Last Revised 10/21/19
GENERAL TERMS AND CONDITIONS
These Terms and Conditions (the “Agreement”) govern your (“Licensee”) use of any Concept3D, Inc. (“Licensor”) products or services and this Agreement supplements any Software as a Service Agreement (“SAAS”) or Professional Services Agreement (“PSA”) between you and Licensor. References to the Agreement shall refer to this Agreement together with the SAAS and/or PSA, as applicable.
“Effective Date” means the date upon which the agreement is fully executed.
“Licensee Materials” means all images, content, data, software, creative works, and other materials that are provided by Licensee to Licensor.
“Documentation” shall mean the specifications, user guides and other materials for the Software made available by Licensor to Licensee in written or electronic form.
“Fees” means the amounts payable hereunder as more particularly described on the attached Exhibit A.
“Services” means any services provided by Licensor to Licensee under the SAAS or PSA.
“Software” means the computer program(s) listed on Exhibit A of the SAAS, including Deliverables, if any, and updates, enhancements, translations, modifications and derivatives of the Software as may be supplied by Licensor during the Term.
“Standard Enhancement” means any enhancement of the hosted program or revision to the Documentation that Licensor makes on its own initiative and that Licensor makes available to its customers generally, without charge.
“Term” means the calendar period specified on Exhibit A of the SAAS and renewal periods as subsequently elected by and paid for by Licensee as shall be specified in writing between the parties hereto.
“Unsupported Activity” means any activity relating to the drafting, planning, development, or implementation of any materials, documents, policies, procedures, guidelines, guidance, or standards relating to any one of the following: (1) emergencies, including without limitation, any natural or manmade disaster, building evacuation routes, medical emergency response plans, first-responder access, police access, fire department access, or medical access; (2) design or construction activities; (3) determining compliance with any Federal or state law, including without limitation, the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. (“ADA”); (4) use of the Software on any kiosk, touch screen or public computing station; or (4) the dissemination to any third party of any information relating to the foregoing.
(a) Licensee may use the Software during the Term only as set forth herein and on Exhibit A of the SAAS.
(b) Licensee may not: (i) rent, loan, transfer or re-license the Software or Documentation or any portion thereof; (ii) make copies, translations or derivative works of the Software or Documentation; (iii) reverse engineer the Software, except as expressly permitted by applicable law, or create from it any work, whether in tangible or intangible form, that constitutes a “derivative work” within the meaning of the definition set forth in Section 101 of the U.S. Copyright Act; or (iv) communicate or reveal the Software or Documentation to any third party.
(c) Trade name or trademarks used with the Software, and any licenses and rights granted hereunder may not be distributed, sold, sub-licensed, or otherwise made available or transferred, in whole 2 or in part, to any third party without the prior written consent of Licensor. Licensee shall not remove or alter any legends, copyright or trade secret notices from Software or Documentation.
(d) Title to the Software and any copies thereof, including all copies of the Documentation whether in electronic, or printed form and all proprietary rights therein shall at all times remain with Licensor.
(e) Licensee shall continue to own all right, title and interest (including copyrights) in and to all Licensee Materials. Licensee hereby grants to Licensor a perpetual, nonexclusive, transferable, worldwide, royalty-free, fully paid-up, irrevocable license to use, publish, perform, reproduce, display, and prepare derivative works of all Licensee Materials.
3. UNAUTHORIZED USE/UNSUPPORTED ACTIVITY.
(a) Licensee agrees to notify Licensor immediately of the unauthorized possession, use, or knowledge of any component of the Software to which Licensee is given access under this Agreement and of other information made available to Licensee under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge. Licensee will promptly furnish full details of such possession, use or knowledge to Licensor, will assist in preventing the recurrence of such possession, use or knowledge, and will cooperate with Licensor in any litigation against third parties deemed necessary by Licensor to protect its proprietary rights. Licensee’s compliance with this Section shall not be construed in any way as a waiver of any right by Licensor to recover damages or obtain other relief against Licensee for any act or omission which may have resulted in the unauthorized possession, use or disclosure.
(b) Licensee expressly acknowledges and agrees that: (1) the Software has not been designed to support any Unsupported Activity; and (2) Licensee is solely responsible for the accuracy of any Licensee Materials supplied to Licensor. Licensee hereby expressly disclaims and releases Licensor from any and all claims, damages, or liabilities whatsoever arising from or relating to Licensee’s use of the Software for any Unsupported Activity. Licensee hereby expressly agrees to indemnify and hold harmless Licensor from any and all claims, damages, or liabilities whatsoever arising from or relating to Licensee’s use of the Software for any Unsupported Activity, including without limitation, any attorneys’ fees or costs incurred by Licensor in connection therewith.
(c) The Software has been designed for use with personal computers and hand held devices. Licensor does not represent or warrant that the Software will function as intended or be ADA compliant when used on any other devices, including kiosks or public computing stations. Such use is an Unsupported Activity as provided herein.
