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| Welcome to 3DXplorer® . |
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Welcome to 3DXplorer® .
This
Terms of Service Agreement ("this Agreement") sets forth the terms
governing your use of 3DXplorer® (“license”) including the 3DXplorer®
technology ( composed of the online application software (“online
service”) and the downloadable player application software
(“player”) ) and related content, collectively called "3DXplorer®",
available through or in connection with the 3DXplorer® web site ("Web
Site"). This Agreement is a legal contract between ALTADYN Corp.
a Delaware Corporation with offices in 7545 Irvine Center Dr , Irvine
Business Center, Suite 200, Irvine, CA 92618 USA (referred
to in this Agreement as "Provider") and you (referred to in this
Agreement as "you" or "subscriber" or "member") and your principals as
described below. 3DXplorer® may be used only by persons who
accept the terms of this Agreement. If you do not intend to
accept the terms of this Agreement, you should refrain from using
3DXplorer® in any manner.
Subscribing to or using 3DXplorer®
constitutes acceptance of the terms of this Agreement by you and by
parties on whose behalf or for whose benefit you are acting
("Principals"). You represent and warrant that you have read this
Agreement, that you are 18 years of age or older, and that you are
authorized to enter into this Agreement and bind your Principals to the
terms of this Agreement. Unless otherwise specified, references
to "you" or "subscriber" or "member" in this Agreement shall be
construed to also refer to your Principals. If you do not wish to
accept this Agreement, you should not subscribe to or use
3DXplorer®. By accepting this Agreement, you agree to use
3DXplorer® in accordance with, and otherwise comply with, the terms of
this Agreement and acknowledge that this Agreement provides for various
limitations as set forth below.
1. Use of 3DXplorer® Technology and Services
a)
License for “online service”. Subscribing to 3DXplorer® provides each
registered subscriber ("Member") with access to a package of certain
software technology and content ("3DXplorer® Software and Service(s)").
Members may use the 3DXplorer® software, tools and other technology
("3DXplorer® Software") and content ("3DXplorer® Content") to build
their 3D Internet presence ("Member Site"). Each Member Site will be a
part of the 3DXplorer® network of Internet sites ("3DXplorer®
Network"). Provider hereby grants you a non-exclusive,
non-transferable, worldwide right to use the Service, solely for your
own purposes, subject to the terms and conditions of this Agreement.
All rights not expressly granted to you are reserved by provider and
its licensors. You understand and agree that Provider may, in its sole
discretion, modify 3DXplorer® as described further in Section 4 below.
b)
License for “player”. Your member site requires the use of the
3DXplorer player for full functional navigation. Provider hereby grants
you a non-exclusive, non transferrable, worldwide right to use the
player subject to the terms and conditions of this agreement, and to
distribute the player to your online visitors, in the limit of the
authorized number of licenses as per your selected membership plan. You
acknowledge that the distribution of the player takes place by
inserting the HTML code for calling the player in your web page.
You
agree to make best efforts in order to protect provider’s intellectual
property and avoiding circumvention of the player including reverse
compiling, reverse engineering, or otherwise modification or derivative
works based upon the player.
c) 3DXplorer®
Standard Services and Upgrades. Subject to the terms of this
Agreement, you will be able to use the 3DXplorer® Technology to build
and maintain your Member Site. The 3DXplorer® Standard
Service allows your use of certain tools to perform certain
functions. Provider reserves the right to modify the 3DXplorer®
Standard Service in its sole discretion as described further in Section
4 below. Provider may offer other services, including additional
tools, which are not part of the 3DXplorer® Standard Service, including
"upgrade" services for which a separate fee will apply.
2. Restricted Use and Conduct
a)
Illegal Conduct. You agree not to violate (or allow others to
violate) any applicable laws in connection with using 3DXplorer® or
otherwise. You are responsible for ascertaining the requirements
of applicable laws and complying with such laws. Examples of
illegal conduct include the following: (i) posting any content
that is illegal in the location at which the content is posted or
received; (ii) infringing or otherwise violating any copyright,
trademark, trade secret, patent or other intellectual property right of
any third-party; (iii) making, posting or distributing statements that
are libelous or defamatory; (iv) invading the privacy of third-parties
or otherwise failing to comply with applicable privacy laws; (v)
promoting, soliciting or otherwise participating in illegal pyramid
schemes or illegal sweepstakes, raffles, lotteries, contests or
gambling activities; (vi) promoting, selling or otherwise providing
illegal goods or services; (vii) promoting, selling or otherwise
providing pirated computer programs or pirated music; (viii) promoting,
selling or otherwise providing illegal drugs or illegal drug
paraphernalia; (ix) promoting or making illegal sales of alcohol,
firearms or other weapons; (x) promoting, selling or otherwise
providing sexually-oriented goods or services that are obscene or
otherwise illegal; (xi) promoting, selling or otherwise providing
worms, Trojan horses, computer viruses or other harmful code or
devices, or using or distributing programs designed to "nuke" or
otherwise create attacks against a third-party web site, Internet
service provider or other person; (xii) advocating, promoting or
otherwise encouraging or assisting violent activities or activities
that cause physical harm.
