TERMS AND CONDITIONS as applicable to all 3DCLICK Plans
Version May 2019
Article 1. Definitions
In these General Terms and Conditions the following definitions apply:
Account: An account that a Registered User sets up and that is required to use the Platform. The License Agreement determines if and how many Accounts a Registered User can register.
Annual Subscription: A License Agreement closed between 3DCLICK and a Registered User with the initial term of 12 months, according to the conditions as set out in this Terms and Conditions and the respective License Agreement.
Applicable Law: All relevant European, national and regional laws, rules and regulations including but not limited to intellectual property law, privacy and personal data collection.
Catalogue(s): Visual (group of) libraries with a more or less structured databases containing 3D mockups and technical information about each 3D mockup, provided by Registered Users with a License to create and share Catalogue(s).
Content: All information uploaded by any User included in the presentations and in the 3D models and Catalogues configured with the Software, including the Mock-ups, 3D models, graphics, photographs, videos, drawings, texts, conferences, multimedia contents, and any other scientific, artistic, or literary works and presentations, data, images, commercial brands, trade marks, and any other items.
License(s): A license that gives a Registered User the right to use the Platform under specific and express conditions as defined in the License Agreement.
License Agreement or Plan: The agreement between a Registered User and 3DCLICK that stipulates and determines the plan that a Registered User has subscribed to and the conditions and details of this plan.
License Fees: The amount payable by a User as stipulated in the License Agreement.
Monthly Subscription: A License Agreement closed between 3DCLICK and a Registered User for an undetermined period of time according to the conditions as set out in this Terms and Conditions and the respective License Agreement
Platform: The 3DCLICK user interface that is accessible by Users and that allows for collaborative use of the Software.
Registered User: Any natural or legal person that has registered with the Platform and is a licensee to a License.
Software: The programme with the specific information, designs, components and features as described in the applicable License, as provided by 3DCLICK to the User under the conditions as described in these Terms and Conditions and the License Agreement.
Terms & Conditions: These terms and conditions.
Website: and www.instapack3d.com
3DCLICK: Brandname and trademark of 3D Interactive Solutions.
3D Interactive Solutions: 3D Interactive Solutions, S.L., (Registro Mercantil de Pontevedra/ Hoja PO-61850 Tomo 4191 Libro 4191 Folio 176 Inscripción 6a), the company that owns the Platform and Software 3DCLICK and that enters into License Agreement with a Registered User.
Article 2. Applicability
- These Terms and Conditions are applicable to all Plans and License Agreements between the Registered User and 3DCLICK.
- General (purchasing) conditions of the Registered User do not apply.
- Exceptions to these Terms and Conditions are only valid and binding if and insofar these have been agreed between 3DCLICK and a Registered User in written and/or through a License Agreement.
- 3DCLICK has the sole right to unilaterally amend these Terms and Conditions at all times and shall notify the Registered User of such amendment(s) in written and the effective date of such amendment(s).
- If one of multiple provisions in these Terms and Conditions are declared void through judicial intervention, the remaining provisions will remain in full force.
- These Terms and Conditions shall remain in full force in the event that 3DCLICK fully or partially changes name, legal form or owner. 3DCLICK shall, at all times, be entitled to transfer its rights and obligations under this Terms and Conditions to a subsidiary, affiliate or group company.
- The Registered User explicitly declares to have received these Terms and Conditions prior to conclusion of any registration with the Platform and/or prior to entering into any License Agreement. The Registered User also explicitly declares to have read the contents of these Terms and Conditions and to agree with all its conditions and provisions.
Article 3. License Agreement
- Upon acceptance of the terms of these Terms and Conditions and the License Agreement applicable to the plan selected by a Registered User, the License Agreement between that Registered User and 3DCLICK comes into force.
- The License Agreement entails a non-transferable and non-exclusive right for the Registered User to use the Software and Platform subject to the payment of the applicable Licence Fees in force at any time, and in accordance with the provisions of the License Agreement and the Terms and Conditions.
- The Terms and Conditions form an integral part of the License Agreement. In the event of any discrepancy or inconsistency between the provisions of the Terms and Conditions and the License Agreement, the provisions of the latter shall prevail.
