These iSee3D Platform as a Service (“PaaS”) Terms and Conditions (“Terms and Conditions”) are related to PaaS subscription between B.V. Bouwtechnisch Adviesburo ir. W.A. van Boxsel C. I, a Dutch corporation having a principal place of business in The Netherlands (“iSee3D”) and the subscribed client (the “Client”). Client’s PaaS subscription (subject to the payment of the Subscription fee and the provisions for termination set out in this Agreement) shall be deemed Client’s agreement to these Terms and Conditions.
For purposes of these Terms and Conditions, the terms below shall have the meanings defined below.
1.1 “Client Content” means any data, information, trademarks, logos, files, images, text or other content that may be provided by Client or its authorized users for use in conjunction with the Services. The Client Content used in conjunction with the Service is stored and maintained in the AWS cloud platform.
1.2 “Subscription Fee” means the fee which covers the provision of the Services during PaaS Term payable monthly in advance per end user with a unique license code allocated to each end user connected to the Service. Additional end user licenses can be purchased and added as and when required to expand the number of end users connected to a Service.
1.3 “PaaS Term” means the period during which the Services will be provided by iSee3D to Client, including the Initial Term and any Renewal Terms (as each is defined in Section 8.1).
1.4 “Services” means the hosting, maintenance, support and other services provided by iSee3D pursuant to these Terms and Conditions.
1.5 “PaaS” means iSee3D Platform as a Service offering that is based on iSee3D’s platform and provisioned as a service by iSee3D. It can be used to support various different use cases in the area of the distribution of 3D models for business purposes. Depending on the use case, the Client can access PaaS using a web browser or API.
1.6 “User Documentation” means iSee3D user documentation relating to the PaaS.
2. WEB-BASED LICENSE
iSee3D grants to Client, and Client accepts, a non-transferable, non-exclusive license and right to access the PaaS via the Internet and use the PaaS and the User Documentation only as authorized in these Terms and Conditions, for the purpose of enabling its business operations during the PaaS Term. The PaaS will be managed by iSee3D (as described in Section 3) and accessed and used by Client through the use of the Internet and Client’s computers.
iSee3D will make the PaaS available for Client’s use during the PaaS Term on Client’s web browser that meet the iSee3D Recommendations for accessing the PaaS that Client acknowledges it has reviewed. iSee3D will provide Client with secure access to the latest supported version of the PaaS via the Internet from the hosting facility iSee3D has chosen to use for the Service (the “Hosting Site”) on a 24×7 basis (excludes scheduled downtime), except for scheduled on-going maintenance as required and scheduled in advance by iSee3D.
Any Client’s employees, or any other party using the PaaS on behalf of the Client accessing Client Content, accessing or using the PaaS have to have valid license.
5. USER RIGHTS AND LIMITATIONS
By accessing and using the PaaS thru the Service provisioned,
• comply with applicable laws
• comply with any codes of conduct or other notices provided by iSee3D;
• keep its password/s and other authentication details secret;
• promptly notify iSee3D if it learns of a security breach or unauthorized access related to the Service.
Client may not:
• use the Service in any way that harms iSee3D or its Affiliates, resellers, distributors and/or vendors (collectively, the “iSee3D parties”), or any customer of a iSee3D party or the Service or other Users of the Service;
• engage in, facilitate, or further unlawful conduct;
• damage, disable, overburden or impair the Service (or the networks connected to the Service) or interfere with anyone’s use and enjoyment of the Service;
• resell or redistribute the Service, or any part of the Service, unless Client has a contract with iSee3D that permits it to do so;
• use any unauthorized automated process or service to access and/or use the Service, however, periodic automated access to the Service for report creation or scheduling is permitted;
• use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
• modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology, or system used by iSee3D in connection with providing the Service, except and only to the extent that applicable law expressly permits Customer to do so despite this limitation;
• copy any ideas, features, functions or graphics of the Service.
6. SERVICE FEES
In order to access and use the PaaS, Client shall pay a “Subscription Fee” communicated to the Client on monthly basis during the PaaS Term. The Subscription Fee is fixed for the Initial Term and the First Renewal Term (defined below). The Subscription Fee for any subsequent Renewal Term (defined below) may be subject adjustment decided by iSee3D at its sole discretion. If Subscription Fees are not paid in accordance with the provisions hereof and any additional terms of payment communicated to Client by iSee3D, all further access to the Service will be blocked without notice.
