Welcome to Stitch3D! Thank you for using our Service.
These Online Terms and Conditions as amended from time to time, along with any other terms and policies referenced herein, which are incorporated herein by reference and form an integral part hereof (these “Terms”) constitute a legally binding agreement as of the Effective Date (as defined below), governing your access to, and the use of www.stitch3d.io and any related website owned or operated by Stitch3D Inc. (the “Sites”), and the use of, and registration with, Stitch3D Service (defined below) through the Sites, a mobile application or through any other means. For the purposes of these Terms, any mobile application or other means shall be considered part of the Sites. These Terms are between Stitch3D Inc. (“Stitch3D”, “us”, “we” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (“you” or “your”). In case you represent your employer or another entity, you hereby represent that (i) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (ii) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING INTO THE SERVICE, OR IF YOU ARE AN ADMIN (AS DEFINED BELOW). PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. YOU ACKNOWLEDGE THAT THESE TERMS ARE BINDING, AND YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THESE TERMS, BY EITHER: (I) CLICKING ON A BUTTON OR CHECKING A CHECKBOX AFFIRMING YOUR ACCEPTANCE OF THESE TERMS; OR (II) REGISTERING TO, USING OR ACCESSING THE SERVICE, SITES OR STITCH3D MOBILE APPLICATION, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESE TERMS OR DO NOT HAVE LEGAL AUTHORITY TO BIND YOURSELF, YOUR EMPLOYER, OR ANY OTHER ENTITY (AS APPLICABLE), PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE OR THE SITES OR STITCH3D MOBILE APPLICATION.
1. Stitch3D Service.
Stitch3D provides a platform solution inclusive of any and all functionality, application programming interface, interactive features, and tools offered as part of the Stitch3D platform that allows users to easily upload, store, visualize, analyze, and share 3D imagery in many different formats (the “Service”). The Service can be accessed either online or via a mobile application. Anyone who is otherwise eligible to use the Service in accordance with these Terms may browse the public-facing pages of the Service, but to use most features of the Service, you must create an Account (as defined below). Stitch3D will endeavor to provide general e-mail support through the “Contact Us” section of the Site, but Stitch3D makes no representation or warranty that it will be able to respond to your query or resolve your issue in a timely manner or at all. We may add, modify, or discontinue any feature, functionality, or any other tool, within the Service and/or Sites, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement on the Sites and/or via the Service or by sending you an email.
2. Account Registration and Use.
To access and use most of the features and functionality of the Service, you will need to create an account with the Service (an “Account”). By creating an Account and registering with Stitch3D you become, either individually or on behalf of your employer or any entity for whom you created the Account, a Stitch3D customer (the “Customer”). Each individual Account is connected to a single person, and in the case of enterprise Customers, the first user of an Account is automatically assigned as the Account administrator (the “Admin”). Enterprise Customers may have multiple Accounts to reflect its user base, but each Account is connected to a single individual. The features and functionalities available to Customers are determined by the respective subscription plan governing a Customer.
By agreeing to these Terms, you represent and warrant to us that:(a) you are at least 18 years of age; (b) you have not previously been suspended or removed from our Sites and/or Service; and (c) your registration and your use of the Sites and Service complies with all applicable laws and regulations.
When creating an Account, you: (i) agree to provide us with accurate, complete, and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure that your password remains confidential and secure; (iii) agree that you are fully responsible for all activities that occur under your Account and password, including any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Service; and (iv) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of your Account and/or any breach of these Terms. We may assume that any communications we receive under your Account have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of your Account by either you or any other user or third party on your behalf.
You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account. In the event that you or the Admin lose access to an Account or otherwise request information about an Account, we reserve the right to request from you or such Admin (as the case may be) any verification we deem necessary before restoring access to or providing information about such Account.
The Admin(s) of an enterprise Customer are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer. An Admin may assign or add other users who have registered Accounts of the enterprise Customer as Admins, which possess important privileges and controls over the use of the Service and the enterprise Customer’s Accounts, including, without limitation: (i) control your use of the Sites and Service; (ii) purchase, upgrade or downgrade the Service; (ii) create, monitor or modify users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise change, all or part of the Customer Data (as defined below); and (iv) integrate or disable integrations with Third Party Services. If you are part of an enterprise Customer, you also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered.
