VisionScape Terms of Use
Welcome to VisionScape!
THIS CUSTOMER AGREEMENT ("AGREEMENT") GOVERNS YOUR REGISTRATION WITH VISONSCAPE, YOUR FREE TRIAL OF THE SERVICES AND, IF YOU ELECT TO PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE DURING YOUR ON-LINE REGISTRATION PROCESS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE NAME OF WHICH YOU MUST CLEARLY PROVIDE UPON REGISTRATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. For this purpose, a "competitor" shall be deemed to be any person or entity, directly or indirectly, providing on-line architectural, landscape, interior or graphic design services for use in residential and commercial construction.
This Agreement was last updated on February 1, 2011. It is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Services" means the online, Web-based applications and platform provided by Us via VisionScape.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a free trial or as part of the Purchased Services, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide for the Services, accessible via VisionScape.com/Help as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (14-Day Free Trial) below.
"Users" means one, and not more than one, individual (who shall be designated at the time of registration) who is authorized to use the Services pursuant to the terms of this Agreement, and such other individuals for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords consistent with the terms of this Agreement. Users shall be limited to the single User identified on the registration or purchase of each subscription and shall include no other third persons. You have the obligation to pay, and We reserve the right to charge, additional subscription fees for each individual beyond the registered User that accesses and utilizes the Services.
"We," "Us" or "Our" means VisionScape Interactive, LLC.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. FREE TRIAL
We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
YOU WILL NOT BE PERMITTED TO TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. IF YOU DO NOT ELECT TO PURCHASE THE SERVICES AT THE END OF THE TRIAL PERIOD, THE DATA YOU ENTERED DURING THE TRIAL PERIOD WILL BE LOST.
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY..
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement during the subscription term provided in Section 12. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features and you accept the Services as-is and only subject to the explicit warranties contained herein.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the number of Users for whom a User fee has been paid, (ii) additional User subscriptions may be added anytime during the subscription term at the then current subscription cost. User subscriptions are for the designated User and cannot be shared or used by more than one User.
4. USE OF THE SERVICES
4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately (the terms of basic support and upgraded support are described in the User Guide or on Our website), (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) maintenance downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for your and all Users'™ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. THIRD-PARTY CONTENT & SERVICES
5.1. The VisionScape Service allows you to access certain content, including symbols, images, trademarks, logos, textures, 3D Models, text, and videos (the "Content"). All Content belongs to their respective owners, including VisionScape Interactive, LLC. or third parties, and you shall have no rights, title or interest therein. The Content is provided for use with the Services only. You shall not use the Content included with the Service for any other purpose outside of the Service or copy, sell or distribute the Content for any purpose whatsoever. VisionScape Interactive, LLC., and third parties assume no responsibility for any discrepancies between actual product appearance and that represented in the Service, or between actual pricing, characteristics, and specifications, and that mentioned anywhere in the Service, the Visionscape web site or the User Guide.
5.2. Acquisition of Third-Party Products and Services. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
5.3. API. Service features that interoperate with any application program interface selected by Us ("API") depend on the continuing availability of the API and program for use with the Services. If the API provider ceases to make the API or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You shall pay all fees specified for your subscription at the expiration of any free trial period and prior to commencement of any Purchased Services, or renewal thereof. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the subscriptions purchased cannot be terminated during the relevant subscription term. User subscription fees are based on annual periods that begin on the subscription start date and end in one calendar year. In the event that you fail to timely pay any User fees, we reserve the right to terminate your access to the Service without any notice to you whatsoever.
6.2. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii), reverse engineer the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to any Confidential Information.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not knowingly transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party' exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. EXCEPT IN CONNECTION WITH A BREACH OF CONFIDENTIALITY AND NON-DISCLOSURE OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the User subscription to which this Agreement relates has expired or been terminated in accordance with the terms hereof. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified during the on-line ordering process and continue for the subscription term specified therein. [IF AUTOMATIC RENEWAL IS SELECTED - All User subscriptions shall automatically renew for additional periods equal to the expiring subscription term of one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Your obligation to pay User fees for the renewal period shall be binding upon you and enforceable by Us in the event that you fail to provide any such termination notice.]
12.3. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES AND GOVERNING LAW
13.1. General. Who You are contracting with under this Agreement,
VisionScape Interactive, LLC
30 Manchester Rd
Poughkeepsie NY 12603
13.2. Governing Law / DISPUTE RESOLUTION; ATTORNEY'S FEES.
This Agreement shall be governed by the internal laws of the State of New York, without reference to choice of law principles. Any dispute, controversy or claim arising out of this Agreement, or the breach hereof, that cannot be settled through negotiation shall be settled (a) first, by the parties trying in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association ("AAA" (such mediation session to be held in White Plains, NY and to commence within fourteen (14) days of the appointment of the mediator by the AAA), and (b) if the dispute controversy or claim cannot be settled by mediation, then by binding arbitration administered by the AAA under it Commercial Arbitration Rules (such arbitration to be held in White Plains, NY before a single arbitrator and to commence within fourteen (14) days of the appointment of the arbitrator by the AAA). Judgment on the award by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may, without inconsistency to this Agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect its rights or property pending the establishment of the arbitration panel or its determination of the merits of the controversy. If any action at law or in equity, through arbitration or otherwise, is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney'™s fees, costs and expenses, in addition to any other relief to which such prevailing party may be entitled.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
14. GENERAL PROVISIONS
14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
14.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.1 (Invoicing and Payment)
14.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
THIS CUSTOMER AGREEMENT ("AGREEMENT") GOVERNS YOUR REGISTRATION WITH VISONSCAPE, YOUR FREE TRIAL OF THE SERVICES AND, IF YOU ELECT TO PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE DURING YOUR ON-LINE REGISTRATION PROCESS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE NAME OF WHICH YOU MUST CLEARLY PROVIDE UPON REGISTRATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. For this purpose, a "competitor" shall be deemed to be any person or entity, directly or indirectly, providing on-line architectural, landscape, interior or graphic design services for use in residential and commercial construction.
