Last updated: 9 April, 2019
THINGS3D LIMITED (“T3D”, “our”, “we” or “us”) provides app-development and related software constituting the Emcore3D SDK (the “Software”) provided through or in connection with our website, accessible at emcore3d.com (collectively, the “Site”). Except to the extent you and T3D have executed a separate agreement, these terms and conditions exclusively govern your access to and use of the Software and Site (collectively, the “Services”), and constitute a binding legal agreement between you and T3D (the “Terms”). These Terms are, collectively, the “Agreement.”. By accepting or agreeing to the Agreement on behalf of a company or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity. You acknowledge and agree that, by accessing, purchasing or using the services, you are indicating that you have read, understand and agree to be bound by the agreement whether or not you have created a emcore3d account, subscribed to the emcore3d newsletter or otherwise registered with the site. If you do not agree to these terms and all applicable additional terms, then you have no right to access or use any of the services.
1 Emcore3D Account In order to use the Services, you must register for a “Emcore3D Account”. To create a Emcore3D Account, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. T3D reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your account, whether or not you have authorised such activities or actions. You will immediately notify T3D of any unauthorised use of your account. You may cancel your T3D Account at any time by sending an email to firstname.lastname@example.org. Canceling your T3D Account does not relieve you of the obligation to pay any and all remaining amounts owing for your existing Software license fees.
2 Rights to use the Emcore3D Software
2.1 User Rights. Conditioned upon your compliance with the terms and conditions of this Agreement and payment of all applicable license fees, T3D grants you a non-exclusive, non-transferable, royalty-free license to include the Software inside your software application(s) (the "Project(s)") during the Software Term over the 3 license tiers namely a) Free - whereby there will be a watermark displayed by the Software when used in the Project(s) which may not be deployed live in the Apple App Store b) App - whereby usage is restricted to a named Project(s) with no watermarks of the Software during runtime c) Company - whereby an unlimited number of Project(s) can be deployed with no watermarks of the Software during runtime as long as all Project(s) are developed and published directly by the named Company. If the named Project(s) is developed by the Company on behalf of a third party entity, this constitutes an exception to this tier and a separate App or Company tier license is required (this license is called the “Emcore3D License”). If you are a Legal Entity, you may allow affiliated entities or third party contractors who are testing, developing and operating your Project(s) on your behalf, to exercise your rights on your behalf. In all cases you remain responsible for these parties’ compliance with the terms and conditions of the Agreement or any breach thereof. All use of the Software, including any third party exercise of your rights under this paragraph, is subject to this Agreement, including any restrictions set forth below, and you may not otherwise allow third parties to use the rights granted in this Agreement.
2.2 Third Party Software. The Software incorporates Third Party Software governed by separate terms, namely FBX by Adobe for 3D animation support whose terms are located here (https://www.autodesk.com/developer-network/platform-technologies/fbx) You agree that you have reviewed and accepted those terms and that your use of the Software will be deemed acceptance thereof.
3. Your Responsibilities
3.1 Eligibility You must be at least 18 to purchase the Services. If you are under the age of 18 or whatever is the age of legal majority where you access the Services, you may purchase access to the Services only with the involvement of your legal guardian, and you represent and warrant that your legal guardian has read, understood and accepted this Agreement.
3.2 Legal Restrictions You represent and warrant that: (a) you have the legal capacity to agree to the Agreement; (b) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department's list of Specially Designated Nationals; and (c) you will comply with all applicable laws and regulations in connection with your use of the Services (including but not limited to applicable Federal Trade Commission rules and COPPA), and in accordance with the terms and conditions specified in the Agreement.