In consideration of the provision of any other services provided by iSee3D to Client, Client shall pay additional fees based on iSee3D then current Service fees.
iSee3D shall send to Client an invoice in respect of the Subscription Fee and any Extension Fees in advance. All invoices are payable within the terms specified in the invoice by iSee3D after the date thereof unless otherwise agreed in writing.
7. TERM AND TERMINATION
7.1 Initial Term; Renewal Terms
The PaaS Term will commence when iSee3D makes the PaaS available to the Client via the Internet as contemplated by Section 2 (“Web-based license”) above. The PaaS Term shall continue in effect for a period of one month (the “Initial Term”), unless earlier terminated as provided in these Terms and Conditions. Upon expiration of the Initial Term, the PaaS Term shall automatically renew with the Client payment of Subscription fee to iSee3D for successive renewal terms of twelve (12) months each (each a “Renewal Term”) unless earlier terminated as provided in these Terms and Conditions.
7.2 Termination for Breach
Notwithstanding Section 7.1, either Client or iSee3D may terminate the PaaS Term as a result of a material breach of these Terms and Conditions by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Client after a full month payment period. For purposes of this Section, a material breach by iSee3D includes a failure to provide at least 98.6% availability in three (3) consecutive calendar months. If a breach described in the preceding sentence occurs, Client shall have to right to forego termination and request a refund of remaining Subscription Fees commensurate with the lack of availability.
7.3 Termination for Convenience
Subject to Section 7.4 (Effect of Termination) below, Client has the right to terminate this contract at any time during the Renewal term, but latest 45 days before the end of the Renewal Term. The termination will be effective at the end of the Renewal term.
7.4 Effect of Termination
In the event the PaaS Term is terminated by Client for convenience or by iSee3D as a result of a material breach by Client prior to the completion of the Initial Term or any Renewal Term, Client shall pay iSee3D the remaining balance of Subscription Fees owed for the entire Initial Term or, if then in effect, the entire applicable Renewal Term. Both parties acknowledge that this payment represents a reasonable estimate of iSee3D’s damages in the event of an early termination. In the event of termination of the PaaS Term for any reason, Client’s access and use of the Platform shall cease immediately, and the provisions of Sections 13, 16, 17 and 18 shall survive.
8. MAINTENANCE WINDOWS
iSee3D and/or its hosting or telecommunications vendor(s) may perform system maintenance during the following “Maintenance Windows”, and iSee3D will announce upgrades and all planned outages in advance.
iSee3D targets to provide 99.2% “availability” to the Platform during the PaaS Term, calculated on a monthly basis. For purposes of these Terms and Conditions, “availability” exists unless the PaaS is not accessible to Client due to (i) a hardware failure of the server at the Hosting Site, or (ii) a connection failure between the server/s hosting the PaaS and the closest Internet router, in to each case excluding Maintenance Windows defined above. Possible bugs, errors or other problems are not relevant to availability and are addressed under Section 11 below.
iSee3D will provide Technical support via e-mail and on-line channel, with an average five (5) support requests per month (excluding requests directly related to the Platform bugs) to Client during the PaaS Term. Technical support services are provided during business days and hours, excluding national holidays of The Netherlands. The first reply is provided within one (1) business day, and resolution of reproducible bugs shall be according to severity categorization below.
iSee3D will categorize support request as follows:
P0 Fatal Platform Issue
Catastrophic failure; Platform aborts, cannot get any functionality from the Service. An example P0 issue: none of the Client’s documents get populated or are not searchable.
Maximum 24-hours for the fix; Corrective action will be started immediately within above defined technical support hours and continued interruptedly as long as initial fix (circumvention) for the failure is ready.
P1 Limited Functionality of the Platform
Significant issue; Platform not delivering intended functionality. An example P1 issue: only some of the Client’s documents get populated or only part of the search results are listed.
Maximum 1 week to fix
P2 Annoying Functionality
Minor Platform issue or Platform exhibits annoying behavior. An example P2 issue: small number of fields in Client’s documents not getting populated and populating those manually is only a minor inconvenience for the users.