b) Industrial
Espionage. You may not access the Service if you are a direct
competitor of provider, except with provider's prior written consent.
In addition, you may not access the Service for purposes of monitoring
its availability, performance or functionality, or for any other
benchmarking or competitive purposes.
c)
Offensive Conduct. You agree not to engage (or allow others to
engage) in any offensive conduct in connection with using 3DXplorer® or
otherwise. Offensive conduct includes conduct that is
inconsistent with local community standards or that reflects negatively
on 3DXplorer®, the 3DXplorer® Network, Provider or its
affiliates. Examples of offensive conduct include the
following: (i) posting, promoting, selling or otherwise providing
lewd, lascivious or sexually explicit materials, goods or services;
(ii) posting, promoting, selling or otherwise providing materials,
goods or services that contain blatant expressions of bigotry,
prejudice, racism, hatred or excessive profanity; (iii) posting
harassive materials or otherwise engaging in harassive conduct; (iv)
posting material or otherwise engaging in conduct that ridicules,
disparages or otherwise discredits 3DXplorer®, the 3DXplorer® Network,
Provider or its affiliates.
d) Dangerous
Activities. You agree not to engage (or allow others to engage)
in any activities in connection with using 3DXplorer® that involve a
significant risk of serious injury or damage to persons, property,
environment or business.
e)
Circumvention. You agree not to (and agree not to allow others
to) (i) attempt to derive the underlying source code, structure or
sequence of the 3DXplorer® Technology by reverse engineering, reverse
compiling or otherwise modify or make derivative works based upon the
Service (ii) reverse engineer or access the Service 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.
(iii) attempt to ascertain or use individual passwords of Member Sites;
(iv) delete or alter author attributes, copyright or other proprietary
notices, or similar information associated with 3DXplorer®; (v) fail to
obtain all required permissions when using 3DXplorer® to receive,
upload, download, display, use, distribute, or execute programs or
perform other works protected by intellectual property laws, including
copyright, trademark, trade secret and patent laws.
f)
Determination of Violation. Provider shall have the right to
determine in its sole discretion whether the requirements of this
Section or other terms of this Agreement are being violated and to take
such actions as Provider deems necessary or appropriate to remedy such
violation including restriction or termination of access to 3DXplorer®
pursuant to Section 7 of this Agreement. However, Provider
assumes no obligation to make any such determination or take any
particular actions.
g) Unauthorized access.
You shall not attempt to gain unauthorized access to the Service or its
related systems or networks. The number of player calls you can make
per account is limited per your membership plan; you shall not call the
player more than the authorized number in your plan or attempt to find
ways to call the player more than the authorized number in your plan.
3. Fees and Payment Terms
a)
Fees and Payment. Provider charges for fees and collects them in
advance for use of the Service. The 3DXplorer® Standard Service fees
and other applicable fees and payment terms are set forth in the
Membership plans ("Membership plans") posted on the Web Site.
Provider reserves the right in its sole discretion and as it deems
appropriate to change its fees and add, remove or otherwise modify the
services it offers in accordance with Section 4 of this
Agreement. You agree to prepay such fees as provided in such
Membership plans and pursuant to this Agreement. You acknowledge that
all amounts paid are nonrefundable. Provider uses 3rd party banking
services such as Paypal® or Google checkout or other third party
services to receive your payment. In the future, 3DXplorer® may require
that you provide your credit card information (or other payment
instrument accepted by Provider) for payment, where charges that you
incur will be charged to the credit card number (or other acceptable
payment instrument) that you provide. If Provider does not
receive payment or pre-payment, and that for any reason, you agree to
pay Provider all amounts due on demand plus interest and expenses as
provided in Section 3(d) below. You hereby authorize Provider to take
all necessary actions to obtain payment. You understand and agree that
if Provider does not receive timely payment of all amounts due, your
use of 3DXplorer® may be restricted or terminated as further described
in Section 7 of this Agreement. Late payment is also subject to
late charges as may be set forth in the Membership plans. Any
Member that without justification disputes charges for hosting or
related services directly with a credit card issuer or other
third-party resulting in a "chargeback" or "stop payment" or other form
of payment reversal will be subject to immediate termination pursuant
to Section 7 of this Agreement. If a Member wishes to continue service
subsequent to undergoing a restriction in service or termination
resulting from a payment reversal, reinstatement will be subject to
corresponding fees.
