LICENSE AGREEMENT TERMS AND CONDITIONS
This License Agreement is made between us, 3DVista España S.L. (“3DVista ”, “we ”, “the Company” or “licensor”) and the registered Licensee ("the Licensee“, „the Customer“, “you”) of the software package currently titled "Stitcher“ and/or “Virtual Tour Pro” ("the Software", “VT PRO”).
Please read this agreement carefully. By copying, installing, or using all or any portion of this software, you accept all the terms and conditions of this agreement. Customer agrees that this agreement is like any written negotiated agreement signed by Customer.
This agreement is enforceable against Customer. If Customer does not agree to the terms of this agreement, Customer may not use the software. This agreement may govern Customer ’s use of additional Software subsequent to the effective date of this agreement. Such additional Software shall reference the terms of this agreement. This agreement may also incorporate by reference any end Licensee license agreement governing a prior version of the Software.
The Software may cause Customer 's Computer to AUTOMATICALLY CONNECT TO THE INTERNET. The Software may also require activation or registration. Additional information on activation, Internet connectivity, and privacy is available in Section 10.
This Agreement commences on the date of acceptance by the Licensee of the terms of this Agreement ("the Commencement Date") unless and until terminated in accordance with the provisions of this Agreement. These terms shall be deemed to be accepted when the Licensee clicks on the acceptance button on the license screen.
(a) “3DVista“ or “Licensor” means 3DVista España S.L., Avenida Fernando de los ríos 58, Granada, SPAIN.
(b) "Customer" or “Licensee” means you and any legal entity that obtained the Software and on whose behalf it is used; for example, and as applicable, your employer.
(c) "Compatible Computer" means a Computer with the recommended operating system and hardware configuration as stated in the Documentation.
(d) "Internal Network" means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations, and similar organizations.
(e) "Software" means (a) all of the information with which this agreement is provided, including but not limited to: (i) all software files and other computer information; (ii) any proprietary scripting logic embedded within exported file formats or used in a 3DVista Online Service; (iii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with 3DVista software or made available by 3DVista on 3DVista ’s website for use with the 3DVista software and not obtained from 3DVista through a separate service (unless otherwise noted within that service) or from another party ("Content Files"); (iv) related explanatory written materials and files ("Documentation"); and (v) fonts; and (b) any modified versions and copies of, and upgrades, updates, and additions to, such information, provided to Customer by 3DVista at any time, to the extent not provided under separate terms (collectively, "Updates").
This Agreement governs the license to use the Software granted by Licensor to Licensee limited to the terms indicated herein;
4. License Terms
4.1 License terms. Subject to the provisions of this Agreement, Licensor hereby grants to Licensee a personal, worldwide, perpetual, non-exclusive, non-transferrable, non-sublicensable, non-resellable and limited license to install and use the Software together with the corresponding documentation, in exchange for the specified price. The use of the Software shall be limited to Licensee’s own business purposes only according to the Authorised use of the Software and the rest of the conditions detailed in this Agreement.
4.2 Perpetual License. Licensor grants a perpetual license, under which Licensee shall be able to make use of the Software provided. The use of the Software shall be always in accordance with the provisions set herein, which shall survive any termination of this Agreement.
4.3 Updates. The license granted under this section does not entitle Licensee to any future enhancements or updates to the Licensed Software, except for a period of one year from the date of purchase. During this first period all updates, both major and minor, will be free of charge.
From the date of the first anniversary of the purchase, the company reserves the right to charge for the use of a major upgrade. Minor updates that provide fixes and improve the general performance of the program will continue to be free.
5. Restrictions On Use
5.1 Authorized use of the Software. Licensee may only use the "Virtual Tour Pro" software for the purposes intended.
5.2 Identity of Licensee & Purpose of License. This license is personal to the licensee identified as the purchaser of the Software. In the case of an individual purchaser, the license granted herein is for the benefit only of that individual. In the case of a corporate purchaser, the license granted herein is for the benefit only of that corporation's employees and authorised agents. The intended purpose of the use of the Software is as specified in the documentation relating thereto.