To be fixed in next regularly scheduled release
P3 Enhancement Request
Prioritized according to feature requests
May be implemented in a future Platform release
Support outside of these hours is only provided for down or mission critical cases. For example:
Unable to access the platform website
The Client may access iSee3D’s support resources in any of the following ways:
• www: www.isee3d.app
• e-mail: firstname.lastname@example.org
• Tel. +31 (0)162 451 280
iSee3D Support will assist the Client with the following types of issues:
• Problems with or questions about the operation of PaaS or related Services
• Error messages that occur in the context of the PaaS
iSee3D will perform upgrades/releases of the PaaS which are made available through the website automatically. iSee3D will determine and announce upgrades as described in Section 8 of these Terms and Conditions.
12. CLIENT RESPONSIBILITIES
Client is responsible for administering and granting of rights to its users using a specific form in the PaaS. Client is also responsible for ensuring that its users comply with these Terms and Conditions with respect to use of the PaaS and related Services. Client shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to the PaaS hosted at the iSee3D Hosting Site.
iSee3D shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in accessing the Internet to access the Platform.
13. INTELLECTUAL PROPERTY RIGHTS
Client agrees that the PaaS, related User Documentation and related Services are proprietary products and services and that all right, title and interest in and to the PaaS, related User Documentation and related Services, including all associated intellectual property rights, are and shall at all times remain with iSee3D and its third party licensors.
The iSee3D PaaS contain trade secrets and proprietary information owned by iSee3D or its third party licensors and is protected by United States copyright laws and international trade provisions. Client must treat the PaaS software modules like any other copyrighted material and Client may not copy or distribute related software (modules) or the User Documentation, electronically or otherwise, for any purpose.
Client hereby grants to iSee3D a non-exclusive right to use all Client Content as necessary solely for the purposes of provisioning the PaaS and related Services to Client and its authorized users pursuant to these Terms and Conditions. In all usage situations all right, title and interest in and to the Client Content remains with the Client.
14. OTHER RESTRICTIONS
Use of the PaaS is restricted to use by the specific licensing entity only, and only in the context of the Client Content. Client may not use the PaaS for the benefit of any third parties or provide service bureau. Client may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code the PaaS software.
The PaaS and Client Content shall not be used for any commercial purpose beyond the functionality offered by the PaaS. Except as may be permitted in section 5 consistent with iSee3D’s permissions for the PaaS, the Client hereby agrees, represents and warrants to iSee3D that it will not access or use the PaaS for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
15.1 Mutual Warranties
Each party warrants that (i) it has the right and power to enter into these Terms and Conditions, and (ii) it will comply with any applicable laws and regulations pertaining to these Terms and Conditions.
15.2 iSee3D Limited Warranty
iSee3D warrants that the provisioning of the PaaS and related Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards.
If during the Warranty Period the PaaS fails to comply with the Warranties set forth above, iSee3D‘s entire liability and Client’s exclusive remedy will be either a) repair or replacement of the PaaS, or if in I See 3D’s opinion such repair is not possible, then b) termination of the PaaS Term and a refund of the Subscription Fees paid for the PaaS. This limited warranty is void if failure of the PaaS has resulted from accident, abuse, misuse or negligence of any kind in the use, handling or operation of the Platform, including any use not consistent with the User
Documentation or iSee3D training. iSee3D‘s entire liability and Client’s exclusive remedy for any breach of warranty with respect to the Services related to the PaaS as described above shall be iSee3D repeating the Services performed.
Any written or oral information or representations provided by iSee3D agents, employees, resellers, consultants or service providers with respect to the use or operation of the PaaS will in no way increase the scope of iSee3D’s warranty. iSee3D and its suppliers exercise no control whatsoever over the content of the information passing through their systems. Client and users must exercise their own due diligence before distributing and/or relying on information available on the Internet, and must determine that they have all necessary rights to copy, publish, or otherwise distribute such information under copyright and other applicable laws.
iSee3D DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE PLATFORM OR RELATED CLIENT INSTALLABLE SOFTWARE, OR THAT THE PLATFORM OR RELATED CLIENT INSTALLABLE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE PROVISIONING OF THE PLATFORM OR RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE,
ISee3D EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS
OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY
ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY
LAW, AND FURTHER I SEE 3D EXPRESSLY EXCLUDES ANY
WARRANTY OF NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.