(a) This Agreement shall terminate at any time during the Term upon the failure of Licensee to observe or perform any of the material covenants, terms and conditions of this Agreement where such nonperformance is not fully remedied by Licensee within thirty (30) days after written notice by Licensor (other than as specified in subsection (c)).
(b) The failure of Licensee to pay Licensor any amounts due hereunder in a timely manner, if such delinquency is not corrected within ten (10) days of Licensor’s demand, will cause all remaining amounts due and to become during the Term to become immediately due and payable and, at the discretion of Licensor, shall be grounds for termination of this Agreement.
(c) Termination of this Agreement under this Section 4 shall be in addition to, and not a waiver of, any remedy at law or in equity. In the event of any termination, Licensee shall immediately cease to use the Software, and shall return all Documentation to Licensor. On the effective date of any termination or expiration of this Agreement, all amounts then owed by Licensee to Licensor automatically will become 3 immediately due and payable, even if later payment dates had been mutually agreed upon by the parties. Subsection (a) provides for expiration of this Agreement, and Subsections 4 (b) and (c) are the only permitted grounds for termination of this Agreement. Licensee shall not have the right to terminate this Agreement for convenience or unilaterally by returning the Software and Documentation for a reason other than expiration or permitted termination of the Agreement.
5. WARRANTIES. Licensor warrants that during the term of the Agreement, the Software shall materially conform to the specifications set forth in the Documentation. In the event of any nonconformance of such Software to the specifications, Licensee shall promptly so notify Licensor and provide Licensor with information that allows Licensor to investigate the claimed error. Licensor’s sole obligation and Licensee’s exclusive remedy under this warranty shall be limited to Licensor using commercially reasonable efforts to promptly correct such defects or, in Licensor’s sole discretion, terminating this Agreement and refunding any prepaid license fee paid by Licensee. Licensor’s warranty obligations shall be void if the Software is modified by anyone other than Licensor. THE FOREGOING WARRANTY IS GIVEN IN LIEU OF, AND LICENSOR HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEMS INTEGRATION AND NONINFRINGEMENT. LICENSEE EXPRESSLY ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX NATURE OF COMPUTER SOFTWARE, LICENSOR CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE.
(a) Licensor shall, at its own expense, defend or at its option settle any claim, suit or proceeding brought against Licensee as a result of infringement of any United States patent, trademark, trade secret, or copyright of any third party, by virtue of Licensee’s use of any of the Software pursuant to the terms of this Agreement. Licensor shall indemnify Licensee against any costs, expenses or damages finally awarded in such action, provided that Licensee promptly notifies Licensor in writing of the action and provided, further, that Licensee permits Licensor full authority to defend or settle the action and cooperates and provides all available information, assistance and authority to enable Licensor to do so.
(b) If the Software is, or in Licensor’s opinion is likely to become, the subject of a claim, suit or proceeding for the infringement of any propriety rights, Licensor may (i) procure for Licensee, at no cost to Licensee, the right to continue usage of the Software, (ii) replace or modify the Software to make it noninfringing, at no cost to Licensee, or (iii) if the right to continue usage cannot be procured for Licensee for a cost not exceeding the amounts paid or to be paid hereunder by Licensee or the Software cannot reasonably be modified to make it non-infringing, terminate the license of such Software, remove the Software and grant Licensee refund of any prepaid license fees.
(c) Licensor shall not have any liability for any claim, suit or proceeding for the infringement of any propriety rights based on the (i) usage of other than the then latest release of the Software from Licensor, if such infringement could have been avoided by the usage of the latest release of Software and such latest version has been made commercially available, or (ii) usage or combination of the Software with software or other materials not manufactured by Licensor if such infringement could have been avoided without such use or combination.
(d) Licensee shall, at its own expense, indemnify, defend and hold harmless Licensor from and against any claim, loss, liability or demand (including reasonable attorneys’ fees) arising out of or in connection with any claim that the Licensee Materials infringe or misappropriate any intellectual property or proprietary rights of any party.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF REVENUES, PROFITS, OTHER ECONOMIC LOSS OR GOODWILL OR OTHER INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, 4 RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, DELAY IN DELIVERY, OR USE OR LOSS OF USE OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO LICENSEE HEREUNDER, WHETHER RESULTING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, OR TORT, INCLUDING NEGLIGENCE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO LICENSEE UNDER THIS AGREEMENT RESULTING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, AND TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY LICENSEE TO LICENSOR IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
(a) MAINTENANCE. Licensor has the sole right and responsibility to maintain and update the Software. In connection with such maintenance and update, Licensee shall provide to Licensor any testing assistance that Licensor may reasonably request.
(b) STANDARD ENHANCEMENTS. Licensor reserves the right, as reasonably necessary or convenient for Licensor’s own purposes or to improve the quality of the Software, to change access procedures, types of equipment utilized in the Licensor computing environment, system interfaces, operating and other system and network software, utilities, and database software, and to implement Standard Enhancements to the Software. Whenever practicable, Licensor shall give Licensee advance notice of the scheduled implementation of any Standard Enhancement.
(c) ACCESS INTERRUPTIONS. Licensee acknowledges and agrees that in order for Licensor to perform the maintenance services set forth herein, Licensor may be required from time to time to interrupt Licensee’s ability to access the Software.
9. PAYMENTS AND TAXES. Licensee shall pay to Licensor the fee(s) in accordance with the payment terms specified in Exhibit A of the SAAS. Licensee shall be responsible for the payment of any and all taxes, fees and duties, including any related Value Added Tax, arising under this Agreement, other than income taxes levied upon Licensor. In addition to any other sums payable thereunder, Licensee shall pay to or reimburse Licensor for all taxes, however designated (except Licensor income taxes), arising from this Agreement. Licensor reserves the right, upon seven (7) days’ advance written notice to Licensee, to suspend operation of Software should Licensee fail to make full payment upon the date said payment is due. Licensor, at its sole discretion, may charge interest, not exceeding one and one half percent (1-1/2%) per month or fraction thereof or eighteen percent (18%) per year, for Licensee’s failure to make any payment in a timely manner. Should Licensor be required to begin an action against Licensee to collect any past due payments, Licensee shall pay all costs of collection, including accrued interest, court costs and reasonable fees of attorneys and fees of other professionals.
11. CONFIDENTIAL INFORMATION.
(a) Licensor and Licensee each expressly undertakes to retain in confidence all information transmitted to it by the other party pursuant to this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except under the terms and during the existence of this Agreement. Licensor and Licensee shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as 5 required in the ordinary course of that party’s business. The receiving party’s obligation hereunder shall extend for five (5) years following the disclosure of the Confidential Information.
(b) Confidential Information shall not include any information that: (i) is at the time of disclosure or subsequently becomes publicly available without the receiving party’s breach of any obligations owed the disclosing party; (ii) became known to the receiving party prior to the disclosing party’s disclosure of such information to the receiving party; (iii) became known to the receiving party from a source other than the disclosing party other than by the breach of an obligation of confidentiality owed to the disclosing party; (iv) is independently developed by the receiving party; (v) has been incorporated into or comprises any part of the Software; or (vi) is aggregated or derived from Licensee’s use of the deliverables or the Software.
(a) The validity and performance of this Agreement shall be governed by the laws of the State of Colorado. Determination of any disputes shall be in the state or federal courts in Boulder or Denver, Colorado, and the parties hereby consent to exclusive personal jurisdiction in such courts for all matters arising under this Agreement.
(b) Neither this Agreement nor any rights or obligations under this Agreement in whole or in part, shall be assignable or otherwise transferable by Licensee without the prior written consent of Licensor and any unauthorized attempt to assign or transfer this Agreement or any rights or obligations under this Agreement shall be null and void. In the event there is a change of fifty (50%) percent or more in the ownership or control of Licensee, or if Licensee acquires or merges with another organization, Licensor reserves the right, at its sole option, to terminate this Agreement or to re-negotiate the fees according to its then-current fee schedule.
(c) This Agreement together with any Exhibit(s) and mutually designated Appendices that may be attached hereto constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all other communications written or verbal.
(d) Any modification to this Agreement must be specified and agreed to in writing by both parties.
(e) All notices and demands hereunder must be in writing and sent by personal delivery, firstclass mail, return receipt requested, confirmed facsimile transmission or nationally or internationally recognized express courier service to the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). Notices or demands sent by personal delivery shall be effective upon delivery. Notices sent by mail, facsimile transmission or courier shall be effective upon the date of receipt as evidenced by the return receipt.
(f) In the event any action is brought by a party in connection with this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, expert and lay witness fees, court costs, deposition costs, travel, and other related expenses.
(g) In making and performing this Agreement, Licensor shall be deemed to be acting as an independent contractor of Licensee and shall not be deemed an agent, legal representative, joint venture or partner of Licensee.
(h) The Services provided to Licensee hereunder are provided on a nonexclusive basis. Nothing contained herein shall prevent Licensor from providing the same or similar services for others.
(i) Licensor’s timely provision of the Services will be contingent upon Licensee providing certain resources as may be more specifically set forth in this Agreement (including any applicable SAAS 6 or PSA). Failure to timely provide such resources may affect the timing of delivery, price of or ability to perform the Services. (j) Notwithstanding anything contained herein to the contrary, neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. If such extended performance times conflict with Licensor’s pre-existing contractual commitment to other customers, Licensor shall so advise Licensee, and the parties shall use their best efforts to agree in writing to an alternative implementation schedule. If the parties are unable to agree upon an alternative implementation schedule, or if the delay continues for a period of three (3) months or more, this SOW may be terminated by either party and neither party shall be liable to the other for such termination, except for payment of fees and costs incurred as of the effective date of termination.