b) Insufficiency in a
membership plan. Waiver of Liability. You agree to purchase a
membership plan with sufficient player licenses, so that all your
visitors will be able to use the player on your member site. You
acknowledge that in case of insufficiency, your visitors’ access to the
player will be denied by provider and an explicit message will inform
your visitors about the reason of the denial of access. In addition to
the limitations of liability set forth in Sections 4c, 11 and 12, you
agree that Provider shall not be liable for any damage, whether
foreseeable, unforeseeable, direct, indirect, consequential or
otherwise, that may result from denial of access to the player or to a
specific section of your Member Site as described
above.
c) Unauthorized
Use. You agree to notify Provider immediately if you suspect
unauthorized use of 3DXplorer® online service, your password, or if you
suspect any other unauthorized activity. Similarly, You agree to notify
Provider immediately if you suspect unauthorized use of 3DXplorer®
player, available through your account and targeted to use by your
visitors.
d) Taxes. You agree to be
responsible for and pay any taxes, including personal property taxes or
sales taxes, use taxes, value added taxes or similar taxes, applicable
to your purchases from Provider or otherwise resulting from your use of
3DXplorer®.
e) Collection Costs. You
agree to pay to Provider on demand all attorney and collection fees,
court costs and other expenses arising from any effort of Provider to
collect any amounts due from you. You further agree that all such
amounts shall bear interest at a rate of 1.5% per month or partial
month overdue, or the highest interest rate permitted by applicable law
if such rate is lower than 1.5% per month.
f)
Billing Questions. Any questions or disputes regarding billing
should be directed to 3DXplorer® Support by email at the following
address: support@3dxplorer.com.
4. Modification of Web Site, 3DXplorer® and 3DXplorer® Terms; Availability
a)
Modification of Web Site and 3DXplorer®. Provider may at any time
and from time to time modify or discontinue any or all parts of this
Web Site and 3DXplorer®, including 3DXplorer® Technology and Content
and any feature thereof. Except for the addition of new tools and
other services, Provider will endeavor to give notice before any
modification of 3DXplorer® that materially affects your Member Site.
Provider may, in its sole discretion, provide notice by posting the
modification on the Web Site, by sending you an email, by putting a
popup notice on your screen when you access 3DXplorer®, by sending you
a letter, or otherwise. If you are dissatisfied with any change, you
have the right to terminate your subscription pursuant to Section 7
which shall be your exclusive remedy. Your use of 3DXplorer®, after the
effective date of a modification, constitutes your acceptance of the
modification.
b) Modification of
Terms. Provider may at any time and from time to time modify the
terms of this Agreement including the terms relating to applicable
fees. Provider will give notice of such modifications by posting
changes to this Agreement on this Web Site. Provider will
announce changes to its fees and charges by posting them on the web
site under Membership plans. Provider may, in its sole
discretion, supplement such notice by sending you an email, by putting
a popup notice on your screen when you access 3DXplorer®, by sending
you a letter, or otherwise. If you are dissatisfied with any change,
you have the right to terminate your subscription pursuant to Section 7
which shall be your exclusive remedy. You agree to review this
Agreement from time to time and comply with any changes. Your use
of 3DXplorer® after the effective date of a modification to this
Agreement, including a change in the applicable fees, constitutes your
continued acceptance of the terms of this Agreement as modified.
This Agreement may also be amended in an express written amendment
signed by the parties to which the amendment applies. No
provision of this Agreement may be otherwise modified except as
provided in this Section.
c)
Limitation of Availability. The availability of this Web Site and
3DXplorer® is subject to periodic downtime for maintenance and is
further subject to interruption due to failure of telecommunication
links and Internet infrastructure and other causes beyond Provider's
control. You acknowledge and agree that Provider shall not be
responsible for any interruptions of the availability of this Web Site
or 3DXplorer®. If you are dissatisfied with the availability of
this Web Site or 3DXplorer®, you have the right to terminate your
subscription pursuant to Section 7 which shall be your exclusive
remedy.
