THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 12 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE OUR WEBSITE, APP, PRODUCTS AND SERVICES.
We reserve the right to change or modify this Agreement at any time and your continued use of our website, App (as such term is defined herein) and other products and services will indicate your assent to such modified Agreement.
1.1 Licensee orders the following ItSeez3D services during the applicable term (the “Subscription Term,” which shall include the full duration of the Initial Term and any Renewal Term collectively), in exchange for the fees (if any) set forth during the order process:
Itseez3D shall provide Licensee (and, if Licensee is a business entity, Licensee’s Authorized Users) with the right to use Itseez3D’s application to collect and process images, 3D and RGB data, as applicable (the “App”), which may or may not utilize a 3D sensor supported by Itseez3D (currently Occipital and iSense) (the “Sensor”), in order to create 3D models for Licensee (and, if Licensee is a business entity, Licensee’s Authorized Users) for any lawful purpose, including, without limitation, for the purpose of (i) printing 3D objects via a third-party 3D printer, and/or (ii) creating 3D avatars (“Avatars”) (as used in conjunction with the App and the Sensor, the “Itseez Service”). Subject to the payment of the applicable licensing fees, the Itseez Service may be provided via Itseez3D’s cloud server or, subject to Section 4.5, on Licensee’s local server (the “Local Server”) which contains Itseez3D’s App.
2.1 “App” has the meaning set forth in Section 1.1 (as such App may be modified or withdrawn by Itseez3D at any in its sole and absolute discretion), including Documentation, along with any releases, updates, or upgrades, licensed to Licensee under the terms of this Agreement.
2.2 “Authorized Users” means, in the event that Licensee is a business entity, Licensee’s end purchasers of objects produced with 3D printing technology.
2.3 “Avatars” shall have the meaning set forth in Section 1.1.
2.4 “Claim” shall have the meaning set forth in Section 12.1.
2.5 “Confidential Information” means a discloser’s non-public written information, in any form, and all copies, summaries and extracts, which are identified as confidential at the time of disclosure. Confidential Information does not include information that:
(A) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of recipient,
(B) was known to recipient, free of any confidentiality obligations, before its disclosure by discloser,
(C) becomes known to recipient, free of any confidentiality obligations, from a source other than discloser, or
(D) is independently developed by recipient without use of the Confidential Information.
2.6 “Documentation” means any information published by Itseez3D including, without limitation, reference material, help documentation and product information on Itseez3D’s website, relating to the use of Itseez3D product and services, including the App.
2.7 “Initial Term” shall have the meaning set forth in Section 5.1.
2.8 “Itseez Service” shall have the meaning set forth in Section 1.1.
2.9 “Licensee Data” means Licensee’s electronic data or information (including, without limitation, Licensee’s (i) Confidential Information, (ii) images, (iii) Avatars, (iv) 3D data, and/or (v) RGB data) which may be created or processed by Itseez3D’s App and/or stored on Itseez3D’s servers.
2.10 “Local Server” shall have the meaning set forth in Section 1.1.
2.11 “Marks” shall have the meaning set forth in Section 11.1
2.12 “Order Form(s)” means the Agreement or any other document agreed to, or referenced, by the parties (including via electronic means) that describes the subscription that is being ordered by Licensee, including applicable fees.
2.13 “Professional Services” means any services required for Licensee to implement and use the App as detailed in a separate written agreement, which may include, configuration, implementation, customization, consulting, and training.
2.14 “Renewal Term” shall have the meaning set forth in Section 5.1.
2.15 “Sensor” shall have the meaning set forth in Section 1.1.
2.16 “Tax(es)” means any tax, fee, or cost not based on Licensee’s net income or capital, including without limitation any sales, excise, value added, use, customs, tariffs, imports, government proposed surcharges, withholding, social security, unemployment, duties, levies, and similar taxes and any fees, penalties, or interest associated with any of the foregoing.
2.17 “Trademark License” shall have the meaning set forth in Section 11.1
2.18 “Trademark Licensee” shall have the meaning set forth in Section 11.2.
2.19 “Unintended Results” shall have the meaning set forth in Section 8.2.