4.1 Fees Fees for certain Services are set forth on the Site. T3D may increase, modify or add new fees and charges for any of the Services from time to time by posting such changes to the Site. You agree to pay all amounts due for the Services as set forth in the Site and in accordance with T3D’s payment terms and, if applicable, those of any payment processor. If any payment is not made on time, T3D will not deliver the licence key required to activate the Software. Payments made under the Agreement shall be made without deduction or set-off for any withholding taxes, levies, imports, duties, charges and/or fees imposed by any governmental taxing authority except as required by law. If you are compelled to make any such deduction, you will pay to T3D such additional amounts as are necessary to ensure T3D’s receipt of the full amount that T3D would have received but for the deduction. You will be responsible for, and agree to promptly pay, all taxes or duties of any kind (including but not limited to sales, use and withholding taxes) associated with any purchase or your receipt or use of the Services, except for taxes based on T3D’s net income. In the event that T3D is required to collect any tax for which you are responsible, you will pay such tax directly to T3D or its payment processor. T3D reserves the right to collect any applicable sales, use or value added tax. All sales are final and there shall be no refunds except as required by law. Further, T3D will not allow changes to your purchase after you complete it. T3D may disable all copies of the Software and/or your access to any Services you have licensed or subscribed to in the event the payment made is cancelled or cannot be collected. You acknowledge and agree that, in the case of certain Services, any estimates of fees and charges provided to you by T3D (whether based on assumed data consumption or otherwise) are solely estimates based on assumptions and that you are fully responsible for the actual fees and charges that accrue.
5.1 Gambling Restriction You may not develop, distribute or publish any of your Project(s) in connection with any Gambling Activities without a separate license agreement from T3D. Please contact email@example.com.
5.2 General Restrictions Except as expressly specified in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify or create derivative works of the Software; (b) distribute, transfer, sublicense, lease, lend, rent or otherwise provide access to the Software to any third party; (c) directly or indirectly make the functionality of the Software available to multiple users or third parties through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service; (d) use the Software for competitive analysis or to develop a competing product or service; or (e) do anything that could cause or result in the Software (including the runtime portion thereof) being subject to any open source license (or similar license) that requires as a condition of use, modification or distribution that the Software (including the runtime portion thereof) or other software combined or distributed with the Software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, are confidential and constitute or contain trade secrets of T3D and its licensors. Accordingly, you agree not to disassemble, decompile, modify or reverse engineer the Software, in whole or in part, or permit or authorise a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition.
7. Support You may access the online forums and the Emcore3D knowledge base through the Site. You may also email firstname.lastname@example.org for assistance with your license. Technical support may be offered by T3D at its sole discretion. You acknowledge and agree that T3D has no obligation under this Agreement to provide patches, updates, new releases or new versions of the Software.
8. Software Term License fees for App and Company tiers will remain in effect for in perpetuity. License fees are not cancelable and are non-refundable.
9. Export Law You agree to comply fully with all export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
10. Modifications T3D may update these Terms at any time for any reason and without notice (the “Updated Terms”) and those Updated Terms will apply to the most recent current-year version of the Software. If material modifications are made to these Terms, T3D will endeavor to notify you of the modification. If a modification is required to comply with applicable law, the modification will apply notwithstanding this section. Except as explicitly set forth in this paragraph, your use of any new version or release of the Software will be subject to the Updated Terms applicable to that release or version. You understand that it is your responsibility to maintain complete records establishing your entitlement to Prior Terms. T3D reserves the right, at its sole discretion, to modify, discontinue or terminate the Services. T3D may also modify the Agreement at any time and without prior notice. If we modify the Agreement, we will post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last updated” date at the top of these Terms. By continuing to access or use the Services after we have provided you with notice of a modification, you indicate that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
11. Intellectual Property Rights
11.1 T3D’s Ownership The Software and Site are protected by copyright, trademark, and other laws of the United Kingdom and foreign countries. Except as expressly provided in the Agreement, T3D and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
11.2 Your Content As between you and T3D, you own all right, title and interest (including, all intellectual property rights) in and to the content you create using the Software and/or any content you post to the Site (collectively, “Your Content”) (other than any components of the Software contained therein or used in connection therewith).
11.4 Copyright Policy T3D fully respects copyright law and expects its users to do the same. T3D will terminate any Account where the account holder repeatedly infringes or is believed to be repeatedly infringed the rights of copyright holders.
