Terms and Conditions

Each Order forms a separate Contract which incorporates these Terms and Conditions (and the documents referred to therein) and these Terms and Conditions govern each Order. If there is any conflict between these Terms and Conditions and any Order, the Order will take precedence, except that any standard preprinted terms and conditions of a purchase order will not apply.

Orders are deemed to have been accepted when both parties have signed the Order or, in the case of orders placed electronically via the 3D360 Systems, when 3D360 Systems confirms acceptance in writing, at which point and on which date the Contract will (unless specified otherwise in an Order) come into existence. Any quotation given by 3D360 Systems is not binding and does not constitute an offer.

3D360 Systems will provide the Customer with the Software and Services as set out in the Order, in accordance with the Service Levels. The Software and Services are either provided directly or via its Affiliates or subcontractors.

3D360 Systems will use reasonable endeavors to meet any performance dates specified in an Order, but any such dates will be estimates only and (unless otherwise specified in an Order) time will not be of the essence for delivery of the Software or performance of the Services.

In consideration of the fee paid by the Customer to 3D360 Systems for the same, 3D360 Systems grants to the Customer a non-exclusive, non-transferable, limited license for the term of the Order, to use the Software, including software made available by 3D360 Systems to access the Services, in accordance with this Agreement, solely as specified in the Order. Customer has no right (and shall not permit any third party) to distribute, copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part. In conjunction with the Services, the Customer may be permitted to use certain software (including related support, maintenance, and documentation) developed, owned, or provided by third parties or their licensors. Use of such software may be subject to third party terms and conditions.

The Customer will not:

1. sub-license, assign or novate the benefit or burden of the license granted in Clause 3.3 in whole or in part;
2. allow the Software to become the subject of any charge, lien or encumbrance;
3. deal in any other manner with any or all of its rights and obligations under this Agreement, and
4. use the Software other than on the designated equipment (including the volumes) specified in the Order.

The Customer will:

1. ensure that the terms of the Order, the Software and the Services meet its particular needs;
2. provide 3D360 Systems with all reasonable assistance and information for 3D360 Systems to provide the Software and Services, and ensure that such information is complete and accurate;
3. obtain and maintain all necessary licenses, permissions, and consents which may be required for the Software and Services before the date on which the Software and Services are to start and which may be required thereafter;
4. be liable to 3D360 Systems for any acts of unauthorized use of, or access to the Software or Services, regardless of whether the activities are undertaken by Customer, its employees, or any third party, unless 3D360 Systems acts or omissions led to such unauthorized use or access;
5. inform 3D360 Systems as soon as reasonably possible on becoming aware of any unauthorized use of, or unauthorized access to, the Software and Services and will use reasonable endeavors to aid in any investigation or legal action that is taken by authorities and/or 3D360 Systems to investigate and resolve the incident;
6. at the written request of 3D360 Systems, promptly supply to 3D360 Systems all information reasonably necessary to establish whether a breach of any part of the Contract has occurred;
7. comply with the terms of the Acceptable Use Policy, Data Protection Policy and Non-Circumvention Policy as made available by 3D360 Systems;
8. comply with all applicable law in relation to the receipt and use of the Software and Services; and
9. take full responsibility and accept all liability under all applicable laws in respect of the use it makes of the Software and Services and the results it achieves from them, including complying with all applicable regulations concerning data protection and artificial intelligence.

The Customer will not use the Software and Services, nor permit them to be used:

1. for any purpose that is unlawful or prohibited under any applicable law or regulation or prohibited by these Terms and Conditions;
2. to commit any act of fraud, money laundering or data falsification;
3. for the mining of any cryptocurrency without the prior written consent of 3D360 Systems;
4. to create, store, access, transfer to any third party or otherwise distribute any code or device intended to interfere with, or having the effect of interfering adversely with, the operation of any hardware or software, including any virus, disabling code (including code intended to limit or prevent any use any software or system) or other malicious software (including bugs, worms, logic bombs, malware, trojan horses, ransomware and spyware), or any other material which is unlawful;
5. for purposes of promoting unsolicited advertising or sending spam;
6. to simulate communications from 3D360 Systems or another service or entity in order to collect identity information, authentication credentials, or other information (e.g. phishing);
7. in any manner that disrupts the operations, business, equipment, websites or systems of 3D360 Systems or any other person or entity (including any denial of service and similar attacks);
8. in any manner that harms or may endanger minors or any other person;
9. in connection with any service, use or purpose where the failure of the Services (or any part) may endanger the health or life of any person or cause damage or loss to any tangible property or the environment;
10. to gain unauthorized access to or use of any computers, data, systems, accounts or networks of any person, including attempting to probe, scan, or test the vulnerability of a system;
11. to re-sell, export, re-export, transfer, divert, or otherwise dispose of the Software and Services without 3D360 Systems’ prior written consent.

If 3D360 Systems’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

1. without limiting or affecting any other right or remedy available to it, 3D360 Systems will have the right to suspend the Software and performance of the Services where reasonably required until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays 3D360 Systems’ performance of any of its obligations;
2. 3D360 Systems will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from 3D360 Systems’ failure or delay to perform any of its obligations as set out in this Clause 4; and
3. the Customer will reimburse 3D360 Systems on written demand for any costs or losses sustained or incurred by 3D360 Systems arising directly or indirectly from the Customer Default.

Customer will pay the Fees by the payment dates set out in each Order. Unless otherwise stated in an Order all Fees are payable in advance. The Customer will not withhold payment of Fees for any reason and timely payment will be of the essence.

Unless expressly stated otherwise in the Order, all Fees are non-cancellable, non-refundable, payable in U.S. Dollars, and will be paid in full (without any set off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law)) in cleared funds to a bank account nominated by 3D360 Systems.

Where Fees are charged:

1. on a per-minute or per-hour basis: the Customer may be required to deposit sufficient funds with 3D360 Systems in advance. Access to such Services (and corresponding Software in the Order) may cease if the Customer account with 3D360 Systems has insufficient funds or otherwise fails to meet the payment terms; or
2. on a subscription basis: the Services will renew automatically unless the Customer cancels its subscription before renewal (either directly in the Customer account with 3D360 Systems or by contacting the 3D360 Systems support team). If the Customer cancels its subscription before renewal: (a) the Services will continue until the end of the current subscription term; and (b) Customer will not receive a refund for any Services already paid for.

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of sales taxes, VAT or other similar taxes chargeable from time to time. Where any taxable supply for sales tax or VAT purposes is made under the Contract by 3D360 Systems, the Customer will, on receipt of a valid invoice from 3D360 Systems, pay to 3D360 Systems such additional amounts in respect of sales tax or VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

For credit card payments, payment is handled by a third party. The Customer’s credit card statement may identify payments as made to “3D360 Systems” or “Stripe”. Customer is responsible for any foreign transaction fees incurred by the Customer’s bank. Customer will abide by any relevant terms and conditions or other legal agreement, whether with 3D360 Systems or a third party, that governs the Customer use of a given payment processing method. 3D360 Systems may add or remove payment processing methods at its sole discretion and without notice to the Customer. Once an Order is placed, 3D360 Systems or its third-party payment processor will charge Customer’s credit card or other form of payment, along with any additional applicable amounts (including any taxes). Customer is solely responsible for all amounts payable associated with purchases made in accordance with an Order. The Customer will be charged at the rate applicable at the time of use.

If the Customer fails to make a payment under the Contract by the due date, then, without limiting 3D360 Systems’ other remedies the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 10% a year.

For a renewal term, 3D360 Systems may increase the fees by providing no less than 30 days notice in writing, by the greater of (i) 3% compounded annually over the duration of the immediately preceding term for the individual Service, or (ii) the percentage rate of increase for the same period in the Consumer Price Index or, if such index is not available, such other index as the parties may agree most closely resembles such index.