If you are using only the free portions of the Site and Service, then subject to the terms and conditions of these Terms, and your compliance thereof, and specifically in strict compliance with our Use Restrictions below, we grant you a limited, worldwide, non-exclusive, non-transferable revocable right to access and use the Service and Sites solely for your own personal purposes. If you have registered an Account and/or are a Customer, then subject to the terms and conditions of these Terms, and your compliance thereof, and specifically in strict compliance with our Use Restrictions below, we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Service and Sites, during the applicable Subscription Term, solely for your or Customer’s internal purposes.
As you use the Service you may upload, create, store, transmit, and otherwise use files, images, data, comment, information, and other materials which we consider “User Content,” and you may elect to share your User Content with other users both generally to all users of the Service and specifically to users of your choosing.
So that we can provide the Service to you and others, you grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, process, adapt, publicly perform or display, translate, and create derivative works of your User Content (subject to your privacy settings).. You agree and acknowledge that you have all right, license, permission, and authority for any User Content you submit or upload to the Site or the Service, that any use of your User Content described in these terms does not infringe on another’s intellectual property rights or is in breach of any agreement relating to the User Content, and that any User Content you submit adheres to these Terms and any other agreement incorporated herein. Stitch3D is not responsible for the content you or any other user submits.
Stitch3D reserves the right (but is not obligated) to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Service; (ii) edit any User Content submitted through the Service; and/or (iii) remove or take down any User Content from the Service for any reason, at any time, without prior notice, at our sole discretion. Stitch3D will have no liability or responsibility to users of the Sites or Service or any other person or entity for performance or nonperformance of such activities.
3. Use Restrictions.
Except as expressly permitted in these Terms, as a specific condition of your use of the Sites or the Service, you may not, and shall not allow another user or any third party to:
4. Your Customer Data.
Customer Data is any User Content, data, file attachments, text, images, reports, personal information, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Sites or Service by you and is processed by us on your behalf (the “Customer Data”). For the avoidance of doubt, Anonymous Information (as defined below) is not regarded as Customer Data. Except for the rights granted herein by you, you retain all right, title, interest and control, in and to the Customer Data, in the form submitted to the Sites or Service. Subject to these Terms, Customer grants us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display in the Sites or Service constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. The aforementioned license is hereby granted: (i) to maintain, improve, and provide you the Sites or Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; (v) as described in our Privacy Policy; and (vi) other uses that are expressly permitted in writing by you.
You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that you submit, post or display on or through the Service; (ii) the Customer Data is in compliance with, and subject to, our Use Restrictions; and (iii) the Customer Data you submit, your use of such Customer Data, and our use of such Customer Data, as set forth in these Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks, moral rights, or other intellectual property rights, proprietary or any privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the “Laws”); or (c) violate any third party’s policies and terms governing the Customer Data. Other than our security and data protection obligations expressly set forth herein, we assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Stitch3D shall not monitor and/or moderate the Customer Data and there shall be no claim against Stitch3D of not acting so.
You shall not submit to the Sites or Service any data that is protected under a special legislation and requires any unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; (ii) any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and supplemented, or any similar legislation in other jurisdictions, unless Customer and Stitch3D separately enter into a HIPAA Business Associate Agreement.
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY CUSTOMER DATA YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SITES AND SERVICE DURING ANY APPLICABLE TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR CUSTOMER DATA. STITCH3D IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE SITES OR SERVICE.
5. Term.
These Terms are in full force and effect, commencing upon the Effective Date terminated in accordance with these Terms.
Some parts of the Site and Service may be accessed and used without charge to you. For all parts of the Site and Service that may be accessed and used without charge, your continued access and use constitutes acceptance of these terms, and if at any time you do not agree to these Terms then your sole recourse is to cease using those parts of the Site and Service.