5. Privacy and Security; Third-Party Vendors
(a)
Privacy Policy. Treatment of any personal information collected
by Provider is described in Provider's “Privacy Policy”, posted on the
Web Site. Provider reserves the right to modify its privacy and
security policies in its reasonable discretion from time to time. If
you become a paying customer of the Service, you agree that provider
can disclose the fact that you are a paying customer and the website
where you are using it.
For French users: In compliance with the
French Law 78-17 of January 6th , 1978, known as “Informatique et
Libertés”, modified in August 2004, you have the right to access,
modify, and delete your personal data at any time. To exercise this
right you may write to support@3DXplorer.com. Provider’s operations in
regards to personal data and the above mentioned law, have been
declared to the CNIL (French commission for information and civil
liberties), under declaration number: 1258989 during October 2007.
(b)
Security. 3DXplorer® uses reasonable means to protect your data.
Nevertheless, Provider cannot guarantee the security of any information
provided by or on behalf of you, and Provider shall not be responsible
for a compromise of your information as further described in Section
11. You are responsible for maintaining the security of any
passwords or other access keys provided to you.
(c) Provider uses
third party banking services, such as Paypal or Google checkout or
other third party services, when accepting your credit card information
for payment. Provider makes the information about the identity of the
used banking service providers in a visible manner, at the time of
payment, so that you can check if you agree to use their services. You
acknowledge and agree that you enter in a relationship with the third
party banking service for the sake of the transmission of personal and
financial information and that the provider is not responsible for any
matter in regards with the security of your credit card data or such
personal and financial information as provider has no access to the
credit card information or such personal and financial information.
(d)
Third-Party Vendors. Various third-party providers of goods and
services may be involved in providing or supporting aspects of
3DXplorer®, and Provider may promote or provide information about
third-party providers of goods and services and/or provide links to
third-party web sites or resources. The owners and affiliates of
such providers are sometimes referred to in this agreement as
"Third-Party Vendors". Such promotion, information and links
shall not be construed as approval or endorsement of such vendors or
their web sites. You acknowledge and agree that provider is not
responsible or otherwise liable for any advertising, content, services,
goods or other materials available from such Third-Party Vendors or
their sites. If you deal with such vendors or visit such sites,
you understand that you are subject to any applicable rules and
policies of such Third-Party Vendors including any applicable terms of
use agreements or privacy policies of such Third-Party Vendors.
Third-Party Vendors have no authority to act on behalf of or bind
Provider or Provider Affiliates, and neither Provider nor Provider
Affiliates are responsible for the actions of Third-Party
Vendors. You shall be responsible for taking such steps as you
deem appropriate to evaluate Third-Party Vendors and their goods and
services. Provider shall not be construed to be a party to any
transactions that may be entered into between you and Third-Party
Vendors.
6. Changes to Member Site
(a)
Requested Member Site Changes. You authorize Provider to make
changes to your Member Site to address issues that you bring to the
attention of Provider through Customer Support, email or otherwise, as
determined by Provider to be appropriate in its discretion.
(b)
Member Site Changes by Provider. Provider reserves the right (but
assumes no obligation) to make changes to your Member Site or to
require you to make changes to your Member Site as determined by
Provider to be necessary to prevent a breach of this Agreement or avoid
a violation of other applicable restrictions. For example,
Provider may have to make changes to your Member Site to avoid
violations of third-party rights that Provider receives notice of
pursuant to the third-party complaint and notice policy described in
Section 9 of this Agreement. Provider shall endeavor to first
request that you make the changes or to give you notice of changes made
by Provider but you acknowledge that Provider may not first request
that you make the changes and may not give advance notice of changes
made by Provider.
(c) Notice of
Independent Operation. You agree to post the following statement,
or a similar statement with exactly the same meaning, on your Member
Site: "This web site is independently owned and operated by
[insert name of owner]." You further agree that Provider may
post, or require you to post, other statements or notices on your
Member Site as determined by Provider to be necessary or appropriate to
clarify the relationship between Provider and Member or to otherwise
protect the rights of Provider and of third-parties.
(d)
Waiver of Liability; Provider's Decisions Binding. In addition to
the limitations of liability set forth in Sections 11 and 12, you agree
that Provider shall not be liable for any damage, whether foreseeable,
unforeseeable, direct, indirect, consequential or otherwise, that may
result from changes made to your Member Site as described
herein. Provider's decisions under this Agreement with
respect to the need to make changes to your Web Site and other matters
shall be final and binding.