11.5 Proprietary Rights Notices All trade names, trademarks, logos and any other proprietary designations of T3D used herein are trademarks or registered trademarks of T3D. Any other logos, trademarks, service marks, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
12. Compliance To ensure that you are adhereing to the terms of this Agreement, you agree that within fourteen (14) days from the date of T3D or its authorized representative’s request, you shall provide all records and information requested in order to verify that your installation and use of any and all Services is in compliance with the Agreement along with a signed verification that all such information is correct. Furthermore, if you are a Legal Entity, T3D or its authorized representatives may (upon reasonable prior notice) access and inspect your facilities and systems in order to review and/or verify your compliance with the Agreement. Any such inspection shall be conducted during regular business hours at your facilities or electronically via remote access. In the event you have used the Software without permission or have not paid the applicable fees for all Services you have deployed or used, you agree to immediately pay for such Services, as well as the reasonable inspection costs.
13. Termination & Cancellation of Account T3D retains the right, and without prior notice to you, to disable or suspend your Emcore3D Account or terminate the Agreement. This includes your right (or ability) to access or use any of the Services if you breach this Agreement, or if your use of the Services poses a security risk to, or otherwise adversely impacts, the Services or any third party. Likewise we reserve the right to disable or suspend your Emcore3D Account if your use of the Services subjects T3D, our affiliates or any third party to liability, or if your use of the Services may be fraudulent, or you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Should you use any of the Services result in suspension or termination you acknowledge that T3D will have no further obligation to provide the Services to you and you will remain liable for any remaining amounts owing. Further, all rights granted to you under the Agreement will immediately cease whereby you may no longer access any of Your Content that was previously submitted via any of the Services or that was related to your Emcore3D Account. Likewise T3D will have no obligation to maintain or forward you Your Content. Any suspension or termination will not affect your obligations to T3D (this includes, without limitation, proprietary rights and ownership, indemnification and limitation of liability eyc), which by their sense and context are intended to survive such suspension, disablement or termination.
14. Disclaimer THE SERVICES ARE ALL PROVIDED BY T3D ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES, REPRESENTATIONS, COVENANTS OR CONDITIONS. T3D (AND ITS LICENSORS) DO NOT WARRANT OR REPRESENT THAT THE SERVICES (OR ANY PART THEREOF), WILL OPERATE UNINTERRUPTED OR ERROR-FREE. T3D AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT T3D KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM T3D OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT. YOU ALONE SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR CONTENT, AND YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES.
15. Indemnification To the maximum extent permitted by law, you agree to defend, indemnify, and hold T3D, its directors, employees and agents/officers, harmless from and against any and all claims, actions, suits or proceedings. This icludes any and all losses, liabilities, damages, costs and expenses, including (without limitation), reasonable legal and accounting fees, arising out of/or in any way connected with your access to or use of any of the Services, your Content or your violation of the Agreement or any other agreement/license with T3D.
16. Liability Limitation T3D AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE SERVICES; OR (B) TWO HUNDRED NINETY NINE U.S. DOLLARS (US$299). IN NO EVENT WILL T3D, ITS LICENSORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SERVICES, OR FROM THE USE OR INABILITY TO USE THE SITE OR WEBSITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHERS AS A RESULT OF YOUR USE OF THE SITE, SERVICES OR COMMUNITIES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT T3D OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
17. General This Agreement supersedes all proposals, communications or understandings between the parties, either written or oral unless you and T3D have executed a separate agreement governing your use of the Services, in which case such separate agreement(s) will control in relation to the relevant Services. At it's disretion T3D may assign or transfer the Agreement, without any restriction. T3D may assign your User account for collection by a collection agency who may pursue claims limited to the collection of past due and owing amount and any interest or cost of collection permitted by law or the Agreement in any court of competent jurisdiction. T3D will deliver all notices or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement via e-mail or by posting to the Site, or your Emcore3D Account. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. For questions about the Terms of Service or your software license key, you may contact email@example.com.
18. Controlling Jurisdiction The Agreement is governed by and construed in accordance with the laws of United Kingdom.