This Agreement was last updated on February 1, 2011. It is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Services" means the online, Web-based applications and platform provided by Us via VisionScape.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a free trial or as part of the Purchased Services, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide for the Services, accessible via VisionScape.com/Help as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (14-Day Free Trial) below.
"Users" means one, and not more than one, individual (who shall be designated at the time of registration) who is authorized to use the Services pursuant to the terms of this Agreement, and such other individuals for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords consistent with the terms of this Agreement. Users shall be limited to the single User identified on the registration or purchase of each subscription and shall include no other third persons. You have the obligation to pay, and We reserve the right to charge, additional subscription fees for each individual beyond the registered User that accesses and utilizes the Services.
"We," "Us" or "Our" means VisionScape Interactive, LLC.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. FREE TRIAL
We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
YOU WILL NOT BE PERMITTED TO TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. IF YOU DO NOT ELECT TO PURCHASE THE SERVICES AT THE END OF THE TRIAL PERIOD, THE DATA YOU ENTERED DURING THE TRIAL PERIOD WILL BE LOST.
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY..
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement during the subscription term provided in Section 12. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features and you accept the Services as-is and only subject to the explicit warranties contained herein.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the number of Users for whom a User fee has been paid, (ii) additional User subscriptions may be added anytime during the subscription term at the then current subscription cost. User subscriptions are for the designated User and cannot be shared or used by more than one User.
4. USE OF THE SERVICES
4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately (the terms of basic support and upgraded support are described in the User Guide or on Our website), (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) maintenance downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for your and all Users'™ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. THIRD-PARTY CONTENT & SERVICES
5.1. The VisionScape Service allows you to access certain content, including symbols, images, trademarks, logos, textures, 3D Models, text, and videos (the "Content"). All Content belongs to their respective owners, including VisionScape Interactive, LLC. or third parties, and you shall have no rights, title or interest therein. The Content is provided for use with the Services only. You shall not use the Content included with the Service for any other purpose outside of the Service or copy, sell or distribute the Content for any purpose whatsoever. VisionScape Interactive, LLC., and third parties assume no responsibility for any discrepancies between actual product appearance and that represented in the Service, or between actual pricing, characteristics, and specifications, and that mentioned anywhere in the Service, the Visionscape web site or the User Guide.
5.2. Acquisition of Third-Party Products and Services. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
5.3. API. Service features that interoperate with any application program interface selected by Us ("API") depend on the continuing availability of the API and program for use with the Services. If the API provider ceases to make the API or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You shall pay all fees specified for your subscription at the expiration of any free trial period and prior to commencement of any Purchased Services, or renewal thereof. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the subscriptions purchased cannot be terminated during the relevant subscription term. User subscription fees are based on annual periods that begin on the subscription start date and end in one calendar year. In the event that you fail to timely pay any User fees, we reserve the right to terminate your access to the Service without any notice to you whatsoever.
6.2. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii), reverse engineer the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to any Confidential Information.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not knowingly transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party' exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. EXCEPT IN CONNECTION WITH A BREACH OF CONFIDENTIALITY AND NON-DISCLOSURE OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the User subscription to which this Agreement relates has expired or been terminated in accordance with the terms hereof. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified during the on-line ordering process and continue for the subscription term specified therein. [IF AUTOMATIC RENEWAL IS SELECTED - All User subscriptions shall automatically renew for additional periods equal to the expiring subscription term of one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Your obligation to pay User fees for the renewal period shall be binding upon you and enforceable by Us in the event that you fail to provide any such termination notice.]
12.3. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES AND GOVERNING LAW
13.1. General. Who You are contracting with under this Agreement,
VisionScape Interactive, LLC
30 Manchester Rd
Poughkeepsie NY 12603
13.2. Governing Law / DISPUTE RESOLUTION; ATTORNEY'S FEES.
This Agreement shall be governed by the internal laws of the State of New York, without reference to choice of law principles. Any dispute, controversy or claim arising out of this Agreement, or the breach hereof, that cannot be settled through negotiation shall be settled (a) first, by the parties trying in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association ("AAA" (such mediation session to be held in White Plains, NY and to commence within fourteen (14) days of the appointment of the mediator by the AAA), and (b) if the dispute controversy or claim cannot be settled by mediation, then by binding arbitration administered by the AAA under it Commercial Arbitration Rules (such arbitration to be held in White Plains, NY before a single arbitrator and to commence within fourteen (14) days of the appointment of the arbitrator by the AAA). Judgment on the award by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may, without inconsistency to this Agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect its rights or property pending the establishment of the arbitration panel or its determination of the merits of the controversy. If any action at law or in equity, through arbitration or otherwise, is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney'™s fees, costs and expenses, in addition to any other relief to which such prevailing party may be entitled.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
14. GENERAL PROVISIONS
14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
14.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.1 (Invoicing and Payment)
14.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.