3D360 Systems will, as between the parties, retain ownership of all Intellectual Property Rights in the Software and Services, and in any materials created by 3D360 Systems (or anyone acting on its behalf) in the course of providing the Software and Services, whether those materials are provided to the Customer or not. The Customer will execute all such documents and do such things as 3D360 Systems may consider necessary to give effect to this Clause 6.1. Except as expressly stated in these Terms and Conditions, these Terms and Conditions do not grant the Customer any rights to, or in, any Intellectual Property Rights or any other rights or licenses in respect of Software and Services.

The Customer will, as between the parties, retain ownership of all Intellectual Property Rights in Customer Data. Subject to the provisions of these Terms and Conditions, 3D360 Systems will not access any Customer Data in relation to the Services unless the Customer has given its prior written consent.

Each party agrees that it may use the other party’s Confidential Information only in the exercise of its rights and performance of its obligations under the Contract and that it will not disclose the other party’s Confidential Information including all know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this Clause 7.

Each party may disclose the other party’s Confidential Information to those of its employees, officers, group companies, actual and potential lenders and investors, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under the Contract provided that the disclosing party will ensure that each of its employees, officers, advisers or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this Clause 7 as if it were a party.

Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction. To the extent permitted by law, Customer will provide 3D360 Systems with notice prior to disclosing any information pursuant to this Clause 7.3.

Unless stated otherwise, each party will be an independent data controller in respect of personal data collected, received and processed in connection with the exercise and performance of its rights and obligations under the Contract.

Unless otherwise approved in writing by 3D360 Systems in advance, the Customer is not permitted to use the Software and Services to process or upload any personal data. If the Customer requires 3D360 Systems to process any personal data as part of the Software and Services, the Customer will notify 3D360 Systems in writing and will, in accordance with the directions of 3D360 Systems, enter into a suitable data sharing agreement.

Subject to Clause 8.2, 3D360 Systems will have no liability to the Customer under the Contract in relation to any processing of personal data via the Software and Services.

The Customer may specify the region in which Customer Data will be stored. The Customer consents to the storage of Customer Data in, and transfer of to, the regions selected. 3D360 Systems will not access or use Customer Data except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.

Each party represents and warrants to the other that it has full power and authority to enter into and perform its obligations under the Contract.

The Customer represents and warrants that, during the term of the Contract and for 12 months following the expiry or termination of the Contract, the Customer will: (i) make all payments for the Software and Services directly to 3D360 Systems and will not circumvent the payment methods offered by 3D360 Systems; and (ii) not attempt to contact, communicate, or enter into a contract with any supplier of 3D360 Systems or its Affiliates with a view to using the Software and Services (or similar services) without 3D360 Systems. The restrictions in this Clause 9.2 will not apply in circumstances where, and to the extent that, the Customer and 3D360 Systems’ supplier entered into a contract for services similar to the Services prior to entering into the Contract.

3D360 Systems warrants to the Customer that: (i) it has the right, power and authority to grant the Customer the rights set out in the Contract and to provide the Services in accordance with the Service Levels; (ii) the Services will be provided using reasonable care and skill; (iii) use of the Services will not infringe the Intellectual Property Rights of any third party and (iv) the Services will, under normal operating conditions, substantially conform to the functionality described in the Order; and (v) 3D360 Systems will not materially decrease the overall security or functionality of the Services. 3D360 Systems does not warrant that the use of the Services will be uninterrupted or error-free. Customer acknowledges that any Software provided by 3D360 Systems is provided “as is”. 3D360 Systems does not guarantee that the use of the Software will be uninterrupted or error-free.

3D360 Systems is not responsible for any delays, delivery failures, technical issues or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Other than as set out in these terms and conditions, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.

3D360 Systems will have the right to suspend the Services (in whole or part) without liability and upon reasonable written notice to the Customer if: (a) there is a security threat; (b) payment of Fees are not made on time; (c) doing so is necessary to maintain compliance with any applicable law; or (d) the Customer is in breach of these Terms and Conditions.