3.1 Subject to the payment of fees set forth in the Order Form, Itseez3D grants Licensee a non-exclusive, non-transferable, non-sublicenseable (except to Authorized Users), revocable license during the Term to access and use the App solely for the purpose of allowing Licensee to create (i) 3D objects, and (ii) images, in each case for itself (or, if Licensee is a business entity, for Licensee’s Authorized Users) in conformance with applicable law, third party rights and any other restrictions set forth herein. Upon notice to Licensee, Itseez3D shall have the right to exclude the App from being used to create 3D objects and images which Itseez3D deems to be objectionable, controversial or illegal, as determined in Itseez3D’s sole and absolute if discretion; provided, however, that Itseez3D shall have no duty to monitor Licensee’s or Licensee’s Authorized Users’ (as applicable) use of the App. Furthermore, if Itseez3D provides you with any 3D model based on a human head you agree that you shall not separate or segment the features of such head (including, without limitation, separating the hair from the 3D model head) for any comercial purpose, including, without limitation, for the purpose of selling, licensing or otherwise distributing any such separated or segmented features.
4.1 All fees and rates are set out in the Agreement and payable in full in advance. Notwithstanding any other provision contained in this Agreement, in no event shall any refund of fees be due, including, without limitation, in connection (i) with termination of this Agreement by Itseez3D or Licensee, or (ii) removal of Itseez3D’s App from the Apple App Store or any other termination or suspension of Itseez3D by Apple. All fees are denominated in U.S. dollars. All unpaid invoices or amounts due that are not subject to a good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, which is lower, plus all reasonable expenses of collection.
4.2 All fees are exclusive of Taxes imposed by taxing authorities and Licensee shall be responsible for payment of all such Taxes (excluding taxes based on Itseez3D’s income), even if such amounts are not listed in the Agreement. No part of Itseez3D’s compensation under this Agreement will be subject to withholding for any Taxes or other required payments.
4.3 Additional costs for travel expenses, if any, will be reimbursed with Licensee’s prior written consent.
4.4 Itseez3D reserves the right to increase or decrease all future fees at any time and for any reason in its sole and absolute discretion.
4.5 If Itseez3D agrees to allow Licensee to use a Local Server then Licensee shall (i) pay Itseez3D set-up and support fees to be mutually-agreed between Itseez3D and Licensee in writing, and (ii) upon request, give Itseez3D prompt access to the Local Server at a time and place which is reasonably convenient to Itseez3D and Licensee (but in no event later than thirty (30) days after such request has been made).
5.1 Term. The term of this Agreement will begin on the Effective Date and will continue until the subscription end date, as identified in the Agreement (the “Initial Term”). Following the Initial Term or any Renewal Period as defined below, this Agreement will automatically renew for a subsequent term (each, a “Renewal Period”), unless otherwise agreed by the parties electronically or in writing.
5.2 Termination for Breach. Either party may terminate this Agreement should the other party breach any of its material obligations and the breach continues uncured for 10 days after written notice to the breaching party (which notice may be made via e-mail to the respective e-mail address listed on the signature page hereto). Provided, however, that Itseez3D may terminate this Agreement immediately (i) for the non-payment of any outstanding fees, or (ii) if Licensee’s or Licensee’s Authorized Users breach applicable law or any third party rights in connection with or arising out of the use of the App.
5.3 Termination due to Bankruptcy. Either party may terminate the Agreement with written notice if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is no longer able to function in the normal course of business, or if a receiver is appointed on account of insolvency.
5.4 Termination for Convenience. Either party may terminate this Agreement at any time effective (i) upon thirty (30) days’ written notice (which notice may be made via e-mail), (ii) immediately upon written notice from and after the time that Occipital and/or Apple (or their respective successors and assigns) terminate or request a change to their agreement or relationship with Itseez3D. Licensee’s only obligation to Itseez3D on termination will be to pay any unpaid charges for fees incurred or services performed up to the effective date of termination. Termination by Licensee will not entitle Licensee to any refund for any amounts paid or payable to Itseez3D, including, without limitation, in connection with the license to the App, support services or otherwise.
5.5 Survival. On termination or expiration of this Agreement, each party will be released from all obligations and liabilities to the other party occurring or arising after that date; except that any termination or expiration will not relieve the parties of their obligations under Sections 2 and 4 through 13, nor will termination relieve the parties from liability arising from breach of this Agreement.
6.1 Licensee and Licensee’s Authorized Users have no right or claim to Itseez3D’s intellectual property rights, including, without limitation, in and to the App, the Documentation, the Professional Services, or to Itseez3D’s Confidential Information. Licensee will notify Itseez3D if Licensee becomes aware of any potential infringement of Itseez3D’s rights.
6.2 Except as reasonably necessary to provide the Service, Itseez3D has no intellectual property rights or other claim to the Licensee Data that is hosted, stored, or transferred to and from the App.