7. Duration
This
Agreement starts on the Date you subscribe to the service and become a
member. The term is indefinite unless an initial term is explicitly
specified in the membership plans or in a custom quote from provider.
In this case, the Initial Term will be as you elect during the online
subscription process or as otherwise mutually agreed upon in an Order
Form, commencing on the date you agree to pay for the Service by
completing the online subscription form, or on the start date of the
Order Form. Upon the expiration of the Initial Term, this Agreement
will automatically renew for successive renewal terms equal in duration
to the Initial Term (or one year, if the Initial Term is greater than
one year) at provider’s then current fees. Either party may terminate
this Agreement or reduce the number of licenses, effective only upon
the expiration of the then current License Term, by notifying the other
party in writing at least thirty (30) days prior to the start date of
the following term.
8. Restriction and Termination of Subscription
(a) Restriction and Termination of Subscription by Provider.
(i)
Restriction and Termination for Cause. Provider may at any time, with
or without notice to you, restrict or terminate your use of 3DXplorer®
in whole or in part if Provider determines in its sole discretion that
(i) restricting or terminating your use of 3DXplorer® is necessary for
security reasons or for proper continued operation of 3DXplorer®; or
(ii) your use of 3DXplorer® is not for legitimate purposes; or (iii)
your use of 3DXplorer® violates any laws; or (iv) your use of
3DXplorer® violates any third-party rights; or (v) you have otherwise
breached this Agreement or any other obligations to Provider or its
Affiliates. In the event that your use of 3DXplorer® is
restricted and the restrictions are not satisfactory to you, your sole
remedy shall be to terminate your subscription pursuant to Section 7(b)
below.
(ii) Restriction and Termination for
Convenience. Provider may at any time with reasonable notice to
you, restrict or terminate your use of 3DXplorer® in whole or in part
for Provider's convenience. Thirty (30) days notice shall be
deemed to be reasonable notice. In the event that your use of
3DXplorer® is restricted and the restrictions are not satisfactory to
you, your sole remedy shall be to terminate your subscription pursuant
to Section 7(b) below.
(iii) Restriction and
Termination Due To Payment Problems. Provider may at any time,
with or without notice to you, restrict or terminate your use of
3DXplorer® in whole or in part, if you fail to make payments due to
Provider hereunder. In the event that your use of 3DXplorer® is
restricted and the restrictions are not satisfactory to you, your sole
remedy shall be to terminate your subscription pursuant to Section 7(b)
below.
(iv) Obligations Upon Termination by
Provider. If Provider terminates your subscription to 3DXplorer®,
you will remain liable for the full charges applicable to the period
during which Provider terminates your subscription, including all
usage-based fees through the end of such period, and will also remain
responsible for any other obligations incurred by you prior to
termination. Following such termination, you agree not to re-register
for or otherwise access 3DXplorer® without Provider's prior written
approval.
(b) Termination by You. You may terminate your
subscription for any reason at any time. In this case no remaining
credit will be returned to you.
(c) General Effect of Termination.
In the event of termination of your subscription by you or Provider,
all rights to use 3DXplorer® and related rights including all rights
provided to you under this Agreement (and all corresponding Provider
obligations) shall terminate immediately but all other provisions of
this Agreement, including the limitations on Provider liability and
indemnification provisions, shall continue after termination. You shall
remain responsible for all obligations incurred by you prior to
termination. Upon termination, Provider reserves the right to
delete any and all data files related to you or otherwise associated
with your use of 3DXplorer®, including your content and related
information.
9. Indemnification
You
agree to indemnify and defend Provider and Provider Affiliates (as
defined below in Section 12) upon demand, and hold Provider and
Provider Affiliates harmless, against any and all claims, demands,
liabilities, cost, and expenses, including reasonable attorney's fees,
collection fees and court costs, related to or arising from: (i) your
use of 3DXplorer®; or (ii) infringement of any copyright, trademark,
trade secret, patent or other intellectual property or third-party
right by you; or (iii) any failure by you to comply with applicable
laws or restrictions; or (iv) any other breach of this Agreement by you
or your agents or other affiliates.
10. Reporting Violations of Third-Party Rights
Provider
assumes no obligation to monitor the content or activities of Member
Sites or Members but Provider may decide in its discretion to
investigate complaints of a violation of intellectual property or other
third-party rights brought to the attention of Provider pursuant to the
third‑party complaint and notice policy posted on this Web Site.