Article 4. Term, termination
- When entering into a License Agreement, a Registered User can select a License Agreement or Plan in the form of an Annual Subscription or a Monthly Subscription.
- An Annual Subscription is concluded for an initial term of 12 months. After expiration of the initial term, unless the Registered User terminates the License Agreement at the end of the initial 12-month term by written notice, taking into account a 1 month notice period, the Annual Subscription shall automatically be converted to a Monthly Subscription.
- A Monthly Subscription is concluded for an undetermined period of time and can be terminated at all times by the Registered User taking into account a 1-month notice period.
- 3DCLICK is, at all times, entitled to terminate a License Agreement by sending a written notice (including e-mail), taking into account a 1 month notice period:
a. In the event of an Annual Subscription, at the end of a subscription year;
b. In the event of a Monthly Subscription, at the end of each month.
- Notwithstanding the provisions of this Article, 3DCLICK is entitled to immediately terminate a License Agreement by sending a written notice (including e-mail), without the requirement of prior notice, in the event that:
a. A Registered User infringes Applicable Law and/or any provision of the License Agreement and/or the Terms and Conditions;
b. A (temporary) moratorium of bankruptcy of the Registered User or 3DCLICK or an effective resolution is passed for the winding up of Registered User or 3DCLICK;
c. A situation as described in Article 7.4 occurs;
d. 3DCLICK, in its sole discretion, concludes that a Registered User has given any incorrect information when entering into a License Agreement.
- Expiration or termination of the License Agreement entails de-activation of the Content published or made available by the Registered User, and the termination of the permits granted with the licence acquired upon registration.
- Any Registered User that re-enters into a License Agreement within 1 (one) year of the date of the termination of their License may recover their Content, by accessing with the same e-mail address and password. After this period of time, the Content shall be automatically deleted from the Platform.
- If the Licence Agreement is terminated on any of the grounds as stipulated in section 6 of this Article, the Content of the respective Registered User shall be deleted from the Platform immediately.
Article 5. Blocking of an Account, removal of Content
- Without prejudice to the provisions of Article 4.5, 3DCLICK may at any time and without prior warning, at its absolute discretion, without prior warning and without any right of a Registered User to receive compensation, block access to an Account and/or delete files and/or Content, in the event that any provision from this Terms and Conditions and/or the License Agreement is not being respected, including in the event of improper, incorrect and/or infringing use of the Platform by any Registered User.
- In the event that an Account has been blocked, 3DCLICK shall keep the necessary data and files in the event they need to be used in any litigation before the competent authorities.
- Any Registered User may request to cancel an Account(s) at any time by notifying this to the e-mail address [email protected].
Article 6. License Fees
- The Registered User shall pay 3DCLICK the License Fees.
- Unless agreed otherwise, License Fees shall be paid in Euros and be exclusive of VAT. Should any VAT be due, this shall be payable by the User.
- For an Annual Subscription, the License Fees are payable annually, before the start of each subscription year during the term of the License Agreement. 3DCLICK shall invoice the User annually.
- For a Monthly Subscription, the License Fees are payable monthly, before the start of each subscription month during the term of the License Agreement. 3DCLICK shall invoice the User monthly.
- In the event of premature termination, no repayment of any License Fees takes place.
Article 7. Payment
- The License Fees are prepaid through third party payment providers such as Stripe or PayPal. These payment providers provides services for the issuing, use and management of e-money. These services are offered on the Platform as a means of payment for Licenses. No other method of payment is available on the Platform, unless explicitly agreed otherwise with 3DCLICK or in the event that 3DCLICK offers other payment providers on the Platform.
- 3DCLICK shall at all times be entitled to charge additional administrative fees in the event that a third party payment provider increases its fees and/or in the event that 3DCLICK offers additional or other third party payment providers. In that event, the administrative charges that apply to each payment method shall be communicated to the Registered User prior entering into the License Agreement and/or each extension of a License Agreement.
- By signing up for a License Agreement, a Registered User agrees to be bound by the terms and conditions of the third payment provider used.
- In the event that 3DCLICK does not receive the payment of a Registered User, for example because the payment is blocked, rejected, withdrawn or in any other way unsuccessful:
a. The Registered User is in default immediately without the requirement of 3DCLICK to give notice of default;
b. 3DCLICK is entitled to immediately block all Accounts of that Registered User, suspend all its services and/or terminate the License Agreement immediately;
c. 3DCLICK is entitled to charge on the amount due statutory interest and compensation for (extra) judicial debt collecting costs made by 3DCLICK.