6.3 Licensee will not:
(A) use trademarks, trade names, service marks, logos, domain names, other distinctive brand features separate from the App, the Professional Services, or the Documentation without the express written consent of Itseez3D (which consent may be withheld in Itseez3D’s sole discretion); or
(B) remove, obscure, or alter any copyright notice, trademark, or other proprietary right appearing in or on any item included with the App, or the Documentation.
(C) copy, modify, adapt, alter, translate, or create derivative works from the App.
(D) merge the App with other application or software.
(E) distribute, sublicense, lease, rent, loan, or otherwise transfer the App to any third party.
(F) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the App.
(G) take any action that would breach Itseez3D’s rights, including, without limitation, Itseez3D’s copyrights in the App and Documentation.
(H) infringe or violate, or permit others to infringe or violate, any third party rights in connection with its or others’ use of the App and/or Avatars (including, without limitation, any intellectual property rights and privacy rights).
6.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Licensee acknowledges and agrees that although Itseez3D strives to provide high-quality 3D models and images, Itseez3D shall have no obligation or liability (financial or otherwise) for the quality, merchantability, legality (including, without limitation, any breach of third-party rights) or fitness for a particular purpose of any model created or printed in connection with this Agreement.
7.1 A recipient of Confidential Information hereunder will:
(A) use Confidential Information only as necessary to perform its obligations under this Agreement,
(B) hold Confidential Information in with the same level of care that it holds its own Confidential Information (but in any event with no less than a reasonable level of care)
(C) disclose Confidential Information to only those third parties who provide services to the Recipient and have previously agreed in writing to protect third party confidential information to the same extent as required in this Agreement, and
(D) either promptly deliver or promptly destroy (and certify the destruction to the discloser) all Confidential Information and copies in the recipient’s possession at the discloser’s request and at the expiration or termination of this Agreement; provided, however, that recipient may retain a single copy solely for back-up or archival purposes.
7.2 If a party receives a court order or is otherwise required by law to disclose any Confidential Information obtained from a discloser, the receiving party must:
(A) to the extent allowable by applicable law, notify the discloser immediately on receipt of the court order or other document requiring disclosure so that the discloser may object and move for a protective order, and
(B) if Confidential Information is to be filed with a court, file it under seal or request that the court seal the Confidential Information before disclosure.
7.3 Except as may be required by court order or law, a recipient’s obligations regarding Confidential Information will remain in full force and effect. The recipient acquires no licenses or other rights to Confidential Information under this Agreement.
8.1 Itseez3D represents and warrants to Licensee that to its knowledge the App will not infringe any third party intellectual property rights; provided, however, that no representation is made with respect to any 3D models, images or any other output or work created or printed in connection with the App or this Agreement.
8.2 Licensee represents and warrants to Itseez3D that the use of Itsee3D’s products and services, including, without limitation, the App, by Licensee, Licensee’s Authorized Users and any third-parties who hold or otherwise possess Licensee Data, shall only be for legal purposes and shall otherwise comply with all applicable legal requirements and third-party rights whether existing now or in the future.
8.3 Licensee acknowledges and agrees (on behalf of itself and its Authorized Users) that the results from the App (including, without limitation, Avatars) may be affected by several factors beyond Itseez3D’s control. For example, Infrared lighting may be less effective on darker objects (including, without limitation, darker hair) and therefore the sensor may not work as required to properly run the App in such cases. Such limitations may affect different races differently due to the general characteristics and traits associated with one or more such races. However, Licensee (on behalf of itself and its Authorized Users) acknowledges and agrees that any such limitations are completely unintended and Itseez3D shall not be liable in any manner whatsoever with respect to the results and functionality (or lack thereof) caused by such factors (collectively, the “Unintended Results”) that may result from use of the App by Licensee and/or other licensees.