If 3D360 Systems delivers a written notice requiring the suspension of Services pursuant to Clause 12.1, both parties agree to act reasonably and promptly discuss in good faith: (a) mitigation measures by both parties; (b) the foreseeable duration of such suspension; and (c) the impact, if any, on timelines and costs relating to the Services.

In the event of such a suspension: (a) 3D360 Systems will not be liable for any loss or damage to the Customer including any liability it may incur to third parties; (b) no such period will be taken into account in calculating any Service Levels; (c) 3D360 Systems will be entitled to charge and be paid all Fees that would have otherwise been due.

Without affecting any other right or remedy available to it, 3D360 Systems may terminate the Contract with immediate effect by giving written notice to the Customer if:

1. the Customer commits breach of Clauses 4.2 (prohibited uses) or 14 (Compliance), or other material breach and such breach is in 3D360 Systems’ opinion irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
2. the Customer has failed to pay any amount due under the Contract and such amount(s) remains unpaid after the Customer has received notification that the payment is overdue;
3. the Customer has failed to pay any amount due in advance of the commencement of Services;
4. the Customer is the subject of an Insolvency Event (as defined herein); Insolvency Event means (a) being a company, is deemed unable to pay its debts within the meaning of any applicable law (without any requirement to prove a matter stated therein to a court) or any meeting is convened for the purpose of considering a resolution for, or any application or petition is presented or any other step is taken for the purposes of making an administration order against it, or for the appointment of an administrator over it, or for the winding-up or dissolution of it; (b) has a receiver, manager or trustee appointed over, or any encumbrancer takes possession of, the whole or any part of its business or assets; (c) has taken any steps with a view to proposing or entering into any composition, compromise, voluntary arrangement or any analogous procedure involving the party and its creditors or any class of them; (d) suspends or ceases to carry on business or any material part of its business; (e) applies to court for, or obtains, a form of insolvency moratorium under any applicable law; or (f) an event occurs which is analogous to any of the foregoing events anywhere in the world;
5. it becomes unlawful for 3D360 Systems to provide all or any part of the Services to the Customer under applicable law; or
6. the Customer suspends or ceases, or threatens to suspend or cease, carrying on business, or its financial position deteriorates so far as to reasonably justify the opinion that its ability to perform its obligations under the Contract is in jeopardy.

Without affecting any other right or remedy available to it, the Customer may terminate the Contract with immediate effect by giving written notice to 3D360 Systems if 3D360 Systems commits a material breach and fails to remedy that breach within a period of 30 days after being notified in writing to do so.

Upon termination or expiry of the Contract for any reason:

1. the obligation on 3D360 Systems to provide the Software and Services and any rights and licenses granted by 3D360 Systems under the Contract will immediately terminate and Customer Data may be deleted;
2. the Customer must cease all activities authorised under the Contract;
3. the Customer will immediately pay all sums outstanding to 3D360 Systems;
4. each party will return to the other party and make no further use of any materials, software or other items whatsoever (or of any copies of them) belonging to the other party and/or provided by it pursuant to the Contract; and
5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach which existed at or before the date of termination will not be affected or prejudiced.

Termination or expiry of the Contract will not affect those provisions which expressly or by necessary implication are intended to survive termination.

Each party will comply, and is solely responsible for its compliance, with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to U.S. companies and persons, economic sanctions programs implemented by the Office of Foreign Assets Control and other U.S. government agencies, AML and KYC requirements to which the Customer is subject, and any applicable laws and regulations in the jurisdictions in which it conducts business, all of which the Customer represents and warrants it is currently in compliance with. The Customer is solely responsible for compliance related to the manner in which it chooses to use the Services, including the transfer and processing of Customer Data. The Customer represents and warrants that it and its financial institutions, and any party that owns or controls the Customer or its financial institutions, are not subject to sanctions, located, or conducting business in any country that is subject to sanctions, or otherwise designated on any list of prohibited or restricted parties or countries, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g. the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the United Kingdom, the European Union or its Member States, Switzerland, or other applicable government authority.

