These iSee3D Software as a Service ("Saas") Terms and Conditions ("Terms and Conditions") are related to Saas 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 Saas 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 Saas 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 "Saas 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 "Saas"
means iSee3D Software as a Service offering that is based on iSee3D's Software 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 Saas using a web browser or API.
1.6 "User Documentation"
means iSee3D user documentation relating to the Saas.
iSee3D grants to Client, and Client accepts, a non-transferable, non-exclusive license and right to access the Saas via the Internet and use the Saas and the User Documentation only as authorized in these Terms and Conditions, for the purpose of enabling its business operations during the Saas Term. The Saas 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 Saas available for Client's use during the Saas Term on Client's web browser that meet the iSee3D Recommendations for accessing the Saas that Client acknowledges it has reviewed. iSee3D will provide Client with secure access to the latest supported version of the Saas via the Internet from the hosting facility iSee3D has chosen to use for the Service (the "Hosting Site") on a 24x7 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 Saas on behalf of the Client accessing Client Content, accessing or using the Saas have to have valid license.
By accessing and using the Saas through the Service provisioned,
In order to access and use the Saas, Client shall pay a "Subscription Fee" communicated to the Client on monthly basis during the Saas 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.
The Saas Term will commence when iSee3D makes the Saas available to the Client via the Internet as contemplated by Section 2 ("Web-based license") above. The Saas 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 Saas 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.
Notwithstanding Section 7.1, either Client or iSee3D may terminate the Saas 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.
Either party may terminate this contract at any time by providing one (1) month written notice to the other party. The termination will be effective at the end of the notice period.
In the event the Saas 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 Saas 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.
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 will use commercially reasonable efforts to make the Saas available to Client during the Saas Term. However, iSee3D makes no guarantees or warranties regarding uptime, availability, or accessibility of the Saas. Client acknowledges that the Saas may experience interruptions, downtime, or other technical issues, and iSee3D shall have no liability for any such interruptions or failures.
iSee3D will provide technical support via e-mail and on-line channel to Client during the Saas Term on a best-effort basis. Technical support services are provided during business days and hours, excluding national holidays of The Netherlands. iSee3D will make reasonable efforts to respond to support requests but makes no guarantees regarding response times or resolution timeframes.
The Client may access iSee3D's support resources in any of the following ways:
iSee3D Support will assist the Client with the following types of issues:
iSee3D will perform upgrades/releases of the Saas which are made available through the website automatically. iSee3D will determine and announce upgrades as described in Section 8 of these Terms and Conditions.
Client is responsible for administering and granting of rights to its users using a specific form in the Saas. Client is also responsible for ensuring that its users comply with these Terms and Conditions with respect to use of the Saas and related Services. Client shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to the Saas 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.
Client agrees that the Saas, related User Documentation and related Services are proprietary products and services and that all right, title and interest in and to the Saas, 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 Saas 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 Saas 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 Saas 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.
Use of the Saas is restricted to use by the specific licensing entity only, and only in the context of the Client Content. Client may not use the Saas 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 Saas software.
The Saas and Client Content shall not be used for any commercial purpose beyond the functionality offered by the Saas. Except as may be permitted in section 5 consistent with iSee3D's permissions for the Saas, the Client hereby agrees, represents and warrants to iSee3D that it will not access or use the Saas for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
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.
iSee3D warrants that the provisioning of the Saas and related Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards.
If during the Warranty Period the Saas 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 Saas, or if in iSee3D's opinion such repair is not possible, then b) termination of the Saas Term and a refund of the Subscription Fees paid for the Saas. This limited warranty is void if failure of the Saas 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 Saas 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 Saas 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 extend permitted by law. Furthermore, iSee3D expressly excludes any warranty of noninfringement, title, fitness for a particular purpose, or merchantability to the extent permitted by law.
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.
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.
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 Saas 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 Saas Term.
iSee3D shall indemnify and defend Client against any third party claims that the Saas made available to Client by iSee3D infringe any copyright during the Saas 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.
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 Saas Term.
Client expressly acknowledges that the use of the Saas and any custom adaptations is at Client's sole risk. iSee3D provides the Saas on an "as is" and "as available" basis without any warranties or guarantees of performance, uptime, or financial outcomes.
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 the 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 non pecuniary loss. Even if iSee3D has been advised of the possibility of such damages.
Client acknowledges and agrees that iSee3D shall not be liable for any financial losses, damages, or consequences arising from:
This disclaimer applies regardless of whether such financial consequences were foreseeable or whether iSee3D has been advised of the possibility of such losses.
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.
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.