8.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, ITSEEZ3D MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ITSEEZ3D SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ITSEEZ3D DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY OR IN CONNECTION WITH (i) LICENSEE’S DATA (ii) ANY THIRD-PARTY HOSTING, (iii) USING AND/OR THE RESULTS OF ITSEEZ3D’S PRODUCTS AND SERVICES (WHETHER FOR LEGAL OR ILLEGAL PURPOSES, AND/OR IN VIOLATION OF ANY RIGHTS OF THIRD PARTIES), AND (iii) ANY IMPROPER, UNAUTHORIZED OR ILLEGAL ACCESS OR USE (INCLUDING, WITHOUT LIMITATION, HACKING) OF ITSEEZ3D’S PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE APP) OR LICENSEE’S DATA (AND/OR AUTHORIZED USERS’ DATA) BY LICENSEE, LICENSEE’S AUTHORIZED USERS OR ANY OTHER THIRD-PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITSEEZ3D AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THAT YOUR USE OF THE APP (AND THE RESULTS DERIVED THEREFROM, INCLUDING, WITHOUT LIMITATION, AVATARS) AND LICENSEE DATA WILL NOT VIOLATE APPLICABLE LAW AND/OR ANY THIRD PARTY RIGHTS EXISTING NOW OR IN THE FUTURE (INCLUDING, WITHOUT LIMITATION, INTELLECTUAL PROPERTY AND PRIVACY RIGHTS), (C) THE QUALITY OF ITSEEZ3D’S PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE APP) WILL MEET LICENSEE’S OR LICENSEE’S AUTHORIZED USERS’ REQUIREMENTS, AND/OR (D) THAT THE APP WILL NOT HAVE UNINTENDED RESULTS (AS SUCH TERM IS DEFINED IN SECTION 8.2). LICENSEE ACKNOWLEDGES AND AGREES ON BEHALF OF ITSELF AND ITS AUTHORIZED USERS THAT NEITHER ITSEEZ3D NOR ITS THIRD PARTY PROVIDERS ARE RESPONSIBLE IN ANY MANNER FOR LICENSEE DATA (INCLUDING, WITHOUT LIMITATION, THE CREATION OR SUBSQUENT USE THEREOF, WHETHER IN A MANNER THAT IS LEGAL OR ILLEGAL) NOR THE MANNER IN WHICH LICENSEE, ITS AUTHORIZED USERS AND/OR OTHERS USE THE APP AND/OR LICENSEE’S DATA. FURTHERMORE, LICENSEE ACKNOWLEDGES ON BEHALF OF ITSELF AND ITS AUTHORIZED USES THAT NEITHER ITSEEZ3D NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ITSEEZ3D IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.1 Indemnity by Itseez3D. Itseez3D will defend, indemnify, and hold Licensee, its officers, directors, employees, customers, and agents, harmless from and against any and all third party claims (including losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs) related to or arising out of:
(A) Itseez3D’s gross negligence or willful misconduct, and
(B) Itseez3D’s knowing infringement of a U.S.-registered intellectual property rights of a third party in connection with Licensee’s use of the App; provided, however, that Licensee will supply Itseez3D with prompt written notice of any claims. Itseez3D will have sole control of the defense of any claims, provided, Licensee may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on Licensee will require Licensee’s prior written consent which consent shall not be unreasonably withheld. Licensee will supply Itseez3D with all reasonable assistance and information in the defense and settlement of claims at Itseez3D’s expense.
9.2 Itseez3D Indemnity Options. If an Infringement Claim endangers or disrupts Licensee’s use of the App, Itseez3D may, in its sole discretion and at no charge to Licensee, take any of the following actions:
(A) obtain a license for Licensee’s continued use of the App,
(B) modify the App to avoid infringement without materially impairing the functionality,
(C) replace the App with a compatible, functionally equivalent, and non-infringing replacement; or, if options (A) through (C) cannot be accomplished under commercially-reasonable terms, immediately terminate this Agreement, and refund a pro-rata portion of fees paid in accordance with this Agreement.
9.3 Indemnity by You. Licensee will defend, indemnify, and hold Itseez3D, its parent, subsidiaries, affiliates and its and their respective officers, directors, employees, stockholders, customers, agents and other representatives harmless from and against any and all third party claims (including losses, liabilities, damages, expenses, costs, reasonable attorneys’ fees, and court costs related) to or arising out of (i) Licensee’s breach of this Agreement, (ii) Licensee’s Data, (iii) Licensee’s or its Authorized Users breach of applicable law and/or third party rights (whether existing now or in the future), and (iv) Licensee’s or its Authorized Users gross negligence or intentional misconduct; provided, however, that Itseez3D will supply Licensee with prompt written notice of any claims (which notice may be made via e-mail to Licensee). Licensee will have sole control of the defense of any claims, provided, Itseez3D may participate in the defense and settlement of claims at its own expense. Any settlement of claims that imparts any obligation or liability on Itseez3D will require Itseez3D’s prior written consent which consent shall not be unreasonably withheld. Itseez3D will supply Licensee with all reasonable assistance and information in the defense and settlement of claims at Licensee’s expense.
