3D ISSUE LIMITED
3D ISSUE content hubs SOFTWARE AS A SERVICE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY.
THE FOLLOWING IS A LEGAL AGREEMENT BETWEEN 3D ISSUE LIMITED (“3D ISSUE”) AND YOU AND CONSTITUTES THE TERMS AND CONDITIONS GOVERNING THE USE OF THE 3D ISSUE content hubs SOFTWARE TO CREATE DIGITAL EDITIONS FROM CONTENT THAT IS OWNED BY YOU. BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICES AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.
1. DEFINITIONS.
“Agreement” – these terms of use, any Order Forms, whether written or submitted online, and any materials available on the Website specifically incorporated by reference herein;
“Content” – the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
“Received Data” – any data, information or material provided or submitted by the Licensee or any Vendor User to 3D ISSUE in the course of using the Service;
“Effective Date” – the date of acceptance of this Agreement;
“Fees” – the fees payable by the Licensee for the provision of the Services as set out in the Order Form.
“Intellectual Property Rights” – all intellectual property rights including patents, trade marks, service marks, design rights, copyright, database rights, moral rights (whether or not any of these are registered and including any applications for registration of any such rights), inventions, know how, confidential information and trade secrets, together with all goodwill attaching or relating thereto, and all rights or forms of protection of a similar nature or having similar effect to any of these which may exist or come into existence in the future anywhere in the world;
“License Administrator(s)” – those Vendor Users designated by you who are authorised to execute written Order Forms and to create Vendor User accounts and otherwise administer your use of the Service;
“Order Form(s)” – the form evidencing the initial subscription for the Service and any subsequent order forms submitted, in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
“3D Issue content hubs” – the software, applications and website known as 3D Issue content hubs;
“3D ISSUE Technology” – all of 3D ISSUES’ proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by 3D ISSUE in providing the Service;
“Service(s)” – the right to use 3D ISSUES’ 3D Issue content hubs software identified in an Order Form and / or ancillary online or offline products and services provided to you by 3D ISSUE, to which you are being granted access under this Agreement, including the 3D ISSUE Technology and the Content;
“Term” – a period of twelve (12) months as specified on each Order Form commencing on the Effective Date.
“Vendor User(s)” – your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by 3D ISSUE at your request).
“Website” – www.3dissue.com
“you” or “your” – the Licensee.
2. SCOPE OF AGREEMENT.
2.1 3D ISSUE will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your execution of this Agreement and / or registration for, or use of, the Service shall be deemed to be your acceptance to abide by this Agreement including any materials available on the Website incorporated by reference herein, including but not limited to the privacy and security policies.
3. LICENSE GRANT.
3.1 3D ISSUE hereby grants you a non-exclusive, worldwide, non-assignable license to use the Services for the Term. You are restricted to use of the Services for internal business purposes only. Use of the Services for any other purpose is subject to the prior written consent of 3D ISSUE and you acknowledge that additional fees may be payable on 3D ISSUES’ approval of a change of use.
3.2 The rights granted by way of this clause are restricted to the number of Vendor Users as may be specified in Order Form. In the event that the Licensee wishes to increase the maximum permitted number of Vendor Users then it must inform 3D ISSUE and a revised Order Form will be executed to form part of this Agreement.
3.3 In connection with the license granted to you pursuant to this clause you hereby authorise 3D ISSUE to:
3.3.1 collect, format and host your content on 3D Issue content hubs;
3.3.2 collect, format and then post digital editions of the content onto your website; and
3.3.3 collect, format and provide you with the ability to download the files from the Website and post them onto your own site.
4. LICENSE RESTRICTIONS.
4.1 You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content or the 3D ISSUE Technology in any way; (ii) modify or make derivative works based upon the Service or the Content or the 3D ISSUE Technology; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service or the 3D ISSUE Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (v) use the Services for any number of Vendor Users in excess of the maximum number of Vendor Users as set out in the Order Form; or (vi) publish or distribute externally any results of any use of the Services for any form of benchmarking or software comparison purposes.
4.2 You may not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights and / or third party’s Intellectual Property Rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
5. SERVICE AND NETWORK AVAILABILITY
5.1 The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. 3D ISSUE is not responsible for any delays, delivery failures, or other damage resulting from such problems however, 3D ISSUE will endeavour to keep such delays to a minimum. Weekly maintenance will occur between the hours of 1 a.m. to 4 a.m. (Pacific Standard Time or Pacific Daylight Time as applicable) where the Services will not be available to the Licensee. Periodically 3D ISSUE may also need to schedule maintenance periods outside of the weekly scheduled time and during such periods the Services will not be available to the Licensee. 3D ISSUE will provide the Licensee with reasonable notice of any downtime due to non routine maintenance and will endeavour to ensure that any non routine maintenance periods take place outside of the Licensee’s normal business hours.