5.3 Restrictions on use. Licensee shall not (a) create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, (or the underlying ideas, algorithms, structure or organization) from the Software, or any part thereof, or aid or permit others to do so, except and only to the extent expressly permitted by applicable law; (b) remove or alter any trademark, logo, copyright or other proprietary notices or markings in the Software; (c) copy, modify or create any derivative work of the Software or any portion thereof; (d) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Licensor or any of Licensor’s providers or any other third party (including another Licensee) to protect the Software; (e) hack into, disable, disrupt, or access without authorization any part of the Software, or attempt any of the foregoing; (f) impersonate or misrepresent an affiliation with any person or entity; (g) use or access the Software for any competitive purpose; (h) perform benchmark testing on the Software; (h) violate any applicable law or regulation; or (i) encourage or enable any other individual to do any of the foregoing. The Licensor has the right to investigate violations of these terms. The Licensor may also consult and cooperate with law enforcement authorities to prosecute Licensees who violate the law.
5.4 Limited Right to Install and use. For every individual license purchased, Licensee may install and use the Software on the hard disk drive (or any other read/writeable device) of up to two compatible computers (primary computer and additional computer) that the Licensee owns, provided both versions are for his or her exclusive use on either a portable Computer or a Computer located at his or her home, and provided that the Software on the additional Computer is not used at the same time as the Software on the primary Computer.
Unless as otherwise permitted, the Licensee may not under any circumstances have the software installed onto the hard disk drive (or any other read/writeable device) of (1) three or more computers at the same time, (2) nor may the Licensee install the Software onto the hard disk drive (or any other read/writeable device) on one computer and then use diskettes or CD-Rom on which the Software may be stored on any other computer, (3) nor may the Licensee install the software onto a Server for other individuals from a computer within the same internal network to access and use the software. If the Licensee wishes to use the Software on more than two computers, then the Licensee must either erase the Software from one hard disk drive before it is installed onto a third hard disk drive or else obtain from us a license for an additional copy of the Software for each additional computer on which the Licensee wants to use it.
5.5 Right to Copy. The Licensee may copy the Software for back-up and archival purposes, provided that the original and each copy is kept in the Licensee's possession, and that the Licensee's installation and use of the Software does not exceed that allowed in Clause 5.4 above. Any permitted copy of the Software (including without limitation Documentation) that Customer makes must contain the same copyright and other proprietary notices that appear on or in the Software.
6. System Requirements
Licensee is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Software.
The technical conditions for the Software use are:
Licensor shall not have any obligations or responsibility under this Agreement for issues caused by or resulting from the Licensee not meeting these technical requirements.
7. Support Service
The use of this Software does not imply the existence of a technical support service. The software is delivered "as is" and as such does not have an associated technical service.
The licensor, however, undertakes to deal with the requests of the licensees and to deal with their requests to the best of his ability but in no case is he under any legal obligation to deal with their complaints except in the case of incidents that may be directly associated with a misuse of the software.
8. Limited Warranty
8.1 Mutual warranties. Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement.
8.2 Support Services. Licensor warrants that the Support Services will be performed in a workmanlike manner and in accordance with industry standards.
8.3 Intellectual Property Rights. Licensor represents and warrants that to the best of its knowledge, the use of the Software by the Licensee in accordance with the Agreement will not infringe the Intellectual Property Rights of any third party.
8.4 Virus. Licensor represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided initially to Licensee, will be free of any viruses, malware, or other harmful components.
8.5 Performance. Licensor represents and warrants that for a period of twelve (12) months upon initial installation (the "Software Warranty Period"), the Software will perform substantially in accordance with the specifications contained in the applicable Software documentation. Nonetheless, the Licensee acknowledges that the Software may not be error-free or bug-free.
8.6 TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR’S WARRANTIES ARE LIMITED TO THOSE SET OUT IN THE AGREEMENT AND ALL OTHER CONDITIONS, GUARANTEES OR WARRANTIES WHETHER EXPRESSED OR IMPLIED BY STATUTE OR OTHERWISE ARE EXPRESSLY EXCLUDED.