10.1 ITSEEZ3D SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF ITSEEZ3D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (D) FOR ANY RESULTS OR OUTPUT CREATED IN CONNECTION WITH THE APP (INCLUDING, WITHOUT LIMITATION, AVATARS, THEIR SUBSEQUENT USE THEREOF AND ANY UNINTENDED CONSEQUENCES (AS SUCH TERM IS DEFINED IN SECTION 8.2)), OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $10,000 OR THE FEES PAID BY LICENSEE TO ITSEEZ3D IN THE PRECEEDING THREE (3) MONTHS
11.1 Reciprocal License. Notwithstanding any other provision of this Agreement, each party hereby grants to the other party a non-exclusive, royalty-free, non-transferable, worldwide license to use and reproduce such party’s trademark(s) or service mark(s) (the “Marks”) on the other party’s website(s) and in presentations in order to publicize the business relationship between the parties in connection with the Agreement (the “Trademark License”).
11.2 Restrictions. Each party (“Trademark Licensee”) shall use the other party’s (“Trademark Licensor”) Marks in conformance with Trademark Licensor’s reasonable trademark usage policies as communicated to Trademark Licensee in writing from time to time. Trademark Licensee shall not attempt to register any of Trademark Licensor’s Marks, nor shall it adopt any derivative or confusingly similar names, brands, or marks, or create any combination marks with Trademark Licensor’s Marks. Trademark Licensee acknowledges Trademark Licensor’s and its affiliates’ ownership and exclusive right to use Trademark Licensor’s Marks and agrees that all goodwill arising as a result of Trademark Licensee’s use of Trademark Licensor’s Marks shall inure solely to the benefit of Trademark Licensor and its affiliates. Except for the Trademark License granted pursuant to Section 11.1, without the prior written approval of the other party, neither party will issue any public statements or promotional materials disclosing the existence of this Agreement or the performance of Services.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATING TO THE APP (INCLUDING, WITHOUT LIMITATION, YOUR LICENSE THEREOF OR SUBSCRIPTION THERETO), ANY INFORMATION YOU PROVIDE INCLUDING LICENSEE DATA, THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH), AND YOUR USE OF THE ITSEEZ3D SERVICE WILL BE EXCLUSIVELY RESOLVED UNDER CONFIDENTIAL BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO BRING A LAWSUIT IN COURT AGAINST ITSEEZ3D, INCLUDING THE RIGHT TO A TRIAL BY JURY, AND RIGHTS AVAILABLE IN A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. ARBITRATION IS A FORM OF PRIVATE DISPUTE RESOLUTION IN WHICH PARTIES TO A CONTRACT AGREE TO SUBMIT THEIR DISPUTES AND POTENTIAL DISPUTES TO A NEUTRAL THIRD PERSON (CALLED AN ARBITRATOR) FOR A BINDING DECISION, INSTEAD OF HAVING SUCH DISPUTE DECIDED IN A LAWSUIT, IN COURT, BY A JUDGE OR JURY TRIAL. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
12.1 Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, Itseez3D, and/or any involved third party relating to, or arising in connection with, your use of the Itseez Service, your relationship with Itseez3D, or this Agreement. This includes any and all claims that relate in any way to your use of the Itseez3D’s products and services, your attempted use of such products and services, and any act or omission by Itseez3D or any third party related to your use or attempted use of such products and services. You, Itseez3D, or any involved third party may pursue a Claim. Itseez3D agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Itseez3D. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended (or any successor thereto).
12.2 Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Itseez3D both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Itseez3D will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
12.3 Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Itseez3D, you will first give Itseez3D an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information related to your use of the Itseez Service. You may send the written description by U.S. Mail to Itseez3D, Inc., 5201 Great America Parkway, Suite 320, Santa Clara, CA 95054; Attn: General Counsel. You agree to negotiate with Itseez3D in good faith about your problem or dispute. If your problem or dispute is not resolved to your satisfaction within 60 days after Itseez3D’s receipt of your written dispute, you agree to the dispute resolution provisions below.
12.4 Commencement of Arbitration. Except where otherwise prohibited by law such as (including, without limitation, the State of New Jersey), You and Itseez3D agree to commence any arbitration proceeding within one (1) year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
12.5 Arbitration Location. For your convenience, the arbitration may be conducted in the U.S. federal district where you reside or which is closest to you. If you are located outside the U.S. then the arbitration may be conducted in California or the U.S. federal district which is closest to your country. It may be held by telephone or through written submissions if both you and Itseez3D agree.