For all other parts of the Site and Service are provided on a subscription basis for the term (the “Subscription Term”) specified on the payment form and in accordance with the subscription plan purchased (the “Subscription”). Each Subscription Term includes automatic renewal to avoid against disruption and loss of service for a renewal period equal to the initial Subscription Term (each a “Renewal Term”) and at the same price as the immediately preceding initial or renewal subscription term unless notice of a change in price is provided to you in advance of the renewal date. You may elect not to renew your Subscription by cancelling it in advance of your current Subscription Term’s expiration date.
6. Termination & Effects of Termination.
If you are using the only free portions of the Site and/or Services, you may terminate the relationship between you and Stitch3D and your access and use of the Site and Services immediately by ceasing to use the Site and Services. We may terminate your access and use immediately if we determine you are in violation of any portion of these Terms or for any other reason.
If you are a Customer, subject to Section 7, either party may terminate these Terms upon written notice to the other party should the other party be in material breach of any term of these Terms and fail to cure that breach within fifteen (15) days after notice of the breach from the non-breaching party. Either party may terminate these Terms if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency, or debtor’s relief law; or (iv) the other party is liquidated or dissolved.
Upon termination or expiration of these Terms, your access and use and Subscription, if applicable, and all rights granted to you hereunder shall terminate. It is your sole obligation to export your Customer Data prior to such termination or expiration. In the event that you did not delete your Customer Data from your Account, we may continue to store and host it until either you or we, at our sole discretion, delete such Customer Data, and during such period, you shall still be able to make a limited use of the Sites or Service in order to export the Customer Data (the “Read-Only Mode”), but note that we are not under any obligation to maintain the Read-Only Mode period, hence such period may be terminated by us, at any time, with or without notice to you, and subsequently, your Customer Data will be deleted. You acknowledge the foregoing and your sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to you, nor to any Customer or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Subscription Fees.
7. Suspension.
We may decide to temporarily suspend or terminate your Account and/or your access to our Sites or Service, if the one or more of following events occur: (i) we believe, at our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are using the Site or Service in breach of these Terms or applicable law; (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become, overdue; or (iv) Customer’s or any of its users’ breach of the Use Restrictions above. The aforementioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable law. Termination of these Terms under this Section shall not relieve Customer from its obligation to pay due Subscription Fees.
8. Fees & Taxes.
You agree to the fees, expenses, and charges specified on the payment form (collectively, “Subscription Fees”) in accordance with these Terms. You hereby authorize us, either directly or through our payment processing service or our affiliates, to charge such Subscription Fees via your selected payment method, upon each due date. Unless expressly set forth herein, the Subscription Fees are non-cancelable and non-refundable. We reserve the right to change the Subscription Fees at any time, upon notice to you if such change may affect your existing subscriptions upon renewal. In the event of failure to collect the Subscription Fees owed by you, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice.
The Subscription Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Service hereunder (the “Taxes”), except for Taxes imposed on our income. You shall bear the sole responsibility and liability to pay such Taxes and such Taxes should be deemed as being added on top of the Subscription Fees, payable by you.
9. Third Party Software and Services.
Through the Sites or Service, you, an Admin, or other user may enable integrations within your Account with Third-Party Services (as defined below), which may provide for interaction and exchange of data (including Customer Data) between the Sites or Services and the Third-Party Services. By integrating and/or using the Third-Party Services, you acknowledge and agree that: (a) you are solely responsible for your compliance with applicable privacy restrictions, laws and regulations, including your use of the Third-Party Services and other data activities you may conduct or may permit third parties, including the Third-Party Services, to conduct; (b) the activities and use of the Sites or Services by you and any other users, may result in a modification and/or removal of data (i.e. Customer Data) and in the integrated Third-Party Service. We shall have no obligation of any kind, for any such modification and/or removal of data, either in your use of the Sites or Service and/or the integrated Third-Party Services. Both Stitch3D and a provider of Third-Party Services may impose, each at its sole discretion, additional conditions or limitations on your access and use of certain Third-Party Services, including without limitation, imposing a limited quota on the number of actions or other uses (as the case may be). Such additional conditions or limitations shall be indicated wherever relevant within the Sites or Service or the Third-Party Services or otherwise notified to you.