8.7 SPECIFICALLY (BUT NOT EXCLUSIVELY), LICENSOR DOES NOT REPRESENT NOR WARRANT THAT: (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE PROPERLY ON ALL OR ANY PARTICULAR HARDWARE, SOFTWARE, SYSTEM, OR DATA in accordance with clause 6 ; (C) THE SOFTWARE AND ANY SUPPORT OR ADDITIONAL SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2, THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8.8 The exclusive remedy for breach of warranty is to fix or repair the Software promptly upon notice, at Licensor’s expenses.
8.9 Exclusion of warranty cover. The Licensor shall not be obliged to remedy or fix the Software for breach of warranty to the extent that the errors or defects arise from or in connection with:
In this respect, the information or advice given verbally or in writing by Licensor or a representative thereof to the Licensee shall not constitute any additional guarantee.
9. Limitation of Liability
9.1 Indirect Damages. LICENSOR SHALL NOT BE HELD LIABLE, WITHOUT PREJUDICE TO ANY BINDING PROVISIONS OF APPLICABLE LAW, TO THE LICENSEE FOR ANY DAMAGE, COMPENSATION OR INDEMNIFICATION BASED ON INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY) OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 Limitation of Liability. Licensee agrees to indemnify and hold harmless Licensor for any direct, indirect, incidental, or consequential third-party claims, actions or suits, as well as any related expenses, liabilities, damages, settlements or fees arising from Licensee’s use or misuse of the Software, or a violation of any terms of the License Terms.
Licensee will be solely responsible and liable for all Fees and other Service charges and for full compliance with all laws applicable to its business in its jurisdiction.
9.3 Maximum liability: LICENSOR’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, AND LICENSEE'S SOLE REMEDY, SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE PROPORTIONAL PART OF THE COST OF THE LICENSE PAID OR PAYABLE BY THE LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE LAST TWELVE (12) MONTHS PRECEDING THE CLAIM.
Nothing in this Agreement shall limit or exclude a Party’s liability which cannot be excluded or limited in terms of applicable law.
9.4 Force Majeure. Neither party shall be liable to the other for any failure to perform its obligations under the Agreement to the extent that such failure or delay is the result of any cause or circumstance beyond the reasonable control of the affected party and that the failure could not have been prevented or overcome by it acting reasonably and prudently (such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, -declared or undeclared- war, embargoes, blockades, legal restrictions, riots, insurrections, governmental regulations, and the unavailability of means of transportation). The affected party: (a) shall immediately notify the other party and provide full information about the Force Majeure; (b) shall use its best efforts to overcome the Force Majeure; and (c) shall continue to perform its obligations to the extent possible.
11. Confidentiality and Data Protection
11.1 Non-Disclosure. During the term of this contract and after its termination, each party agrees to keep secret all Confidential Information originating from the other party, whether it concerns the Software or Support Services, or whether the information concerns, more generally, the companies and operations of either party.
The Parties will keep and maintain all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure.
Confidential Information shall include, but not be limited to, all business information of the Parties, including the following: (a) information and data related to the Software and the documentation provided to the Licensee; (b) information relating to Licensee's planned or existing computer systems and systems architecture, including computer hardware, computer software, documentation, methods of processing and operational methods; (c) information regarding parties's product strategies, customer lists, sales, profits, organizational restructuring, new business initiatives and financial information; and (d) information regarding third parties with whom parties conducts business; and (e) the terms of this Agreement; (f) emails exchanged with the support service or any other person in the company.
Either party may disclose the Confidential information exclusively: (i) if such disclosure is required by law, provided that such party will seek appropriate confidentiality of those parts of the Agreement not subject by the requirement; or (ii) if (an only as) is necessary in connection with any financing, merger, strategic partnership, or other similar transaction, subject to the execution of confidentiality agreement with the third party; (iii) when the information is or becomes generally known to the public other than by the receiving party; (iv) is rightfully in the possession of the receiving party prior to disclosure.
On the date of termination of the present contractual relations, the parties shall return any documentation and information concerning the other party that is in their possession.
The obligation of confidentiality will persist after the end of the contractual relationship.