Complaints must be accompanied with sufficient substantiation of the
alleged violation as described in such policy. If you believe that any
content or other aspects of this Web Site or sites hosted by Provider
violate the rights of others, you should provide notice to Provider in
accordance with such policy.
11. Proprietary Rights
(a)
Technology and Content. You acknowledge and agree that Provider
and its licensors own all rights, title and interest in 3DXplorer®
including the 3DXplorer® Technology. You further acknowledge and
agree that, except for content supplied by you, Provider and its
licensors own all rights, title and interest in all 3D models, 3D
objects, 2D data, text, music, sound, photographs, video,
graphics and other 3DXplorer® Content on 3DXplorer®. In addition, you
acknowledge and agree that the 3DXplorer® Content and 3DXplorer®
Technology and related items are protected by French, U.S. and
international copyright, trademark, trade secret and/or patent laws, or
other proprietary rights and laws, and that you are only permitted to
use the 3DXplorer® Content and 3DXplorer® Technology as expressly
authorized by Provider. You also understand and agree that the
compilation, collection, selection, arrangement, assembly and
coordination of 3DXplorer® Content is the exclusive property of
Provider and its licensors and protected by French, U.S. and
international copyright laws. Except as expressly authorized by
Provider in writing, and except for the implicit distribution of the
3DXplorer player to your visitors, you agree not to make, use, sell,
copy, reproduce, distribute, transmit, modify or create derivative
works from the 3DXplorer® Content or 3DXplorer® Technology.
(b)
Trademarks. Provider owns certain trademark rights, including
rights in federally registered trademarks, graphics and logos used by
Provider in connection with 3DXplorer® to identify the goods and
services of Provider (collectively the "3DXplorer® Trademarks"). You
agree not to use the 3DXplorer® Trademarks in any manner unless
expressly authorized by Provider in writing. All other trademarks
(including third-party product names) used in connection with
3DXplorer® are the property of their respective owners and you agree
not to use such trademarks without the express authorization of such
parties.
12. EXCLUSIVE MEMBER REMEDY; LIMITED WARRANTY; WARRANTY DISCLAIMERS
IN
THE EVENT OF ANY BREACH OF THIS AGREEMENT BY PROVIDER, OR IF YOU ARE
DISSATISFIED IN ANY WAY WITH PROVIDER OR ANY RELATED GOODS OR SERVICES,
YOUR SOLE REMEDY SHALL BE TO TERMINATE YOUR SUBSCRIPTION AS PROVIDED IN
SECTION 7 OF THIS AGREEMENT.
PROVIDER AND ALL RELATED GOODS AND
SERVICES, INCLUDING RELATED CONTENT AND TECHNOLOGY, ARE PROVIDED "AS
IS" WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. NEITHER
PROVIDER NOR PROVIDER AFFILIATES (DEFINED BELOW) MAKE ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO PROVIDER OR
ANY RELATED GOODS AND SERVICES. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ALL EXPRESS AND IMPLIED REPRESENTATIONS AND
WARRANTIES WITH RESPECT TO PROVIDER AND ANY RELATED GOODS AND SERVICES
ARE HEREBY DISCLAIMED INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NONINTERFERENCE WITH ENJOYMENT AND
USE, AND NONINFRINGEMENT. BY WAY OF ILLUSTRATION WITHOUT
LIMITATION, NO WARRANTY IS GIVEN THAT PROVIDER WILL FULFILL ANY OF
MEMBER'S PARTICULAR REQUIREMENTS, THAT PROVIDER IS ERROR FREE, THAT
ACCESS TO PROVIDER WILL BE UNINTERRUPTED, OR THAT ANY INFORMATION
PROVIDED IN CONNECTION WITH PROVIDER IS ACCURATE. MEMBER ASSUMES
ALL RISK OF USING PROVIDER, INCLUDING ALL RISK FOR ANY INJURY OR OTHER
DAMAGE RESULTING FROM MEMBER'S ACTIVITIES.
WITHOUT LIMITING THE
FOREGOING, PROVIDER DOES NOT GUARANTEE THAT ITS SECURITY PROCEDURES
WILL PREVENT THE LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO MEMBER
INFORMATION. MEMBER AGREES THAT PROVIDER AND PROVIDER AFFILIATES
ARE NOT RESPONSIBLE FOR ANY COMPROMISE OF MEMBER INFORMATION.
