with Brand3D or the relevant third parties from whom Brand3D has obtained the right to license the Hosted Services. All rights in databases (including all data compilations) attaching to data in the Hosted Services belongs to Brand3D. No title to or ownership in the Hosted Services are transferred to the Customer.
4.2 Brand3D and its suppliers shall keep all rights to software, know-how, inventions and the like used in connection with the provision of the Hosted Services. Any modifications, improvements and/or derivative works of the Hosted Services made by or on behalf of Brand3D or the Customer shall be owned solely by Brand3D and the Customer hereby assigns and agrees to assign any rights it may hold to such works to Brand3D.
4.3 Title to Customer Content and all applicable rights including copyrights, trade secrets and other intellectual property rights inherent in the Customer Content will remain with the Customer or the relevant Third Parties from whom the Customer has obtained the right to use the Customer Content or part thereof. However, all Customer Content is developed with the purpose of being used with the Hosted Services and is not intended to be used elsewhere. All Customer Content developed by Brand3D will only be made available as part of the Hosted Services.
4.4 Brand3D reserves all rights in the Hosted Services not explicitly granted in the Agreement.
5 Data Processing and Security
5.1 The Customer acknowledges and agrees that the Hosted Services is provided by Brand3D from a public cloud hosted by a third-party hosting provider, currently, Amazon Web Services, Inc. and its affiliates ("Amazon"). More information regarding the current security processes may be found on http://aws.amazon.com/security. Brand3D may change its third-party hosting provider at any time upon written notice to the Customer.
5.2 As a part of Brand3D's provision of the Hosted Services, Brand3D will detect and register non-personal technical information about the Hosted Services and the devices used to access the Hosted Services ("Technical Data"). Brand3D processes Technical Data relevant and necessary for providing the Hosted Services, including maintenance and support, and for developing new products. By entering into the Agreement, the Customer agree that Technical Data collected during the term of the Agreement may be processed by Brand3D and its collaborators both during and after the term of the Agreement for any purpose.
5.3 To the extent the Customer or the users of its website provides any information relating to an identified or identifiable natural person ("Personal Data") to Brand3D for its delivery of Hosted Services and fulfilment of the Agreement, Brand3D is data processor and the Customer is data controller under the applicable legislation concerning processing of Personal Data in connection with the provision of the Hosted Services. Consequently, it is agreed that in relation to data processing Brand3D shall act solely on the Customer's instructions. Brand3D shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks, that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, provided, however, that Brand3D shall not be obliged to take measures which would require changes to the technical or contractual set-up with the third party hosting provider.
5.4 If required, the Customer and Brand3D will enter into a data processing agreement setting out more detailed provisions to comply with applicable data protection law.
5.5 The Customer will be solely responsible and liable for its compliance with applicable law as controller. The Customer will ensure before receiving the Hosted Services under the Agreement in a way that includes processing of personal data that it complies with all data protection law, e.g. in relation to the provision of required information/notification to and/or approvals from data subjects and/or regulatory authorities related to the processing. The Customer will promptly notify Brand3D if it becomes aware that processing of the Personal Data may be contrary to data protection law.
5.6 Upon the Customer's request, Brand3D will provide the Customer with adequate information in order for the Customer to ensure that the technical and organisational security measures in clause 7.3 is conducted. The Customer will bear any costs related to such request, audits and inspections and Brand3D shall be entitled to charge the Customer separately for any cost (including internal resources at Brand3D's standard rates) Brand3D may incur in relation to its assistance with such requests, audits and inspections.
5.7 Brand3D is entitled to invoice the Customer for the documented time at Brand3D's standard rates.
5.8 The Customer is responsible for back up and for printing Personal Data and other data used in connection with the Customer's use of the Hosted Services for archival and other purposes.
5.9 The Customer acknowledges and agrees that Customer Data may be processed in the United States, and that data is transmitted unencrypted over public Internet infrastructure. Prior to including information containing personal data when using the Hosted Services, the Customer will ensure that such intended use of the Hosted Services comply with all relevant laws and regulations, including those related to processing of Personal Data. Brand3D shall not be obliged to change the Hosted Services to meet the Customer's specific requirements.
5.10 The Customer acknowledges and agrees that the Customer is responsible for ensuring the security of the devices and data connections used to access the Hosted Services.
5.11 The Customer warrants that Brand3D's compliance with any instruction from the Customer with respect to the processing of Personal Data and delivery of the Hosted Services, shall not result in a violation of applicable data protection law. The Customer will indemnify Brand3D from any loss resulting from the Customer's failure to comply with its obligations hereunder.
6 Customer's Obligations
6.1 It is a precondition for the Customer's and the users of its websites' use of the Hosted Services that the Customer and/or the users of the Customer's websites have established network access that may be used for transfer of data between the Customer and/or the users of its websites and the data center used by Brand3D. The Customer or the users of its websites carries all expenses and the complete liability for this network access.