11.2 Data Protection. The Parties shall process personal data relating to the signatories on the basis of and with a view to maintaining and executing the contractual relationship existing between them for the duration of the same. The interested parties may at any time exercise their rights of access, rectification, deletion, limitation and opposition to the processing by contacting the Party processing their data at the address included in the heading of the Contract or the contact details established in Section 13.3. They may also contact the control authority to claim their rights.
12.1 Software License. Licensee agrees to pay Licensor a one-time licensing fee for the License of the Software plus the corresponding Value Added Tax if applicable.
The amount to be paid by the Licensee is determined according to the price indicated on the website www.3dvista.com at the time of contracting.
12.2 Invoicing and payment. In case the Licensor contracts the license online, he/she will be sent an automatic email with their license data (username and password), instructions and their invoice for the purchase. After payment, the Licensor shall allow Licensee to use the Software without watermark and according to this Agreement.
3DVista reserves the right to sell licenses via other methods, such as Purchase Orders, at their own discretion. In those cases, 3DVista will deliver the license credentials up front along with an invoice that is payable within 30 days (SEPA or SWIFT, OUR). Payment by check is only admitted when explicitly accepted by 3DVista.
13. Internet Connectivity
13.1 Automatic Connections to the Internet. The Software may cause Customer's Computer, without notice, to automatically connect to the Internet and to communicate with a 3DVista website or 3DVista domain for purposes such as validating Software license and providing Customer with additional information, features, or functionality.
13.3 Communication. As permitted by applicable law or as consented to by Customer, 3DVista may (a) send Customer transactional messages to facilitate the 3DVista Online Service or the activation or registration of the Software or 3DVista Online Service or (b) deliver in-product marketing to provide information about the Software and other 3DVista products and Services using information including, but not limited to, platform version, version of the Software, license status, and language.
13.4 Updating. The Software may cause Customer's Computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for Updates that are available for download to and installation on the Computer and (b) notify 3DVista of the results of installation attempts.
13.5 Activation. The Software may require Customer to (a) obtain a 3DVista user name, (b) activate or reactivate the Software, including activation of certain components or features, or (c) register the software. Such requirement may cause Customer's Computer to connect to the Internet without notice on install, on launch, and on a regular basis thereafter. Once connected, the Software will collect and transmit information to 3DVista.
Software or Customer may also receive information from 3DVista related to Customer's license or subscription. 3DVista may use such information to detect or prevent fraudulent or unauthorized use not in accordance with a valid license. Failure to activate or register the Software or a determination by 3DVista of fraudulent or unauthorized use of the Software may result in reduced functionality or inoperability of the Software.
13.6 Deactivation. Customer may deactivate and uninstall the Software from their Computer in order to install and activate the Software on another Computer in accordance with this agreement ("Deactivation“). Deactivation requires Internet connectivity.
13.7 Use of Online Services and Hosting. As an optional additional service to the Virtual Tour PRO licence, the Customer may use the 3DVista Hosting services ("3DVista Hosting" or "3DVista CLOUD") free of charge for 3 months from the time of use of the licence.
After these three months, the Customer may only use this service by selecting any of the plans offered by 3DVista on its website.
This hosting service allows clients to upload their virtual tours directly from inside the VT PRO software, without the use of an external FTP program and server. These subscriptions only work in combination with a valid Virtual Tour Suite licence. This paragraph will apply to all 3DVista customers using the 3DVista hosting service, CLOUD or online services.
The Software may cause the Client's computer, without prior notice and on an intermittent or regular basis, to automatically connect to the Internet to facilitate the Client's access to content and services provided by 3DVista or by third parties (Online Services).
However, the use of this service implies the acceptance by the Customer of a separate licence agreement ("Hosting Agreement", "Cloud Agreement").
14. Term and termination
14.1 License Term. The license granted to the Licensee is perpetual. Therefore, it shall not terminate except upon the non-payment of the licensing price or failure to comply with the terms of the license. Upon termination of license for these causes, Licensor reserves the right to revoke license keys and unregister licenses from Licensee’s devices.
14.2 Termination. This Agreement may be extinguished by the general causes established by applicable law and the causes established in this section.
