Terms of Service
Visuality360 Account (Brand License)
- The Service
The service licensed to Customer by Company under this Agreement (the "Service") consists of (a) proprietary software and access via Internet to the Company's proprietary system and network of software applications, mobile applications, databases, and design for Visuality360 Account (the "System"); (b) a secure environment within the System for Customer's use to upload, showcase and sell their collection.
In this and subsequent paragraphs, "Use" means, in relation to the software or the documentation, its loading, displaying, running, transmission or storage for the purpose of processing the instructions contained in the software or (as the case may be) the documentation.
- This Agreement
This Agreement governs use of the Service unless otherwise stated herein.
Under the terms of this agreement, Company grants Customer one non-cancelable, non-transferable, non-exclusive license to use the Service for the specified time period.
Prior to initial license activation and also prior to any license renewal, Customer agrees to pay the then-current (or otherwise quoted) one time non-refundable fee for the selected license. Payments shall be made in U.S. dollars either by check, pre-authorized bank transfer, or pre-authorized credit card.
- Ownership and rights
All information and materials supplied by Company in connection with this Agreement, including without limitation the Company's software and technology, databases, data, design tools, authoring tools, search engines, documentation, computer languages, source code, object code, methods, methodologies, algorithms, graphics, text, images, and other information, data, content, materials, and services, and all rights, title, and interests in all copyrights, trademarks, patents, trade secret rights, and other intellectual and proprietary rights relating to the Service, shall at all times be and remain the property of Company and its successors and assigns. Company shall be the sole owner of all copyrights, trademarks, patents, trade secret rights, and other intellectual and proprietary rights in and to any invention, development or innovation conceived or developed independently by Company during the Term of this Agreement and in the performance of the Service, and any and all derivative works, enhancements, or modifications to any of the above.
- Certain Obligations
- Customer agrees that the information and materials made accessible to it through the use of the Service are intended for Customer's sole use and that, without the prior written permission of the Company, such information and materials may not be redistributed or published in any form outside Customer's organization. In connection therewith, Customer may view, display, and download information for use subject to the terms of this Agreement, provided all copyright and other proprietary notices are kept intact. Any other use of the materials or information in connection with the Service is prohibited without the prior written permission of Company. Customer may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit any of the materials or information provided in connection with the Service, in whole or in part. Customer further agrees that any person within its organization who receives any information derived or attributed to the Service shall be informed of all restrictions hereunder.
- Customer acknowledges that Customer proprietary information that the Customer introduces into the system will be used throughout the system to effectuate the purpose of the service. If Customer introduces proprietary information into the system it will only be used at the direction of the Customer. Customer grants Company a royalty-free perpetual license and right to reproduce, distribute, translate, archive and create derivative works of the content in order to use in connection with the promotion and administration of the Customer’s collection within the Service. Customer shall retain sole ownership of the underlying information uploaded or otherwise provided to Company in connection with the Service, including without limitation all recognized intellectual property rights therein, provided, however, that Customer acknowledges that it has no rights in or ownership of any proprietary software, assets, or intellectual property of Company. Company shall not reuse or resell any of Customer's information that is confidential to Customer and not generally available for third party use or disclosure, without Customer written consent. Customer is in agreement that Company will generate and collect certain Customer user activity tracking information for the use of reporting user activity to the Customer and for improving the Company product/service. Customers that use the Service are solely responsible for the accuracy of all style and collection information submitted by them for inclusion in the Service.
- Customer shall maintain in good working order all software and hardware required for its access to the Service or the System, and it shall use any software or hardware provided by Company only in accordance with the proper use requirements set forth in the applicable documentation and licenses. Customer is responsible for obtaining any and all necessary software licenses required to use the Service. Company shall not be responsible for any delay in, or inability to perform, the Service that is the direct result of Customer's failure or delay in the performance of its obligations.
- ID and Password Procedures
- Company shall provide Customer with a unique identification code ("ID") and a unique password ("Password") for its authorized user (the "User"), as may be amended from time to time by Customer. User may be allowed or required to change Passwords from time to time. Company shall have no responsibility for controlling or monitoring the use of such Passwords and no liability for any use of such Passwords. Customer shall be solely responsible for maintaining the accuracy of the information provided to Company as to authorized User.