PROVIDER
IS NOT RESPONSIBLE FOR THE CONTENT OF ANY MEMBER SITE, AND DOES NOT
VERIFY, ENDORSE OR OTHERWISE VOUCH FOR THE CONTENT OF ANY MEMBER
SITE. FURTHER, PROVIDER IS NOT RESPONSIBLE FOR THE DELIVERY,
QUALITY OR OTHER ASPECTS OF ANY GOODS OR SERVICES PROMOTED, SOLD OR
OTHERWISE PROVIDED BY MEMBERS OR AFFILIATES OF MEMBERS THROUGH MEMBER
SITES OR OTHERWISE. MEMBERS ARE SOLELY RESPONSIBLE FOR THEIR
CONTENT AND ACTIVITIES. MEMBERS MAY BE HELD LEGALLY RESPONSIBLE
IF THEIR MEMBER SITE INCLUDES ILLEGAL CONTENT OR IF MEMBERS OTHERWISE
VIOLATE APPLICABLE LAWS.
13. Limitation on Liability
MEMBER
ACKNOWLEDGES AND AGREES THAT MEMBER'S SOLE REMEDY IS THE RIGHT TO
TERMINATE MEMBER'S SUBSCRIPTION AS SET FORTH ABOVE. MEMBER
FURTHER UNDERSTANDS AND AGREES THAT NEITHER PROVIDER NOR ANY PROVIDER
AFFILIATES (AS DEFINED BELOW) SHALL HAVE ANY LIABILITY FOR ANY DAMAGES,
WHETHER GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, WHETHER OR
NOT FORESEEABLE AND WHETHER BASED ON CONTRACT, TORT OR STATUTE.
MEMBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT PROVIDER IS PROVIDING
RELATED GOODS AND SERVICES IN RELIANCE ON THE DISCLAIMERS AND
LIMITATIONS SET FORTH IN THIS AGREEMENT, AND FURTHER ACKNOWLEDGES AND
AGREES THAT SUCH DISCLAIMERS AND LIMITATIONS ARE REASONABLE. AS
USED IN THIS AGREEMENT, "PROVIDER AFFILIATES" MEANS RELATED COMPANIES
OF PROVIDER (INCLUDING COMPANIES THAT CONTROL PROVIDER, THAT ARE
CONTROLLED BY PROVIDER, OR THAT ARE UNDER COMMON CONTROL WITH
PROVIDER), DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, OTHER AGENTS,
CONTRACTORS AND LICENSORS OF PROVIDER AND ITS RELATED COMPANIES, AND
ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING PROVIDER.
BY
WAY OF ILLUSTRATION WITHOUT LIMITATING THE FOREOING, MEMBER AGREES THAT
NEITHER PROVIDER NOR ANY PROVIDER AFFILIATES SHALL BE LIABLE TO MEMBER
IN ANY MANNER WHATSOEVER FOR (I) ANY DAMAGES RESULTING FROM ANY CAUSE
BEYOND PROVIDER'S REASONABLE CONTROL; (II) ANY DAMAGES RESULTING FROM A
MEMBER'S FAILURE TO COMPLY WITH THIS AGREEMENT; (III) ANY DAMAGES
RESULTING FROM ANY INACCURACY IN ANY INFORMATION PROVIDED THROUGH
PROVIDER; (IV) ANY LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES; (V) PUNITIVE DAMAGES; (VI) ANY DAMAGE INCURRED IN
CONNECTION WITH DEALING WITH THIRD-PARTY VENDORS OR THEIR CONTENT,
GOODS OR SERVICES OR THEIR SITES.
IN THE EVENT ANY LIMITATION ON
LIABILITY IS HELD TO BE UNENFORCEABLE, THE AGGREGATE LIABILITY OF
PROVIDER AND PROVIDER AFFILIATES ARISING FROM OR RELATING TO THIS
AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) SHALL IN NO EVENT
EXCEED ANY AMOUNTS MEMBER HAS PAID TO PROVIDER DURING THE THEN-PREVIOUS
TWELVE (12) MONTH PERIOD FOR ANY PROVIDER SERVICE.
THE LIMITATIONS
IN THIS AGREEMENT APPLY TO ALL CLAIMS REGARDLESS OF THE CAUSE OF ACTION
UNDERLYING THE CLAIM, INCLUDING BREACH OF CONTRACT (EVEN IF IN THE
NATURE OF A BREACH OR FAILURE OF A FUNDAMENTAL TERM) OR TORT INCLUDING
NEGLIGENCE, STRICT LIABILITY, FRAUD OR MISREPRESENTATION.