Article 8. Responsibilities of the User
Use of the Account
1. The Registered User is solely responsible for the activities performed with their Account(s).
2. The username and password supplied are identification elements that allow the Registered User to access the Platform, and are personal and non-transferable. Any Registered User must keep its Account identification in a safe place. In the event that a Registered User detects any fraudulent use of their account, they must notify the incident immediately and in writing to 3DCLICK at [email protected].
3. Unless otherwise stated in the License Agreement or Plan, only one account per Registered User is allowed, and no Registered User may access the system using the Account of another Registered User without the express authorization of that Registered User.
4. By posting Content on the Platform, a Registered User expressly acknowledges, guarantees, allows and agrees, except such is expressly agreed otherwise in the License Agreement, that Content can be made public. By designating (a piece of) Content to be public, a Registered User expressly authorizes 3DCLICK to view and to allow all users of the Platform to view this public Content. Once a Registered User has made Content public, 3DCLICK is granted, without financial compensation, and particularly to exploit such Content both for purposes of external and internal communication, and for institutional, events, promotional or advertising purposes, whether within the scope of the Platform or for other purposes, a worldwide, non-exclusive, transferable, sub-licensable, unlimited royalty-free license to use this Content. This license allows 3DCLICK, without limitation, to edit such Content, to include or reproduce it, in whole or in part, to represent it, to translate it, to group it with other Content or elements, to use it and to distribute or spread it, in whatever way, through whatever media. This license shall continue to exist including in the event that the Registered User has edited, redesigned or removed such Content and/or the Registered User has designated that this Content is no longer public.
5. Without prejudice to the foregoing, 3DCLICK reserves the right to refuse or cancel publication of Content at any time, where in its opinion it considers that the publication of the said contents could constitute an infringement of intellectual or industrial property, the rights of children, or rights regarding honour, privacy, and one’s own image.
6. Any Registered User that uploads Content to the Platform is solely responsible for such Content, as well as for making sure that such Content meets the requirements for use and viewing in the Platform. 3DCLICK shall never be liable for any incorrect or defective viewing of the Content uploaded by any User when the Content does not comply with the technical and/or formatting requirements of the Software / Platform.
7. Any Registered User is solely responsible for its communication on the Platform. A Registered User may not, under any circumstances, when communicating on the Platform and/or uploading or creating Content:
a. Publish, advertise, distribute, or disseminate material or information that is harmful, defamatory, unlawful, obscene, or illicit, or Content that incites or excuses the use of violence, weapons, racial or religious hatred or segregation;
b. Use the Platform or Software for the purpose of carrying out any 3D presentation of weapons, or which alludes to, refers to, contains, or entails the direct or indirect use of any kind of weapons;
c. Use the Platform to threaten, bully, or in any way infringe the legitimate rights and interests of third parties (including but not limited to the rights to honour, privacy and one’s own image);
d. Intercept or attempt to intercept e-mail;
e. Upload or create Content that infringes Applicable Law or this Terms and Conditions;
f. Upload files containing viruses or fraudulent data;
g. Remove any authorship notice, legal warnings, or designations of ownership or distinctive signs;
h. Generate or use Content for any other purpose than the creation of mock-ups, presentations, models, etcetera, including, without limitation, any purpose which is outside of the Software’s range of use.
Use of the Platform and Software
8. Any Registered User undertakes not to evade, disable, or tamper with the security of the Platform and/or Software in any way.
9. The Registered User is bound to use Software and Platform appropriately. This means that the use of the Software and Platform includes (but is not limited to) the following principles:
a. The Software can only be reproduced to the extent necessary to load, display, run, transfer or save models and Content at the Platform. A Registered User cannot create, extract or distribute any copy of the Software, or decompile the Software or translate it in any other way in the source code or in any other human legible format;
b. The right to an appropriate use applies to the configurated and established form of the Software;
c. The Registered User that has created Content on the Platform is, when sharing this Content outside the Platform, bound to link to the Platform and use whatever 3DCLICK corporate image usage manual is existent and communicated to the Registered User at any time;
d. The models used by the Registered User which come from the Platform’s libraries can only be modified and edited within the limits as described on the Platform for that specific model. If the Registered User uses such models, the Registered User is bound to respect the formats and, if applicable, whatever 3DCLICK corporate image usage manual is existent and communicated to the Registered User at any time.