12.6 Applicable Law. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of California, without regard to principles of conflict of laws thereof
12.7 Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Agreement and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Itseez3D.
12.8 Arbitration Fees. You and Itseez3D shall each pay half of all filing, administrative, and arbitrator fees for an arbitration initiated by you; provided, however, that Itseez3D shall have the irrevocable option to pay all such fees itself in its sole discretion. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses. However, if Itseez3D is the prevailing party in the arbitration, it shall (to the extent permisible by applicable law) also be awarded its attorneys’ fees and costs.
12.9 Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
12.10 Enforceability. This provision survives termination of your account or relationship with Itseez3D, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
12.11 Miscellaneous. This provision is the entire arbitration agreement between you and Itseez3D and shall not be modified except in writing by Itseez3D.
12.12 Amendments. Itseez3D reserves the right to amend this arbitration provision at any time. Your continued use of the Itseez Service and/or any Itseez3D product, or use or attempted use of an Itseez3D product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Itseez3D will provide you notice. Your continued use of the Itseez Service and/or any Itseez3D product, or use or attempted use of an Itseez3D product or service, after receiving such notice is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF LICENSE, USE, OR ATTEMPTED USE OF THE ITSEEZ3D SERVICE OR ANY ITSEEZ3D PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO ITSEEZ3D, INC., 5201 GREAT AMERICA PARKWAY, SUITE 320, SANTA CLARA, CA 95054; ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING THE ITSEEZ3D SERVICE OR PRODUCT YOU LICENSED OR PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST LICENSED, PURCHASED, USED OR ATTEMPTED TO USE THE ITSEEZ3D SERVICE OR PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
13.1 Relationship of Parties. Itseez3D is an independent contractor and is not an agent or employee of Licensee nor its Authorized Users. Except as may be specifically set forth herein, neither party has authority to bind the other by contract or otherwise. Itseez3D will perform any Professional Services under the general direction of Licensee, but Itseez3D will determine, in Itseez3D’s sole discretion, the manner and means that the Professional Services are accomplished, subject to the express conditions that Itseez3D will:
(A) comply with all applicable laws, statutes, ordinances, and regulations,
(B) follow all commercially-reasonable Licensee supplied guidelines and policies to the extent that such guidelines and policies do not otherwise conflicto with the terms of this Agreement.
13.2 Assignment. The parties’ rights and liabilities will bind and inure to the benefit of their respective successors, executors, and administrators. Except in connection with a merger or sale of all or substantially all of Licensee’s business or assets, Licensee may not assign this Agreement without Itseez3D’s written consent, which written consent shall not be unreasonably withheld.
13.3 Conflict of Laws. This Agreement will not be governed by the conflict of laws rules of any jurisdiction, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
13.5 Notice. Any notices will be given to the appropriate party (i) as set forth herein, or (ii) at the address specified at the beginning of this Agreement, or as otherwise specified in writing (including, without limitation, by email). Except as otherwise specifically set forth herein, notice will be by personal delivery, by certified or registered mail, or by reputable courier. Notice will be deemed given on personal delivery to the appropriate address, on receipt of certified or registered mail, or if sent by courier, on the date of delivery shown in the courier’s records.
13.6 Complete Understanding; Modification; Waiver. This Agreement constitutes the full and complete understanding of the parties and supersedes all prior understandings and agreements. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
13.7 Force Majeure. Except for Licensee’s payment obligations, neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice (which notice may be made via e-mail to the other party). This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Licensee’s obligation to pay for the Services provided.
13.8 Export. Itseez3D’s Products are subject to the U.S. Export Administration Regulations and Itseez3D will comply with such regulations when providing the App.
13.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent necessary in such jurisdiction without invalidating the remaining portions thereof or affecting the validity or enforceability of such provision in any other jurisdiction. If any provision(s) of this Agreement is or are found invalid under any applicable statute or rule of law, such provision(s) shall be, to such extent, omitted, and the remainder of this Agreement shall be enforced to the fullest extent possible consistent with the intent and purposes of this Agreement.
13.10 Non-Electronic Copy. Licensee has the right to receive this Agreement in non-electronic form. Licensee may request a non-electronic copy of this Agreement either before or after Licensee electronically signs the Agreement. To receive a non-electronic copy of this Agreement, Licensee should send an e-mail to email@example.com