16. CONFIDENTIAL INFORMATION
The term “Confidential Information” shall mean: (i) any and all information which is disclosed by either party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of the Services and any proposals or other documents that preceded these Terms and Conditions.
Confidential Information may include, but not be limited to, personal information (individual name, address, contact information), organization, credit card information, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial information, confidential information concerning any of Owner’s past, current or future plans and initiatives, and confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software). 16.2 Treatment of Confidential Information
Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under nondisclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. Client shall protect the deliverables resulting from Services with the same degree of care. These Terms and Conditions impose no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of these Terms and Conditions; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.
16.3 Rights and Duties
The Recipient shall not obtain, by virtue of these Terms and
Conditions, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of the PaaS Term all copies of Confidential Information in any form, including partial copies, have been destroyed, returned, or used solely as the Owner so directs.
Notwithstanding this Section 16 (“Confidentiality”), no prior written approval is required by iSee3D to reference Client as a customer as part of its own sales and marketing activities.
The terms of this Section 16 shall survive termination of the PaaS Term.
17.1 By I See 3D
iSee3D shall indemnify and defend Client against any third party claims that the PaaS made available to Client by iSee3D infringe any copyright during the PaaS Term, provided that iSee3D is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defence or settlement of any claim relating to infringing software, iSee3D shall, in its reasonable judgment and at its option and expense: (i) obtain for Client the right to continue using the PaaS; (ii) replace or modify the PaaS software so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if iSee3D determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the PaaS Term.
iSee3D shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client; (ii) the alleged infringement is the result of a modification made by anyone other than iSee3D; or (iii) Client uses the PaaS other than in accordance with these Terms and Conditions or any documentation delivered by iSee3D. This Section states iSee3D’s entire liability and Client’s sole and exclusive remedy for claims relating to infringement.
17.2 By Client
Client shall indemnify and defend iSee3D against any claims resulting from the use of the Platform, or Services; (i) that any Client Content (including without limitation content provided by Client for inclusion on a donation site) infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (ii) arising from or relating to Client’s or its users’ failure to comply with these Terms and Conditions.
The terms of this Section 17 shall survive termination of the PaaS Term.
18. LIMITATION OF LIABILITY
EXCEPT FOR THE INDEMNIFICATION FOR THIRD PARTY CLAIMS
PROVIDED IN SECTION 17, iSee3D’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS,
REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT,
CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT
EXCEED THE FEES PAID BY CLIENT DURING THE SUBSCRIPTION PERIOD
TO iSee3D OF CLIENT’S LOSS. IN NO EVENT SHALL iSee3D
BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT
LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR
CONTRIBUTIONS, LOSS OF USE, GOOD WILL, BUSINESS
INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NONPECUNIARY LOSS, HOWEVER ARISING, EVEN IF I SEE 3D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
iSee3D SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE
EVENT OF ANY LOSS OR INTERRUPTION IN ACCESS TO THE PAAS
OR RELATED CLIENT INSTALLABLE SOFTWARE DUE TO CAUSES
BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS
LOSS, INTERRUPTION OR FAILURE OF TELECOMMUNICATIONS OR
DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
19. FORCE MAJEURE
Except for Client’s obligation to pay iSee3D, neither party shall be liable for any failure to perform its obligations under these Terms and Conditions if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God, failure of suppliers to perform, fire, floods, storms, epidemic or quarantine restrictions, earthquakes, riots or civil commotion, strikes, war, and restraints of government freight or other embargoes, weather conditions or any failures by iSee3D’s subcontractors or suppliers.
All notices or other communications referenced under these
Terms and Conditions shall be made in writing and sent to “Attention: General Counsel” at iSee3D’s address available in
www.isee3d.app to Client’s address set forth in when Subscribing to the Service. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail.
21. GOVERNING LAW; ARBITRATION
These Terms and Conditions shall be governed by the laws of the Netherlands. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Arbitration Institute of the Netherlands Chamber of Commerce. Any decision in arbitration shall be final and binding upon the parties. Notwithstanding the above, iSee3D may sue in any court for infringement of its proprietary or intellectual property rights.
Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. If any provision of these Terms and Conditions are held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of these Terms and Conditions will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. These Terms and Conditions set forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby.