CONCEPT3D

TERMS OF SERVICE

(Tour Builder)

These Terms of Service set forth the legally binding terms and conditions for your use of the Concept3D Tour Builder Service (the “Services”).

By clicking on the “Accept,” “sign up free,” “upgrade your plan,” or equivalent access, agreement or purchasing button, you or the company or entity that you represent (“you,” “your,” “yours” or “customer”) are consenting to be bound by and are becoming a party to these Terms of Service. You are also representing and warranting that the individual clicking on the button is authorized to enter into this agreement and bind such entity. Your continued use of any portion of the services shall also constitute assent to the terms of these Terms of Service. If you are using the Services on behalf of a company or other entity, then all references to “you” or “your” herein shall refer to both the individual and the entity. If you do not unconditionally agree to all of the terms of these Terms of Service, you will have no right to use the Services (and you should immediately cease all such use).

1. Acceptance of Terms of Service.

a. By registering for and/or using any of the Services in any manner, including visiting or browsing the Concept3D Website, you agree to these Terms of Service, and all other operating rules, policies, and procedures that we may publish from time to time through the Services, each of which is incorporated by reference.

b. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.

c. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise. Please note that if you have executed a separate written agreement with Concept3D regarding your use of certain of our Services, then that agreement, and not these Terms of Service, applies to those Services. 

d. Arbitration notice and class action waiver: except for certain types of disputes described in the arbitration section below, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.

2. Eligibility.

You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, register for an Account (defined below) or use the Services. Furthermore, you must be at least 18 years of age to use any Paid Services or any other portion of the Services that requires you to make any payment. We may, in our sole discretion, refuse to offer the Services to any person or entity and change eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service and your use of the Services (a) are in compliance with all laws, rules and regulations applicable to you, including but not limited to the Americans with Disabilities Act and any applicable privacy laws, and (b) do not violate any other agreement to which you are a party. The right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.

3. Registration and Users.

To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information for your Account. Each Account shall only be used by the individual user that registered such Account. You may never use another person’s user Account without permission from Concept3D, or share your Account or access credentials with any other individual. You should never publish, distribute, or post login information for your Account. “User” means an individual whom you authorize to use the Services. Users may include your employees, consultants, contractors and agents, and third parties with which you transact business. A User’s access credentials may not be shared with any other individual or entity for purposes of using the Services. You are responsible for maintaining the security of your Account, passwords (including, but not limited to, administrative and user passwords). You shall be responsible for acts, omissions, or breaches hereunder by any of your Users or any other individuals using your Account or credentials for the Services. You must keep your Account information updated, and you must notify us immediately of any change in your eligibility to use the Services or breach of security or unauthorized use of your Account.

Please note that if you are a User of an Account purchased by your employer or another entity, then these Terms of Service allow such person or entity to change or limit your access to the Services at any time. It is up to that person or entity to inform you of any particular rules, requirements or limitations regarding your use beyond those set forth in these Terms of Service. You agree to look solely to such person or entity regarding any dispute relating to such additional rules, requirements, or limitations.

4. The Services.

a. Services. Subject to these Terms of Service, Concept3D will use commercially reasonable efforts to make the Services available to you.

b. Content. “Content” means information, data, text, fonts, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. As between the parties, all Content, except for Customer Data (as defined below), is owned by Concept3D or its licensors. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. Subject to these Terms of Service, Concept3D (i) grants to you a worldwide, non-exclusive, non-sublicensable, and non-transferable license to use (i.e. to download and display locally) Content solely for purposes of using the Services for your use.

c. “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 man-made 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.; or (4) the dissemination to any third party of any information relating to the foregoing.

d. Restrictions on Use of the Services.

You will not directly or indirectly:

i. sell, license, sublicense, distribute, copy, rent, or lease the Services, or include the Services in a service bureau, time-share outsourcing offering, or otherwise make the Services available to, or use the Services for the benefit of, any third party, or transfer any of the rights that you receive hereunder;

ii. interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein or attempt to gain unauthorized access to the Services or its related systems or networks;

iii. copy, modify, translate, or create derivative works based on the Services or any underlying software or any part, feature, function, or user interface thereof, including by framing or mirroring any part of any Services or any Content (except as expressly allowed by Concept3D);

iv. access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service;

v. decompile, disassemble, decipher, or reverse engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, (except to the extent such restriction is prohibited by applicable statutory law);

vi. remove any copyright notices, information, and restrictions contained in the Services or any Content;

vii. bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services) or take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers’) infrastructure;

viii. use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Concept3D Website or Services; or

ix. otherwise take any action in violation of our guidelines and policies, including these Terms of Service.

x. Licensee agrees to notify Concept3D promptly if Licensee becomes aware of any unauthorized possession, use, or access 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. Licensee will promptly furnish full details of such unauthorized possession, use or access to Concept3D, will assist in preventing the recurrence of such possession, use or access, and will cooperate with Concept3D, , in any litigation against third parties deemed necessary by Concept3D 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 Concept3D to recover damages or obtain other v1 relief against Licensee for any act or omission which may have resulted in the unauthorized possession, use or access.

xi. 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 Concept3D. Licensee hereby expressly disclaims and releases Concept3D 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 Concept3D 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 Concept3D in connection therewith.

e. Availability. We are not and will not be responsible or liable for any failure in the Platform or Services resulting from or attributable to (i) Customer Data or failures to deliver Customer Data to Concept3D; (ii) failures in any telecommunications, network or other service or equipment outside of Concept3D’s facilities; or (iii) any force majeure or other cause beyond Concept3D’s reasonable control. We do not guarantee that the Services or any Content will be available, or that any Content that is available is or will continue to be accurate. We reserve the right, but do not have any obligation, to remove, edit, modify, or block access to any Content in our sole discretion, at any time, without notice to you and for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service).

f. Limits. We may impose certain limits on the use of the Services, including without limitation the amount of Customer Data that may be stored, number of users, the number of tour views, map views, or other rate or usage limitations at any time in our sole discretion.

5. Customer Data.

a. Definition. “Customer Data” means any and all electronic data, Content, photography, videos, written descriptions, audio, and information uploaded or submitted to the Services by you or by a third party on your behalf. You retain all of your rights to your Customer Data, except for the license granted below.

b. License to Customer Data. You hereby grant Concept3D a non-exclusive, worldwide, royalty-free, fully paidup right and license to use, copy, access, process, reproduce, perform, display, modify, distribute, and transmit your Customer Data in connection with the Services, including the right to create and display marketing materials using Customer Data. You acknowledge and agree that (i) the quality of the Services and the Platform depend on the uploading or other provisioning of the Customer Data into the Platform or the Services, as applicable and (ii) Concept3D will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data entered by you. Furthermore, you also hereby do and shall grant each user of the Concept3D Website and/or the Services a non-exclusive right and license to access your Customer Data posted on portions of the Services that are viewable to other users, and to use, edit, modify, reproduce, distribute, and display such Customer Data in accordance with the terms, features, and settings of the Services made available by Concept3D and any additional rights and restrictions granted by you to such users.

c. Aggregate Data. Notwithstanding anything to the contrary set forth herein, Concept3D may collect and use data regarding the use and performance of the Service in anonymized and aggregated form, to analyze and improve the Service and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.

d. Representations and Warranties. You represent, warrant, and covenant that (i) all Customer Data is accurate and compliant with all applicable laws, rules, and regulations; (ii) you own all rights, title, and interest in and to the Customer Data, or have otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use, and distribution thereof as contemplated by these Terms of Service; (iii) you shall only use the Services in accordance with all applicable laws, rules, and regulations, these Terms of Service and any relevant documentation provided by Concept3D and (iv) you will not, and will not permit any third party to upload, download, post, submit, provide, transmit, distribute, or otherwise make available to or through the Services any Customer Data that (A) is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any third party, including any intellectual property, proprietary, or privacy rights, or that is otherwise inappropriate, as determined by us in our sole discretion; (B) contains any viruses, code, files, or programs designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; or (C) contains any personally identifying information subject to specialized security regimes including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), and the standards promulgated by the PCI Security Standards Council (“PCI”). You acknowledge and agree that Concept3D is not a “Business Associate” under HIPAA, and you will not provide any protected health information to Concept3D.