6.2 The Customer guarantees that it will observe applicable laws and regulatory procedures, including with regard to the contemplated use of the Hosted Services. The Customer's own liability and obligations includes in particular processing of data, including in respect of personal data and administrative regulations. The Customer must obtain all necessary licenses and approvals from Third Parties (including users of the Customer's websites) in order for Brand3D to fulfil its obligations and for the Customer's use of the Hosted Services to be legal.
6.3 The Customer must notify Brand3D immediately upon recognition of defaults and defects of the Hosted Services.
7.1 Brand3D warrants and guarantees that during the term of the Agreement, the Hosted Services will essentially meet the specifications of the Agreement to the effect that it will essentially work when accessed from a system with the recommended specifications. Brand3D does not warrant, however, that use of the Hosted Services will be uninterrupted or that the operation of the Hosted Services will be error free.
7.2 Without limitation to the Customer’s other remedies available under the Agreement, in case of Brand3D's breach of the warranties in clause 10.1 with respect to the Hosted Services, Brand3D shall be obligated to perform a prompt correction of the defects in the Hosted Services causing such breach.
7.3 The warranty in clause 10.1 will not apply to the extent the breach of the warranty is caused by: (i) the Hosted Services not being used in accordance with the instructions and recommendations provided by Brand3D, including the Documentation; (ii) the Hosted Services or any part thereof being modified without the prior written consent of Brand3D; (iii) the failure of the Hosted Services to function in accordance with the specifications is caused by instabilities or other failures in the proper functioning of the Customer’s client software, e.g. the Customer Engine, regardless of the cause; or (iv) a defect is otherwise caused by events outside Brand3D's control.
7.4 Brand3D does not provide any other conditions, warranties or representations, including in respect of the Hosted Services’ suitability for specific purposes, than explicitly set out in this clause 10. To the furthest extent possible according to applicable law any additional non-mandatory rights and obligations are hereby disclaimed.
8 Limitation of liability
8.1 Brand3D is liable for damages for losses resulting from actions or omissions caused by Brand3D subject to the limitations stated in clauses 11.2-11.6 and which will apply irrespective of whether the basis of liability is negligent or otherwise.
8.2 Except for Brand3D's limited guarantee under clause 10.1, Brand3D disclaims any liability with respect to the Hosted Services. If Brand3D breaches any guarantee, the Customer's only remedy for breach and Brand3D's only liability will be, at the discretion of Brand3D, (i) the full or partial refund of the paid license fee concerning the Hosted Services in the period in which the Hosted Services was defective, but no more than the license fee paid for the last 12 months; or (ii) the correction of the defects in the Hosted Services causing such breach.
8.3 Brand3D is not liable for any consequential or indirect damages, including, loss of profit, loss of production, loss related to the Customer's inability to use the Hosted Services as contemplated, loss of reputation, penalties, loss related to unauthorised persons access to data or systems, loss related to breach or termination of contracts with Third Parties or loss related to the loss or disruption of data arising out of or relating to the Agreement, whether or not Brand3D has been advised of the possibility of such damages.
8.4 Brand3D's aggregate and total liability under the Agreement will be capped at the higher amount of (i) the fees actually paid or payable to Brand3D under the Agreement in the 12 months preceding the event giving rise to the claim and (ii) USD $10,000.
8.5 Nothing in the Agreement shall be construed to limit Brand3D's liability under the mandatory provisions of applicable product liability laws in the State of Florida. Any product liability is, however, disclaimed to the furthest extent possible according to applicable laws.
8.6 The Customer will not be entitled to make claims for damages after the at the latest 12 months after the incident giving rise to the claim.
8.7 The limitation of Brand3D's liability for any damage set out in this clause 11 will not apply if any such damage has been caused by the wilful misconduct or gross negligence of Brand3D or any Person for whose actions or omissions Brand3D is legally liable.
9 Confidentiality and Publication
9.1 The Receiving Party is obligated to keep confidential all Confidential Information and must not publish or otherwise disclose to any third party any Confidential Information or any information generated by the Receiving Party based on or deriving from Confidential Information provided by the Disclosing Party during the Term without the Disclosing Party's prior written consent, except as provided in this clause 12.
9.2 The Receiving Party may only disclose Confidential Information or any information generated by the Receiving Party on the basis of or deriving from Confidential Information provided by the Disclosing Party under the Agreement to the members of the board of directors, executive officers, employees, consultants, professional advisors and agents of the Receiving Party and its Affiliates (the "Authorised Recipients") who need knowledge of such information to fulfil the Receiving Party's obligations under the Agreement or as otherwise contemplated herein. Each Authorised Recipient receiving Confidential Information must be informed of the confidential nature of the Confidential Information and must be subject to a duty of confidentiality to the Receiving Party under terms no less restrictive than the terms of the Agreement. The Receiving Party is liable for any of the Authorised Recipients' breach of the Agreement.