WHETHER
OR NOT EXPRESSLY STATED IN THIS AGREEMENT, MEMBER ACKNOWLEDGES AND
AGREES THAT ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY APPLICABLE TO
PROVIDER UNDER THIS AGREEMENT ALSO APPLY EQUALLY TO PROVIDER AFFILIATES
AS DEFINED ABOVE.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN
LIMITATIONS OF LIABILITY. IN THOSE JURISDICTIONS PROVIDER'S
LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY
LAW. MEMBER RIGHTS MAY OTHERWISE VARY FROM JURISDICTION TO
JURISDICTION.
14. Miscellaneous
(a)
Applicable Law and Forum; Attorneys Fees. With respect to U.S.
Customers, this Agreement shall be governed by California law and
controlling United States federal law, without regard to the choice or
conflicts of law provisions of any jurisdiction, and any disputes,
actions, claims or causes of action arising out of or in connection
with this Agreement or the Service shall be subject to the exclusive
jurisdiction of the state and federal courts located in Orange County,
California. With respect to Non-U.S. Customers, this Agreement shall be
governed by the laws of France, without regard to the choice or
conflicts of law provisions of any jurisdiction, and any disputes,
actions, claims or causes of action arising out of or in connection
with this Agreement or the Service shall be subject to the exclusive
jurisdiction of the commercial court of Paris, France. In the
event Provider is required to incur any attorneys fees, courts costs or
other expenses in connection with litigating its right under this
Agreement with respect to you, you shall reimburse Provider for such
expenses upon demand.
(b) Assignment; Change in Control.
This
Agreement may not be assigned by you without the prior written approval
of provider but may be assigned without your consent by provider 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 provider
directly or indirectly owning or controlling 50% or more of you shall
entitle provider to terminate this Agreement for cause immediately upon
written notice.
(c)
Severability. In the event that any provision of this Agreement
is held to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect, and the provision held to be
invalid or unenforceable shall be automatically amended to most closely
approximate the original provision on terms that are valid and
enforceable and the adjudicating authority holding such provision
invalid or unenforceable shall make such amendment accordingly.
Any provision held to be invalid or unenforceable in any particular
jurisdiction shall not, as a result, be considered invalid or
unenforceable in any other jurisdiction.
(d)
Notices. All notices to you may be given by any reasonable means
including email, conventional mail, facsimile, by posting such notices
on the 3DXplorer® Web Site, or by broadcasting notices or messages
through 3DXplorer®. All notices to Provider must be by email
directed to the following address: support@3DXplorer.com and must
include a descriptive title in the subject line giving Provider
adequate notice of the contents of the email.
(e)
Non-Waiver. Provider shall not be deemed to have waived any
right or provision of this Agreement unless a waiver is expressly
acknowledged and agreed to by Provider in a signed writing.
Provider's delay in exercising or enforcing any right or provision of
this Agreement shall not be construed to constitute a waiver of such
right or provision.
(f) Entire
Agreement. This Agreement and related documents comprise the
entire agreement between you and Provider relating to its subject
matter and supersede any and all prior understandings or
representations between the parties regarding the subject matter
hereof. This Agreement shall be the sole source of any
obligations of Provider with respect to the subject matter hereof and
shall control over any documents or information that are alleged to
impose conflicting obligations on Provider, including information on
this Web Site. This Agreement may not be modified except as
provided in Section 4 of this Agreement. Specific goods and
services may be subject to additional or different terms and users of
such goods and services shall be bound thereby.
(g)
Assignment. Your subscription to 3DXplorer® and any of your
rights or obligations under this Agreement may not be assigned or
otherwise transferred without Provider's express written consent, and
any such transfer shall be void without such consent. Provider reserves
the right to assign and otherwise transfer any and all rights and
obligations under this Agreement to any third-party without notice
including any party that acquires all or substantially all of
Provider's business or assets relating to 3DXplorer®.
(h)
Interpretation. Any law that provides that the language of a
contract shall be construed against the drafter shall not apply to this
Agreement. When used in this Agreement, the term "include" or
"including" means "including but not limited to" whether or not
specifically stated. The section titles in this Agreement are
solely used for convenience and shall not be construed to alter the
meaning of the actual provisions of this Agreement. All decisions
and determinations that may or must be made by Provider under this
Agreement are within the sole discretion of Provider whether or not
expressly stated.
V1: December 2, 2007
V2: February 11, 2009 |
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