Each party will cooperate and assist upon request by the other party with any and all dealing with any relevant regulatory authority and will otherwise cooperate with any regulatory authority in relation to the Contract.

Announcements. Customer agrees that 3D360 Systems may refer to the Customer being a customer of 3D360 Systems for marketing purposes, including by displaying Customer’s company (or trading) name, logo and/or any other non-confidential company information on 3D360 Systems’ website or in any other promotional material. As a condition of use of the Services, Customer agrees not to use 3D360 Systems’ trade marks, logos or trade names in any manner, without consent in writing.

Non-solicitation. During the term of the Contract and for 12 months following the term of the Contract, the Customer agrees that, other than by means of a general recruitment exercise open to all applicants and not specifically targeted at any of the personnel of 3D360 Systems (or its Affiliates), the Customer will not, without the prior written consent of 3D360 Systems: (a) directly or indirectly, solicit the employment of, employ, or contract with, any personnel of 3D360 Systems or its Affiliates; or (b) assist (or instruct) a third party in the employment, contracting, or subcontracting of any personnel of 3D360 Systems or its Affiliates.

Force majeure. If 3D360 Systems is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (as defined below), 3D360 Systems will not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations will be extended accordingly. 3D360 Systems will: (i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and (ii) use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations. 3D360 Systems will be entitled to charge and be paid all Fees that would have otherwise been due. Force Majeure Event means any circumstance not within 3D360 Systems’ reasonable control, including: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; (f) collapse of buildings, fire, explosion or accident; (g) nonperformance by suppliers or subcontractors (other than by companies in the same group as 3D360 Systems); and (h) interruption or failure of utility, data center, or internet service.

Assignment, subcontracting and other dealings. The Customer will not, without the prior written consent of 3D360 Systems, assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under the Contract. 3D360 Systems may at any time assign, novate, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract upon notification (and the Customer provides its advance consents to any such dealing), including as security or collateral in relation to any financing.

Variation. No variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorized representatives), save that 3D360 Systems may vary the Contract if necessary to comply with any applicable law or regulatory requirement (and any such variation will become effective upon written notification to the Customer).

Waiver.

1. A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
2. A failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms and Conditions or by law will prevent or restrict the further exercise of that or any other right or remedy.
3. Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of these Terms and Conditions, and the parties will negotiate in good faith a replacement provision.

No partnership or agency. Nothing in these Terms and Conditions is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

Notices. A notice given to a party under or in connection with the Contract will be in writing and sent to the party at the address or email address given in the Contract or as otherwise notified in writing to the other party, as the case may be. If a notice is sent by post, it is deemed delivered at 9am on the second business day after posting. If a notice is sent by email or other electronic means, it is deemed delivered at the time of transmission. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Third party rights. Except as otherwise stated herein, these Terms and Conditions do not give rise to any rights for a third party to enforce any provision of the Contract. The rights granted to 3D360 Systems in these Terms and Conditions will be enforceable by any Affiliate or any funder of an Affiliate that has a security interest in 3D360 Systems.

Entire agreement. The Contract constitutes the entire agreement between the parties. These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or an Order. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.

Except as otherwise stated in clause 17.2, the Contract and any non-contractual obligations arising from it will be governed by and construed in accordance with the laws of the United States of America. The parties will refer any dispute or claim arising under the Contract for final resolution by arbitration administered in Orange County of the State of Florida in accordance with Florida’s laws, except when a party seeks immediate injunctive relief that would not be reasonably effective unless obtained in the jurisdiction of the conduct at issue. The tribunal shall consist of three arbitrators. The language of the arbitration shall be English.

If the Contract is entered into with 3D360 Systems Inc., then the Contract and any non-contractual obligations arising from it will be governed by and construed in accordance with the laws of the State of Florida (USA). The parties will refer any dispute or claim arising under the Contract for final resolution by arbitration in Orlando City, FL to the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, except when a party seeks immediate injunctive relief that would not be reasonably effective unless obtained in the jurisdiction of the conduct at issue. The tribunal shall consist of three arbitrators.

The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Contract.