- Customer shall take such actions as are necessary to maintain the confidentiality of, and prevent the unauthorized use of ID and Password. Customer agrees to notify Company immediately if it determines, or has reason to believe, that an unauthorized party has gained access to an ID or a Password.
- Customer hereby authorizes Company and any party claiming through Company, including without limitation its customers and other third parties, to rely upon any information and/or instructions set forth in any data transmission using the assigned ID and Password, and of the information regarding the User provided to the Company, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Service. Use of the assigned ID or Password, whether or not authorized by Customer, shall be solely its responsibility, and Customer shall bear the full risk of any loss in connection therewith.
- Customer hereby assumes sole responsibility and liability for the accuracy and adequacy of information entered on the Service using both an ID and a Password assigned to User, and for all actions taken in connection with the Service. If Customer notifies Company of an unauthorized use of its ID and Password, Company will make reasonable efforts to assist Customer to try to cancel or correct the results of any such unauthorized actions; provided, however, that that Company shall have no liability for any failure to cancel or correct the results of any such unauthorized actions.
- Lawful Use
- Customer shall not post or transmit into the System any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law;
- Customer shall not knowingly post or transmit into the System any information or software which contains a virus, cancelbot, Trojan horse, worm or other harmful component.
- Customer shall not knowingly upload, post, publish, or transmit into the System any information which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without the permission of the copyright owner or rights holder.
- Customer shall comply with all federal, state, local, and foreign laws, rules, and regulations in connection with the subject matter of this Agreement. Customer assumes full responsibility for monitoring whether its transactions using the Service are in compliance with all such laws, rules, and regulations.
- Company warrants to Customer that the service (i) shall perform in all material respects as described in the applicable documentation, (ii) does not contain any virus or any other contaminant that may alter, disrupt or otherwise interfere with Customer's use of the service or any other software, data, or information, and (iii) shall be provided in a manner consistent with professional and industry standards by personnel with the required training, background, and experience to provide such service.
- The warranties above are exclusive and in lieu of and company disclaims all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. Company does not warrant that the applications will operate in combinations other than as specified in the documentation or that the operation of the applications will be uninterrupted or error-free. The company expressly does not warrant the use or operation of any software, hardware, or other product, good, or service manufactured, developed, or provided by any third party.
- From time to time, Company may provide Customer with information from third party information, content, or service providers, and may provide referrals or Internet links to service providers. Such information, referrals, and Internet links are provided only for Customer's information and convenience, and Customer acknowledges and agrees that Company is not responsible for any such information, content, or service. A link to another website does not constitute an endorsement of that site nor of any product or service on such site. Company makes no representation and disclaims any warranty that any such Information, content, or descriptions of service is true, complete, or accurate. All such Information, content, and services are provided on an "AS IS" basis without any warranty of any kind.
- Term and Termination
- The Agreement shall remain in effect for the period specified in the Agreement ("Initial Term"), unless earlier terminated as provided herein.
- Unless otherwise notified at least 30 days before the end of the initial license term, all licenses automatically roll over at the end of the initial Agreement term into a new license with the same agreement term. The initial price for all renewed licenses will be at the best respective price break then offered to the public for each type of license.
- License Early Termination: Customer acknowledges that the amount of the pre-paid non-refundable license fee is based upon customer's agreement to continue with the contracted license for the full period. If the contract is terminated earlier than full-term by either party, there will be no refund of payments previously made.
- Contract Renewals: If payment for any subsequent contract renewal is unable to be processed before the termination of the then current contract, the entire service may be discontinued.
- Company may, at its sole election, terminate the Agreement and/or temporarily suspend Customer's rights or license to access the Service or the System in the event Customer breaches or violates any material obligation described herein and fails to cure such breach within ten (10) days following receipt of written notice thereof. If Customer fails to pay Company in accordance with the payment terms of the Agreement, Company shall give Customer notice by E-mail. Failure to cure non-payment within ten (10) days gives Company the right to terminate.
- Customer may terminate the Agreement in the event Company breaches or violates any material obligation described herein, and fails to cure such breach within ten (10) days following receipt of written notice thereof. In such event, Customer shall be entitled to a refund of any pre-paid amounts for Services which were to occur after the date of termination, such refund to be paid to Customer within thirty (30) days following the date of termination.