- Termination for Non-Compliance. If one party
defaults in the performance of any material provision of this Agreement then the non-defaulting party may
give written notice to the defaulting party that this Agreement shall be immediately terminated unless the
default is remedied within fifteen (15) calendar days.
This license and the Licensee 's right to use the Software terminate automatically if, after failing to remedy within the above defined period, the Licensee continues to fail to comply with any provisions of this Agreement.
- Termination for Insolvency. Either party shall have the right to terminate this Agreement, without notice, upon (a) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party's debts, (b) the other party's making an assignment for the benefit of creditors or (c) the other party's dissolution or ceasing to do business.
- Force Majeure. Either party may, by notice to the other party, immediately terminate the Agreement if the other party is unable to perform a material obligation under the Agreement for thirty (30) calendar days or more due to Force Majeure.
14.3 Consequences of Termination. Upon termination of this Agreement for any reason, the license and the Licensee’s right to use the Software will terminate automatically. Licensee will destroy or return to us all copies of the Software and documentation. Termination for breach of the present agreement shall not give rise to restitution of the purchase price paid for the license.
15.1. Unless otherwise solicited by the client in written form, 3DVista may use Licensee’s name and corporate logo for the sole purpose of identifying Licensee (or their employer, as the case may be) as a customer of 3DVista on their website and/or client lists. 3DVista may publish and freely distribute this information.
15.2. 3DVista will not disclose any information beyond the name and corporate logo (e.g. use cases, feedback & testimonials, website links etc.) without Licensee’s prior consent. 3DVista will never publish Licensee’s contact information (i.e., it will not appear on our customer list) without their prior written consent.
15.3. 3DVista will comply with any logo usage guidelines that Licensee may provide and will promptly fix any defect that Licensee brings to 3DVista’s attention. 3DVista may use Licensee’s name and logo, along with any information voluntarily provided upon permission by the Customer according to Section 15.2. (e.g. public website link, quote, and any other information for such purpose) to develop case studies, press releases, and other marketing pieces in any form (e.g., print, audio, video, and other formats) that pertain to Licensee’s use of 3DVista products or services.
15.5. 3DVista is not obligated to publish or otherwise use any information or logo that Licensees may provide. The rights that the Licensee grants to 3DVista are without any fee or royalty.
15.6. Licensee can, in written form, limit or deny 3DVista ’s right to publicly identify him/her as a customer.
16. Miscellaneous Provision
16.1 This is the entire agreement between us relating to the contents of this package, and supersedes any prior purchase order, vendor contract, communications, advertising or representatives concerning the contents of this package or download.
16.2 No change or modification of this Agreement will be valid unless it is in writing and is signed by us.
16.3 The Licensee is not entitled to assign or subcontract any of its rights or obligations under this Agreement or appoint any agent or sub-distributor to perform such obligations.
16.4 All updates are included within the definition of the term Software and are subject to all the terms and conditions set out in this Agreement.
16.5 Independency. Licensor will, at all times, be an independent contractor, and not an employee or agent, of the Licensee in connection with the performance of this Agreement.
17. Legal right to withdraw from service
The legal right of withdrawal is only applicable to consumers and users. In this sense, Article 3 of the TRLGDCU, establishes that for the purposes of this rule, consumers or users are natural or legal persons acting in an area unconnected with a business or professional activity. Therefore, natural or legal persons who, when contracting the service, are carrying out a professional or business activity will be excluded.
Therefore, once the client has downloaded the 3Dvista software, they will not be able to request a refund of the amount paid under any circumstances.
18. Validity & Clause Divisibility
Should any of the above clauses be invalid, this does not affect the validity of the remaining clauses. Should any one of the stipulations of the present agreement become null and void or have no force of obligation or be inopposable, this shall not entail the other stipulations becoming null and void, having no force of obligation or being opposable; these stipulations shall maintain their full effect.
19. Applicable Law and Jurisdiction
The terms of this Agreement shall be governed by and construed in all respects in accordance with the Spanish law.
The Parties jointly declare that, to the extent reasonable, any dispute arising in connection with, or arising out of, this Agreement shall be resolved by mutual negotiation and consultation. In the event that no satisfactory solution is reached, such dispute shall be submitted to the Courts of the city of Granada.