10. Except if explicitly stated otherwise in the License Agreement or Plan, a Registered User is not allowed to:
a. Use the Software to create or publish Catalogues, create editing groups on the Platform, or interoperate with third-party data (clients, suppliers, etc) is described.
b. Distribute or make available the Software to third parties. This limitation includes the transfer, sale, leasing, loan, (sub) licensing or any other form of distribution, as well as the exposure and making available the Software, Content and 3D models created in the Software or their printed versions.
Use of third party services through the Platform
12. Unless stated otherwise in the applicable License Agreement or Plan, without the prior written approval from 3DCLICK, no Registered User is allowed to interoperate the Software with third-party software and/or to create any third party liaison through the Platform.
Article 9. Representations and warranties of the Registered User
- Any Registered User represents and warrants to have given true information when subscribing for a Plan.
- Any Registered User, when creating or uploading Content, represents and warrants that it is in possession of the licences, rights, consent, and permits necessary in order to make public the Contents, and that the Content does not infringe any Applicable Law, or any kind of commercial secret, patent, trade marks, or any other third-party rights, and that the Registered User is authorized to proceed directly to the reproduction and public communication (including interactive public communication via the internet) of such Content. Any Registered User must, at the first request of 3DCLICK, be able to immediately provide 3DCLICK with proof of the relevant licences or documents concerning the authorization and/or assignment of rights as stipulated in this section.
Article 10. Undertakings of 3DCLICK
- 3DCLICK warrants that its services are provided conform the description in the License Agreement or Plan and in a professional and workmanlike manner.
- 3DCLICK shall provide the Plan in accordance with the service levels as stipulated in the License Agreement.
Article 11. Intellectual Property of 3DCLICK
- 3DCLICK reserves all intellectual and industrial property rights over the Website, Platform and Software, the design, the images and descriptive information of the images, all content, any multimedia components, as well as the distinctive corporate signs associated with the Website, Platform and Software. 3DCLICK is the exclusive owner of the exploitation, or where appropriate, has the relevant authorities, over the data, programs, procedures, illustrations, photographs, texts, multimedia content, design and distinctive signs in or associated with the Website, Platform and Software.
- A Licence Agreement does not grant the right to change or eliminate information of property, brands, copyright notices or any other brand notices on the Software or in the information of the Software or in the Platform or on the Website.
Article 12. Intellectual Property of the User
- A Registered User does not, by the fact of publishing Content on the Platform, assign any of their rights to 3DCLICK or any other User.
- A Registered User that uses the models or Content of another Registered User, expressly acknowledges that specific terms, instructions or limitations apply to this use, as designated or communicated by this other Registered User. It is a matter between Registered Users to communicate about, commit to and comply with such terms, instructions or limitations. Other than enabling (the communication through) the Platform, 3DCLICK does not play any role in such matters. 3DCLICK cannot be held responsible or liable for any damages resulting from an arrangement between Registered Users or a Registered User and a Passive User that has been breached.
Article 13. Disclaimer
- Any Registered User is solely responsible for placing and using of Content and for the legal consequences that the reproduction and public communication of the said Content may have. As such, any Registered User is solely and exclusively liable for any possible infringements of rights in accordance with the Applicable Law. A Registered User accepts that where anyone files a claim against 3DCLICK in connection with or in relation to Content uploaded or published by a Registered User, the said Registered User shall be liable for all damages, and indemnify and hold harmless 3DCLICK in respect of any losses, harm, or expenses of any kind (including all reasonable lawyers’ costs and fees) that may arise as a result of the said claim.
- 3CLICK shall not be liable for any losses or alterations to Content or other files caused by any unauthorized use that may occur to (an) Account(s) of a Registered User. A Registered User acknowledges and accepts that losses or alterations to Content or other files may happen as a result of failures or incidents affecting the server, unlawful interferences (e.g. hackers), or other reasons beyond the control of 3DCLICK. A Registered User expressly waives any claim for damages against 3DCLICK for any losses or harm that may derive from the loss or alteration of Content.