- Upon any termination or expiration of the Agreement, each party shall return to the other all papers, materials, and other properties of the other party then in its possession, including but not limited to Confidential Information. Company reserves the right to add to, delete or change this Agreement at any time. As such, you should check this Agreement online from time to time for such changes.
- If you purchase Services, you agree to do so in accordance with Company's online License Agreement as well as any other hard-copy License Agreement executed by both parties.
- Representations: Customer represents to Company that you have the full power and authority to enter into and perform under this Terms of Service Agreement.
- Limitation of Liability
- Neither party shall be liable to the other party for any consequential, special, incidental, punitive, exemplary, or indirect damages, arising out of or related to the agreement, Company shall not be liable to Customer or any of its directors, officers, owners, attorneys, employees, parents, or subsidiaries for any amounts arising out of or related to the Agreement in excess of the lesser of (i) the amount of actual loss or damage suffered by the Customer, or (ii) the total amount of fees paid by Customer to Company pursuant to the Agreement, in the six month period immediately preceding such loss or damage. In the event any of the above limitations of liability are not allowed by law, the liability shall be limited to the maximum extent permitted by law.
- Customer hereby acknowledges and agrees to accept the risk that the Service, the System, and any information of Customer or any other party on the System, from time to time may contain inaccuracies and may be adversely affected by incorrect information or system malfunctions or shut-downs; provided, however, that Company shall use commercially reasonable efforts to correct any inaccuracies expressly made known to it and to correct system malfunctions and shut-downs that are within its control. Company shall not be liable for any liability, loss, damage, cost or expense caused from error, omission, interruption, deletion, defect, delay in operation or transmission, communication or line failure, or destruction, flood, fire, earthquake, power outage, Acts of God, or any accident or incident that is not the result of actions by Company or its other users (a "Force Majeure Event"). In any such Force Majeure Event, Company shall continue to perform all Services to the extent commercially reasonable under the circumstances. Company shall immediately notify Customer of a Force Majeure Event.
- Company shall defend, indemnify and hold Customer and its respective officers, directors, agents and employees (the "Indemnified Parties") harmless, from any proceeding brought against an Indemnified Party by a third party for any violation of a legally protected right of such third party, arising out of the assignment of or use by Customer of the System and Services. Such indemnification shall be conditioned upon (i) Company having sole control of the defense of any such action, claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires contribution from the Indemnified Parties or any use or mention of the Indemnified Parties' name must be approved by the Indemnified Parties (such approval not to be unreasonably withheld); and that (ii) the Indemnified Parties shall cooperate with Company in a reasonable way to facilitate the settlement or defense of such claim or demand. Notwithstanding the above, Company shall have no obligation to indemnify the Indemnified Parties to the extent that such claim is Customer's responsibility as specified below.
- Customer hereby agrees to indemnify, hold harmless at Customer's expense and defend Company and its officers, directors, agents and employees from and against any and all claims asserted against Company by a third party to the extent such claims allege infringement of such third party's intellectual property rights by Company as a result of Company's hosting of Customer provided data and materials on the System if there would be no infringement but for the use of such Customer provided data and materials.
All notices, requests, demands, waivers, and other communications required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, certified, or registered mail with postage prepaid, or sent by facsimile, or sent via a nationally recognized overnight courier services to the respective executors of this agreement. Either party may modify its address, fax number or Contact Person by giving written notice as provided herein.
- Entire Agreement
This Agreement contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements, negotiations, and discussions, whether oral or written, between the parties. Each party hereto acknowledges and warrants to the other party that no promise, representation, or inducement not expressly contained herein has been made or offered, and that the Agreement is executed without reliance on any promise, representation, or warranty not expressly contained herein.
- The Agreement shall not be modified in any other way except by a written agreement signed by the parties hereto.
No term or condition of the Agreement shall be waived except by a writing signed by all parties hereto. Failure to enforce any provision of the Agreement by a party shall not constitute a waiver of any term or condition hereof by such party. Waiver of any one provision of the Agreement shall not constitute a waiver of any other provision herein.
If any term, provision, covenant or restriction of the Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
- Unless otherwise specified, all documentation, whether hard-copy or electronic will be in English only. The original of the Agreement has been written in English and the governing language of the Agreement shall be English.
- Company and Customer expressly agree that any and all disputes, claims or litigation arising from or related in any way to the Agreement shall be resolved exclusively by the courts of the State of California, USA.
(END OF TERMS OF SERVICE)