5.2 3D ISSUE does not guarantee network availability between the Licensee and the 3D ISSUE hosting servers as network availability can involve numerous third parties and is beyond the control of 3D ISSUE. 3D ISSUE will not be liable for any downtown caused by its internet provider nor for any downtime that you experience as a result of your own network connectivity issues.
5.3 If you experience a Service outage and are unable to access the Services, you must immediately contact 3D ISSUES’ help desk and notify 3D ISSUE of the service outage, providing any/all necessary information that may assist 3D ISSUES’ technical support in determining the cause of the outage.
6. SUPPORT
6.1 Support is provided via email at the following email address: support@3dissue.com.
7. SERVICE FEES & BILLING
7.1 The Fees for use of the Services and billing and payment terms are as set out in the Order Form and you agree to pay the Fees. The Fees are payable annually in advance and all payment obligations are non-cancellable and all amounts paid are non-refundable.
7.2 3D ISSUE reserves the right to modify its Fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
7.3 You agree to provide 3D ISSUE with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, 3D ISSUE reserves the right to terminate your access to the Services in addition to any other legal remedies.
8. ACCOUNT INFORMATION & DATA
8.1 3D ISSUE does not own any data, information or material that you submit to the Service in the course of using the Service (“Received Data”). You, not 3D ISSUE, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Received Data, and 3D ISSUE shall not be responsible or liable for any infringement of Intellectual Property Rights of any third party or for the deletion, correction, destruction, damage, loss or failure to store any Received Data. In the event this Agreement is terminated (other than by reason of your breach), 3D ISSUE will make available to you a file of the Received Data within 30 days of termination if you so request at the time of termination. 3D ISSUE reserves the right to withhold, remove and/or discard Received Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Received Data immediately ceases, and 3D ISSUE shall have no obligation to maintain or forward any Received Data.
8.2 The license of the Service grants you the right to create digital editions from content that is wholly owned by you. You are not permitted to use the Service to create digital editions from content owned by a third party without the express permission of the owner of that content. If you are found to be in violation of this Agreement, 3D ISSUE reserves the right to terminate this Agreement immediately, at which time you must destroy all copies of the 3D Issue content hubs software you have previously installed.
9. INTELLECTUAL PROPERTY & INFRINGEMENT CLAIMS
9.1 You acknowledge that all Intellectual Property Rights in the Services, Content and 3D ISSUE Technology belong and shall belong to 3D ISSUE. You have no rights in or to the Services, Content and 3D ISSUE Technology other than the right to use it in accordance with the terms of this Agreement.
9.2 At 3D ISSUES’ sole expense, 3D ISSUE shall defend you or, at its option, settle any Infringement Claim or action brought against you alleging that the use of the Services, Content and 3D ISSUE Technology in accordance with the terms of this Agreement infringes the Irish Intellectual Property Rights of a third party (an “Infringement Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against as a result of or in connection with any such Infringement Claim.
9.3 For the avoidance of doubt, this clause shall not apply where the Infringement Claim in question arises from the use of the Services, Content or 3D ISSUE Technology other than in accordance with the terms of this Agreement.
9.4 As a condition of obtaining an indemnity in the circumstances set out above you agree to immediately:
9.4.1 fully and promptly notify 3D ISSUE of any Infringement Claim, or threatened Infringement Claim;
9.4.2 not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of 3D ISSUE, which consent shall not be unreasonably withheld or delayed;
9.4.3 permit 3D ISSUE to take full control of such Infringement Claim, including settling it at 3D ISSUES’ expense; and
9.4.4 give reasonable assistance in the investigation and defence of such Infringement Claim.
9.5 If any Infringement Claim is made, or in 3D ISSUES’ reasonable opinion is likely to be made, against you, 3D ISSUE may at its sole option and expense:
9.5.1 procure for you the right to continue using the Services in accordance with the terms of this Agreement;
9.5.2 modify the Services so that they ceases to be infringing;
9.5.3 replace the Services; or
9.5.4 terminate this agreement on 7 days notice.
9.6 You accept sole responsibility for collecting and displaying of content within the 3D Issue content hubs application. The 3D Issue content hubs software is not designed, nor does it intend to encourage or allow for the distribution of copyrighted, trademarked, patented content or other protected data. If you are using the Services to redistribute copyrighted content, 3D ISSUE demands that you cease and desist from doing so and 3D ISSUE reserves the right to terminate this Agreement immediately. We further remind you that the unauthorised redistribution of copyrighted content is illegal. We ask that you respect the copyright of content creator.