6. Third-Party Services.

The Services may permit you to link to other websites, services, or resources on the Internet, and other websites, services, or resources may contain links to the Services. Additionally, third-party vendors may provide advertising services on or related to the Services, such as by serving ads to users using cookies on the Concept3D Website or pop-up ads or features. For more information about third-party advertising, cookies, and opt-outs, please visit Concept3D’s privacy policy at https://www.concept3D.com/privacy. When you access third-party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any third-party website or resource. Concept3D will also not be responsible or liable for any failure in the Services attributable to your or any third party’s products, services, negligence, willful misconduct, breach of these Terms of Service, or other unauthorized access or use.

7. Payments and Billing.

a. PAID Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Services are deemed part of these Terms of Services. All amounts are stated in, and shall be paid in, U.S. dollars.. We may revise the rates for Paid Services at any time, or impose additional fees or charges. If you are a subscriber to Paid Services, we will provide prior notice of any increase of fees, by a message to the contact person listed on your account, by posting on the Service or on our pricing page, or some other means as set forth in Section 15, below. We may also periodically review your usage and bill you for any overages or increases at our thencurrent rates.

b. Payment; Late Fees. By signing up to receive any Paid Services, you (i) agree to pay us, in accordance with all applicable payment terms and herein, the applicable Fees for such Paid Services; (ii) authorize us, through the Payment Processor (defined below), to charge your chosen payment provider (“Payment Method”) for the applicable Fees and (iii) agree to make payment using that selected Payment Method. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies.

c. Taxes. All Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You shall be responsible for paying all Taxes associated with the Services (without any offset or deduction to the fees paid to Concept3D) other than U.S. taxes based on Concept3D’s net income.

d. Billing. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to these Terms of Service. We are not responsible for error by the Payment Processor. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if the Payment Processor has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.

e. Auto-Renewal. Fees for certain Paid Services are automatically charged on a recurring monthly basis.. Unless you cancel or change your Subscription in accordance with these Terms of Service, any Subscriptions you have signed up for will be automatically extended for successive renewal periods of the same duration as the Subscription originally selected, at the then-current non-promotional rate. By signing up for a Subscription, you agree that we may submit the charges associated with such Subscription for payment on the applicable schedule and you will be responsible for such charges. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service and/or Subscription. BY SIGNING UP FOR A SUBSCRIPTION YOU ACKNOWLEDGE AND AGREE THAT WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (THE RECEIPT OF WHICH HAS BEEN CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO THE BILLING SECTION OF THE SERVICE. PLEASE CONTACT US AT SUPPORT@CONCEPT3D.COM IF YOU NEED ANY ASSISTANCE. This does not waive our right to seek payment directly from you.

f. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR ACCOUNT CREDENTIALS OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE DIRECTLY BY YOU USING THE SERVICE. PLEASE CONTACT US AT SUPPORT@CONCEPT3D.COM IF YOU NEED ANY ASSISTANCE. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.

g. Cancelling or Changing Paid Services. To change or terminate access to your Paid Services at any time, go to Account settings. Please contact us at support@concept3D.com if you need any assistance. Any request for cancellation must be sent three (3) days prior to the end of the Subscription term to allow for adequate processing time. Your non-termination or continued use of the relevant Paid Service reaffirms that we are authorized to charge your Payment Method the Fees for such Paid Service, including any associated fees (e.g. overage fees or late fees, to the extent applicable). If you terminate a Paid Service, your account will be disabled and your paid Subscription will not be renewed. You will not be eligible for a prorated refund of any portion of any Fees paid.

h. No Refunds. Once initiated by you, payment obligations are non-cancelable. Except as expressly set forth in these Terms of Service, Concept3D will not, under any circumstances, issue refunds or pro-rate any Fees for early cancellation or termination of the Services, or for any other reason, including for any unused Services.. Subscription quantities cannot be decreased during the relevant Subscription term.

i. Chargeback Policy; Disputes. If you have a question about charges made to your Account, please contact us immediately. If the charges were made in error, we will credit your Billing Account or Payment Method for the appropriate amount. Please note that Concept3D has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid may be permanently banned from use of any and all Concept3D Services.

j. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at support@concept3D.com.