9.3 Subject to written evidence provided by the Receiving Party to that effect, Confidential Information does not include information:
(a) that is or subsequently becomes available to the public from a single source in any other manner than as a result of the Receiving Party's actions or failure to take any action;
(b) that is already in the Receiving Party's possession at the time of the Disclosing Party's disclosure to the Receiving Party;
(c) that has been independently developed by the Receiving Party or for the Receiving Party by its employees or contractors who did not have access to the Confidential Information; or
(d) that is subsequently disclosed to the Receiving Party through a third party entitled to disclose such information without restriction on disclosure.
9.4 If the disclosure of Confidential Information or of any information generated by the Receiving Party on the basis of or deriving from Confidential Information provided by the Disclosing Party under the Agreement is required (i) by a competent court or public authority; (ii) or under mandatory statutory provisions; (iii) or in accordance with the rules for companies having shares listed for trading on a regulated market where the shares or other securities of the Receiving Party or its Affiliates are listed, this clause 12 will not apply to such disclosure. Such disclosure is, however, subject to:
(a) the Receiving Party's prompt prior notification thereof to the Disclosing Party to enable the Disclosing Party to obtain an injunction or otherwise prevent such disclosure, and the Receiving Party will provide reasonable assistance in this connection; and
(b) the Receiving Party only disclosing the minimum amount of Confidential Information required to be disclosed to comply with mandatory law.
9.5 The Receiving Party may use Confidential Information only to the extent required to fulfil its obligations under the Agreement or as otherwise contemplated herein. In particular, the Receiving Party must not file any patent application or initiate any procedure to obtain any legal rights containing any claim the subject matter of which contains, is based on or derives from the Disclosing Party's Confidential Information.
9.6 The Receiving Party's obligations under the Agreement also apply to information disclosed by or on behalf of the Disclosing Party before the Effective Date, provided that such information was disclosed to the Receiving Party in connection with the Agreement.
9.7 All Confidential Information, including any copies or other material prepared on the basis of the Confidential Information, must remain the property of the Disclosing Party at all times.
9.8 The Receiving Party's obligations under this clause 12 will be unlimited in time.
10 TERM and termination
10.1 The Agreement will enter into force at the time of the first payment of any invoice issued by Brand3D for its products or services. The termination period and any other special conditions will be agreed in an Order Form to which these terms and conditions serve as an addendum.
10.2 Either Party may with immediate effect terminate the Agreement by written notice to the other Party If the other Party breaches any material provision of the Agreement and such breach is not cured within 60 days after written notice thereof is received by the breaching Party.
10.3 Notwithstanding clause 13.2, in the event of the Customer's failure to adhere to the restrictions of the license according to clause 4, Brand3D may, by giving notice to the Customer, suspend the Customer's access to the Hosted Services in whole or in part or terminate the Agreement in its entirety with immediate effect.
11 Effect of termination
11.1 The license granted will cease upon any termination of the Agreement and Brand3D will be entitled to terminate the Customer's access to the Hosted Services without further notice.
11.2 Provisions in the Agreement relating to obligations which have accrued or explicitly or by implication have application beyond the term of the Agreement and any provision required to interpret and enforce the Parties' rights and obligations under the Agreement to the extent required for the full observation and performance of the Agreement shall survive any termination or expiration of the Agreement.
12 Other provisions
12.1 The Parties are independent contractors and engage in the operations of their own respective businesses. Neither Party is to be considered the agent or employee of the other Party for any purpose, and neither Party has the authority to enter into any contract or assume any obligation for the other Party or to make any warranty or representation for the other Party. Each Party is fully responsible for its own employees and agents, and the employees and agents of one Party must not be deemed to be employees and agents of the other Party for any purpose.
12.2 Each Party's expenses and the fees and expenses of its advisors incurred in connection with the negotiation, delivery and performance of this Agreement are for such Party's own account.
12.3 No modification to or variation of the Agreement, nor any waiver of any rights will be effective unless committed to in writing and signed by both Parties.
12.4 Any of the provisions of the Agreement which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the terms of the Agreement in any other jurisdiction. The Parties shall use their best efforts to agree upon a valid and enforceable provision as a substitute for any invalid or unenforceable provision, taking into account the Parties’ original intent of the Agreement.
12.5 The Agreement constitutes the entire agreement of the Parties and supersedes any prior agreements between them with respect to the subject matter hereof.
12.6 Neither Party is entitled to assign in full nor in part, the rights and obligations set out in the Agreement without the prior written consent of the other Party, provided, however, that Brand3D will be entitled to assign the Agreement without the Customer's consent to i) any Affiliate or ii) to any entity in connection with a sale of all or a substantial part of its business to which this Agreement relates.
13 Governing law and disputes
13.1 The Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.