10. LIMITED WARRANTY
10.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
11. DISCLAIMER OF WARRANTIES
11.1 3D ISSUE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. 3D ISSUE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY 3D ISSUE.
12. LIMITATION OF LIABILITY
12.1 THE TOTAL LIABILITY OF 3D ISSUE, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER IN CONNECTION WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT, SHALL IN NO CIRCUMSTANCES EXCEED A SUM EQUAL TO THE FEES RECEIVED BY 3D ISSUE FROM THE LICENSEE IN THE 12 MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM BY THE LICENSEE.
12.2 IN NO EVENT SHALL 3D ISSUE BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. LICENSEE INDEMNITY
13.1 You shall defend, indemnify and hold 3D ISSUE, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Received Data infringes the rights of, or has caused harm to, the party that supplied the Received Data or a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or any Vendor User of this Agreement, provided in any such case that 3D ISSUE (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release 3D ISSUE of all liability and such settlement does not affect 3D ISSUES’ business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
14. TERMINATION
14.1 Either party may terminate this Licence at any time on written notice to the other if:
14.1.1 the other is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach;
14.1.2 the other is deemed to be unable to pay its debts within the meaning of section 214 of the Companies Act 1963, is unable to pay its debts as they fall due, commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of or composition with its creditors;
14.1.3 the other ceases carrying on, threatens to cease carrying on, or disposes of its business or a material part of its business;
14.1.4 the other takes any corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution, examinership or re-organisation or for the appointment of a liquidator, receiver, examiner, conservator, custodian, trustee or similar officer of it or of any or all of its revenues and assets; or
14.1.5 any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertakings or assets of the other or any event occurs which under the laws of any jurisdiction has a similar or analogous effect.
14.2 3D ISSUE may immediately terminate this Licence and your access to the Service in the event that 3D ISSUE becomes aware or receives a complaint from a third party that you are using the Services in a manner which infringes any third party’s Intellectual Property Rights.
14.3 In the event that 3D ISSUE increases the Fees payable by the Licensee in accordance with the provisions of clause 7 then Licensee may terminate this Agreement on 90 days written notice to 3D ISSUE provided such notice is served within 30 days of any Fee increase.
14.4 On termination of this Agreement for any reason:
14.4.1 all licences granted to you under this Agreement shall cease;
14.4.2 you shall cease all activities authorised by this Agreement; and
14.4.3 you shall immediately pay to 3D ISSUE any Fees due under this Agreement.
15. MISCELLANEOUS PROVISIONS
15.1 Confidentiality. During the term of this Agreement, and for a period of 5 years after its expiry or termination, each party shall keep confidential, and not use for its own purposes nor without the prior written consent of the other disclose to any third party any, all and any information of a confidential nature, including trade secrets and information of commercial value, which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Without prejudice to the provisions of this clause, for marketing purpose the Licensee hereby grants 3D ISSUE the right to identify the Licensee as a customer of 3D ISSUE.
15.2 Assignment. This Agreement may not be assigned by you without the prior written approval of 3D ISSUE but may be assigned without your consent by 3D ISSUE to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of 3D ISSUE directly or indirectly owning or controlling 50% or more of you shall entitle 3D ISSUE to terminate this Agreement for cause immediately upon written notice.
15.3 Force Majeure. Neither party shall be liable for failure or delay in the performance of any of its obligations under this Agreement if such failure or delay results from Force Majeure, but any such failure or delay shall be remedied as soon as practicable.
15.4 Notices. Any notice or other communication whether required or permitted to be given under this Agreement shall be given in writing and shall be deemed to have been duly given if delivered by hand to the addressee or sent by registered post to the addressee at the address set out for such party in this Agreement (or such other address as that party may from time to time designate in writing to the other parties in accordance with the provisions of this Clause). Any such notice shall be deemed to have been duly given if delivered, at the time of delivery, if sent by registered post, forty eight hours after posting.
15.5 Severability. If any provision in this Agreement is deemed to be, or becomes invalid, illegal, void or unenforceable under applicable laws, such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the parties, it will be deleted, but the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.
15.6 Parties Bound. This Agreement shall be binding upon and run for the benefit of the parties, their successors and permitted assigns.
15.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to their subject matter, and except as expressly provided, supersede all prior representations, writings, negotiations or understandings with respect to that subject matter.
15.8 Further Assurance. Each party shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably within its power to implement this Agreement.
15.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.
15.10 Waivers and Variations. A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy. No variation of this Agreement shall be effective unless it is made in writing and signed by each of the parties.
15.11 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Ireland, and shall be subject to the exclusive jurisdiction of the Irish courts.