8. Copyright Policy.

We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.

a. Procedure for Reporting Copyright Infringement:

i. If you believe that material or content residing on or accessible through our websites, application, or services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;

2. Identification of works or materials being infringed;

3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;

4. Contact information about the notifier including address, telephone number and, if available, email address;

5. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and

6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

ii. Please contact the Designated Agent to Receive Notification of Claimed Infringement for Concept3D at:

Berg Hill Greenleaf Ruscitti LLP

1712 Pearl Street

Boulder, Colorado 80302

9. Termination.

a. Termination by Either Party. You have the option of canceling your Account at any time by following the instructions on the Concept3D Website or through the Services or by contacting us at support@concept3D.com. We reserve the right to terminate your Account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately. All provisions of these Terms of Service which by their nature should survive termination or expiration shall survive termination, including provisions regarding ownership, aggregate data use, payment (to the extent any payment obligations remain outstanding), warranty disclaimers, indemnity and limitations of liability.

b. Customer Data After Termination. Termination or cancellation of your Account by either party may result in the forfeiture and destruction of all information and data, including Customer Data, associated with your Account. Termination, cancellation or expiration of your Account will result in a loss of your Customer Data; we may delete or destroy all copies of your Customer Data in our systems or otherwise in our possession or control, unless legally prohibited. We reserve the right, including after termination, to access, read, preserve, and disclose any information, including without limitation Customer Data, as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public.

c. Fees Due Upon Termination. In the event of termination, you shall pay Concept3D all Fees due for the entire subscription period.

d. Prohibited Transactions. Concept3D is generally prohibited from providing services to parties located in countries that are the target of U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.  Department of the Treasury (OFAC) and to parties that are included on U.S. sanctions lists. We reserve the right to refuse transactions (or terminate Accounts) in compliance with sanctions from administered by OFAC.

10. Warranty Disclaimer.

a. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.

b. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.

c. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction.

11. Indemnification.

You are solely responsible for your conduct and your data related to the Service. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your Customer Data, violation of these Terms of Service, or infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

12. Limitation of Liability.

IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (II) $500.00.

13. CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS

a. CLASS ACTION WAIVER. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE SUBJECT TO JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS IN DENVER, COLORADO. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE LITIGATION FOR ANY CLAIMS COVERED BY THESE TERMS OF SERVICE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS LITIGATION OR ANY CONSOLIDATION OF INDIVIDUAL LITIGATION. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms must be filed within one (1) year after such claim of action arose or be forever banned.

14. Governing Law and Jurisdiction.

These Terms of Service shall be governed by and construed in accordance with the laws of the State of Colorado, including its conflicts of law rules. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be resolved in Denver, Colorado.

15. Modification.

We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content), with or without notice. If we make material changes to these Terms of Service that negatively affect you, or materially reduce the Services, we will notify you by posting a notice or new version of these Terms of Service on the Site or Service, or by sending you notice through the Services, via email or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of material modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.

16. Miscellaneous.

a. Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to Tour Builder, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Tour Builder Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of Concept3D to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.

c. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.

d. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.

e. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to support@concept3D.com. You acknowledge and agree that Concept3D may occasionally send you communications regarding your account or the Services via email or by posting on the Services.

f. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

g. Open Source. The Service may contain or be distributed with open source software or other third-party software which may be covered by a different license. Notwithstanding anything to the contrary, the obligations of Concept3D set forth in these Terms of Service do not extend to any open source software or such other third-party software which may be made available by Concept3D, or otherwise obtained or used by you. You agree that all open source software or such other third-party software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms. To the fullest extent possible, Concept3D disclaims all warranties and liability regarding such open source and third-party software in accordance with the terms of these Terms of Service.

h. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Concept3D to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

i. Headings; Interpretation. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms of Service shall be read as being followed by “without limitation” where appropriate.

j. Publicity. You hereby consent to inclusion of your name and logo in client lists that may be published as part of Concept3D’s marketing and promotional efforts.

k. Any claim related to these Terms of Service, the Site(s) or the Service must be brought within one year. The one-year period begins on the date when the claim first arose. If it is not filed, then that claim is permanently barred. This applies to you and your successors.

l. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Service. Contact.

You may contact us at the following address: concept3D support@concept3D.com or 3858 Walnut Street Suite 212 Denver, CO 80205

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