- In offering the Platform, 3DCLICK makes use of third party servers, for example in the Amazon cloud. 3DCLICK does not warrant that the service will be appropriate or available from any countries or locations. Any Registered User that accesses or uses the Platform from other locations or servers do so at their own discretion and are responsible for complying with Applicable Law, these Terms and Conditions and the License Agreement, holding 3DCLICK completely harmless in this respect.
- 3DCLICK does not warrant that the Platform, Software and the server are free from viruses, and shall not be liable for any possible losses or harm that may derive from interferences, omissions, interruptions, software viruses, telephone breakdowns or disconnections in the operational functioning of this electronic system caused by reasons unrelated to 3DCLICK, or for delays or breakdowns in the use of this electronic system caused by deficiencies in the telephone lines or system overloads on the internet or in other electronic systems, or for any losses that may be caused by third parties by way of unlawful interferences that are beyond the control of 3DCLICK.
Article 14. Limitation of Liability
- A Registered User that infringes any provision of the License Agreement and/or the Terms and Conditions, including a breach of any representation or warranty as defined in Article 9, shall fully indemnify and hold harmless 3DCLICK for any damages incurred (including reasonable attorney fees), including for any damages resulting from a claim that a third party has brought against 3DCLICK.
- 3DCLICK will only be liable for wilful misconduct or gross negligence and, beyond that, does not assume any additional liability. Consequently, 3DCLICK is exonerated from any and all liability claims for damages caused by any legal reason, including, without limitation, claims for damages or claims filed for breach of contractual or precontractual obligations or any other type of obligations.
- Under no circumstances shall 3D Interaction Solutions be liable to a Registered User for any indirect, incidental, special, consequential or exemplary damages arising from the use of the Platform and/or any License, including loss of profits or lost revenues, business interruption or loss of business information, production failure, impairment of other goods or otherwise, even if it has been advised of the possibility of such damages.
- The maximum liability of 3DCLICK will in all cases be limited to the amount of a monthly License Fee as payable by the respective User (either the monthly License Fee in the event of a Monthly Subscription, or the monthly pro rata part of the License Fee in the event of an Annual Subscription), which amount will in no even exceed the amount that the liability insurance of 3DCLICK compensates 3DCLICK for.
Article 15. Force Majeure
- In the event that 3DCLICK is unable to fulfil its obligations following from any License Agreement due to a non-attributable failure (force majeure), the fulfilment of those obligations will be suspended for the duration of the force majeure situation.
- If the force majeure situation continues for more than one month, both 3DCLICK and the User will be entitled to dissolve the License Agreement partly or in full, insofar as the force majeure situation justifies this, all this in accordance with the other provisions in these Terms and Conditions.
- In the event of force majeure applicable to 3DCLICK, the Registered User will not be entitled to any compensation (in damages), not even if 3DCLICK were to have any advantage as a result of the force majeure.
- Force majeure is taken to mean every circumstance beyond the control of 3DCLICK, fully or partially impeding the fulfilment of 3DCLICK’s obligations towards User, or as a result of which the fulfilment of 3DCLICK’s obligations cannot reasonably be required from 3DCLICK, regardless of the fact whether that circumstance could have been foreseen at the time the agreement of services was concluded. Those circumstances will include: measures by any government body, understaffing due to illness, force majeure applicable to a third party that has been engaged, including unscheduled maintenance or other disruptions of the hosting, server or cloud suppliers, technical breakdowns, loss of information or files, all in the broadest sense of the terms.
Article 16. General Provisions
- A Registered User cannot assign, or transfer the benefit of any License Agreement or this Terms and Conditions to any third party without the prior written consent of 3DCLICK.
- The use of the Platform and the Software, as well as the contents of any License Agreement and the Terms and Conditions are subject to Dutch law. In the event that Dutch law cannot be applied, the same shall be subject to Spanish law.
- Any dispute arising out of or relating to this any License Agreement and the Terms and Conditions or use of the Platform will be subject to the jurisdiction of competent courts in the district where 3DCLICK is located, or the competent courts in Amsterdam, The Netherlands. In the event that Spanish law applies following Section 2 of this Article, the same will be subject to the jurisdiction of competent courts in Barcelona, Spain.