Stitch3D may provide links, integrations, or access to other websites, application, products or services provided by third-party service providers (“Third-Party Services”) when you use the Service or visit the Sites. Stitch3D has no control over the content or privacy policies of Third-Party Services that you may link to from the Service or the Sites or their advertisers. If you visit a linked website, be aware that the third party operating any such website may have access to any information you submit via that website. Stitch3D is not responsible for any third party's failure to establish or abide by its or our Privacy Policy. Check the privacy policy for each website that you visit prior to submitting any personal information. Links to third-party websites do not imply endorsement of the websites by Stitch3D. Stitch3D makes no representations or warranties with respect to Third-Party Services and will not be liable for such Third-Party Services, even when used in conjunction with the Service.
10. Confidentiality.
In connection with these Terms and the Sites or Service, each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as your Confidential Information, and (ii) our Sites and Service inclusive of their underlying technology, and their respective performance information, as well as any data, reports, and materials we provided to you in connection with your use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
11. Intellectual Property.
The Service and Sites, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and service marks (excluding Customer Data), any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, the “Materials”), are the property of Stitch3D and its licensors, and may be protected by applicable copyright or other intellectual property laws. As between you and Stitch3D, Stitch3D retains all right, title and interest, including all intellectual property rights, in and to the Materials. The Service is controlled and operated by Stitch3D from its offices within the U.S. Stitch3D makes no representation that any of the Service or Materials are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose and access any part of the Service from other locations does so on their own initiative and are responsible for compliance with applicable local laws.
Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Service and/or Sites, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Sites and Service, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. Stitch3D owns all Anonymous Information collected or obtained by Stitch3D.
As a user of the Service and/or Sites, you may provide suggestions, comments, feature requests or other feedback to any of the Materials, the Service, and/or the Sites (“Feedback”). Such Feedback is deemed an integral part of the Materials, and as such, it is the sole property of Stitch3D without restrictions or limitations on use of any kind. Stitch3D may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to Stitch3D any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.
Enterprise Customers acknowledge and accept that Stitch3D has the right to use the enterprise Customer’s name and logo to identify the enterprise Customer as a customer of Stitch3D or user of the Service, on Stitch3D’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting support@Stitch3D.io
12. Copyright Complaints.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send Stitch3D a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Stitch3D a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA, see http://www.loc.gov/copyright for details.
Notices and counter-notices with respect to the Service should be sent to Stitch3D Inc. at support@Stitch3D.io or 16192 Coastal Hwy, Lewes, DE 19958.
Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Sites or Service is infringing, you may be liable to Stitch3D for certain costs and damages.
13. Privacy.
Stitch3D’s Privacy Policy can be found here. By entering into these Terms, you represent that you have read, understood, and agree to Stitch3D’s Privacy Policy, which is fully incorporated into these Terms by reference. If you do not agree to the terms and conditions of the Privacy Policy then you are not authorized to access and use the Sites or Service and must immediately cease all access.
14. Security.
Stitch3D has and at all times shall maintain an information security program that includes reasonable administrative, electronic, technical, physical and other security measures and safeguards reasonably designed, at a minimum, to: (a) ensure the security and confidentiality of the all Customer Confidential Information (specifically including Customer Data) and the information contained in the Service; (b) protect against any unauthorized access to or use of the Service; (c) protect against any anticipated threats or hazards to the security or integrity of the Service; and (d) ensure the proper, secure and lawful disposal of Confidential Information within its possession or control.
15. Disclaimer.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITES AND THE SERVICE ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD-PARTY SERVICES PROVIDERS, HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.
WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICE AND SITES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND/OR SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CUSTOMER DATA) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT OUR SERVICE (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE AND/OR THE SITES.
Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.
16. Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR YOUR FRAUD, GROSS NEGLIGENCE, YOUR BREACH OF SECTION 11 (INTELLECTUAL PROPERTY) OR BREACH OF YOUR OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY HERETO AND ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD-PARTY SERVICES PROVIDERS), BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, USE, BUSINESS, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE FAILURE OF SECURITY MEASURES AND PROTECTIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR (A) ANY ACTS OF FRAUD OR GROSS NEGLIGENCE COMMITTED BY YOU, (B) THE INDEMNITY OBLIGATIONS OF SECTION 17 (INDEMNIFICATION) HEREIN, (C) YOUR PAYMENT OBLIGATIONS HEREUNDER, OR BREACH OF SECTION 3 (USE RESTRICTIONS) BY EITHER YOU, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY, ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE ITS THIRD-PARTY SERVICES PROVIDERS), UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES AND THE SERVICE), EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) DURING THE 12 CONSECUTIVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
17. Indemnification.
You will indemnify and hold Stitch3D, its affiliates and their respective officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal fees arising out of or in any way connected with (a) your access to or use of the Service, (b) your Customer Data, including the use of Customer Data by Stitch3D and/or any of its subcontractors, infringement or violation of any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights, or (c) your violation of these Terms. We will provide notice to you of any such claim, dispute or demand. We reserve the right, at your expense, to assume the exclusive defense and control of any claim, dispute or demand that is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
18. Export Controls; Sanctions.
The Service may be subject to U.S. or foreign export controls, Laws and regulations (the “Export Controls”), and you acknowledge and confirm that: (i) you are not located or use, export, re-export or import the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions, (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (c) otherwise the target of U.S. sanctions. Customer is solely responsible for complying with applicable Export Controls and sanctions which may impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the Service and/or the Customer Data; and (iii) Customer Data is not controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder.
19. Arbitration.
Access to and use of any of the Sites and Service and these Terms are governed by the laws of the State of Delaware and the United States as applicable therein, without resort to conflict of law provisions. Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) arising out of or related to a violation these Terms or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, you and Stitch3D agree to (a) waive your and Stitch3D’ respective rights to have any and all Disputes arising from or related to these Terms, or the Service resolved in a court, (b) waive your right to proceed in a class, collective, or consolidated capacity, and (c) waive your and Stitch3D’ respective rights to a jury trial. Your rights and Stitch3D’ rights during the arbitration process may be more limited than the rights you or Stitch3D would have in civil trial or appellate court. The Federal Arbitration Act and federal arbitration law apply to these Terms.
Unless agreed to otherwise between the parties, any arbitration between you and Stitch3D will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes or the Employment Arbitration Rules and Mediation Procedures (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as may be modified by these Terms, and will be Administered by the AAA.
Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of Stitch3D to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) or (c) to file suit in a court of law to address an intellectual property infringement claim.
20. General Provisions.
Choice of Law; Jurisdiction.
These Terms will be governed by and construed in accordance with the laws of the State of Delaware (without reference to the conflicts of laws provisions thereof that would result in the application of another law). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of these Terms will be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located within the State of Delaware) and Stitch3D and you each consents to the jurisdiction of such a court. Stitch3D and you each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of these Terms. Notwithstanding the foregoing, Stitch3D reserves the right to seek injunctive relief in any court in any jurisdiction.
No Class Action.
WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND STITCH3D AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Stitch3D mutually agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
Modifications.
From time to time, we may make changes to these Terms for valid reasons, such as adding new functions or features to the Sites or Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide you with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Sites or Service or by sending you an email. Your continued use of the Sites or Service after the changes have been implemented will constitute your acceptance of the changes.
Force Majeure.
Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third Party Beneficiaries.
The parties are independent contractors. These Terms and the Service provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to these Terms.
Notice.
We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Sites or posting in your account, text, in-app notification, e-mail, phone or first class, airmail, or overnight courier. You further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided to Stitch3D Inc., attn: Stitch3D, at support@Stitch3D.io or sent to 16192 Coastal Hwy, Lewes, DE 19958.
Assignment.
These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our prior written approval. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Sites or Service to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section shall be null and void.
Severability.
These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
Survival.
Sections 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 shall survive termination or expiration of these Terms and continue to be in force and effect.
No Waiver.
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver
Contact.
If you have any questions about these Terms or the Sites or Service you can contact us at support@Stitch3D.io.
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