BRANDED MOBILE APP GENERAL CONDITIONS
This offer is subject to the 3DVista License Agreement, the Terms and Conditions of 3DVista España S.L., as well as the following purchase terms, and is conditional upon Customer’s agreement to such terms. Customer (in the following also “Client”) shall be deemed to have agreed to be bound by such terms by accepting the Offer and placing the order.
1. Customer wishes to avail the services from 3DVista as an independent contractor for the sole purpose of designing the mobile application contained within this Contract.
2. With the acceptance of this offer, Customer certifies that he/she is in possession of a valid license for 3DVista Virtual Tour PRO and a 3DVista Hosting plan. He/She further agrees that the tours to be included in the app are to be created, maintained and uploaded by the Customer himself/herself onto Customer’s 3Dvista hosting account (app will mirror that content).
3DVista will not be responsible for the content maintenance, the general performance or any consequences from the use of the mobile application.
3. Service: 3DVista offers its 3DVista App as a branded version. Featuring the same functions as the publicly available 3DVista App, the client’s app will feature his/her name and brand and automatically include all tours on client’s 3DVista hosting account. 3DVista will modify 3DVista’s standard application (as it can be found on the Apple and Android Store) for iOS and Android as follows:
- New App Name
- New App Icon: Replacing 3DVista App Icon with client’s own icon
- New Splash Screen: Replacing Loading/Splash Screen with client’s one (to be provided by client)
- The App can be coded so as to contain either
- One single Virtual Tour or
- Several Virtual Tours
- Delete or Replace “Highlighted Tours” Section featured in Standard 3DVista App with client’s own virtual tours or jpg. Maintenance of this content is the client's responsibility.
- The app is multi-language, which means it will display in the language of the device (or in English if the device language is not supported).
- Online Tab can feature one of the two following options (only if the app shall be able to contain several virtual tours):
- Without Log-in
Modification of 3DVista standard app code so as to delete “log-in” option and only show and manage client’s virtual tours hosted on his/her 3DVista hosting account (Portfolio App)). App content will dynamically adjust and update according to the files uploaded to customer’s hosting account via 3DVista VT PRO.
- With Log-in
Maintain Log-in Tab for possibility of app users to log in with their respective hosting accounts. No tours will be displayed by default (without log in) inside the tab.
- If the app(s) are submitted to the App stores by 3DVista. 3DVista will submit app and app info:
- 3DVista will upload client’s app to the iTunes Store and Google Play Store
- 3DVista will submit all general app information requested by both App Stores (previously provided by client)
- 3DVista will submit all screenshots and icons necessary requested by both App Stores
- END RESULT & PRODUCT: 3DVista will upload the final application(s) to the app stores. This will make them publicly available for anyone to download and use. The apps will be listed under the developer account of 3DVista but will carry the customer’s name. Estimated delivery time: 2-3 weeks but depends on client’s cooperation and does not include the approval time inside the app stores (which 3DVista has no influence on).
- If the app(s) are submitted to the App stores by the Customer:
- Support of creation of client’s app store developer accounts (iOS and Android) and implementation of certificates into code (only if client uploads apps)
- Client will need dedicated developer and distribution accounts for both Google Play Store and iTunes Store in order to be able to upload the apps onto his own account. 3DVista will give email support on how to set this up and how to retrieve the necessary certificates. After that, submission is client’s own responsibility.
- END RESULT & PRODUCT: 3DVista will deliver the final .apk and .ipa app files to the client, which the client will submit to the app stores using his/her own developer accounts and at his/her own risk and expense. Estimated delivery time: 2-3 weeks but depends on client’s cooperation and does not include the approval time inside the app stores (which 3DVista has no influence on).
Customer will provide all data and information necessary through the online forms provided by 3DVista.
4. Support Period: 3DVista agrees to provide vigilance and support for the mobile application for 12 months after its approval. The support period should address any sort of bugs, glitches, defects, or changes which pertain to the features. Support does not extend to any malfunctions of the content and virtual tours included in the App. 3DVista shall not create any extra functionality for the application unless specified. The cost of the support period is included in the entire cost of the Project.
5. Price: The price for the development of a branded app is 799€ for apps submitted by 3DVista (VAT excluded, which may apply depending on customer’s location). Apps to be submitted by the Customer have a price of 799€ and a surcharge of 149€ for the integration of Customer’s certificates. Payment is due upfront by online payment.
6. Unless otherwise described in the offer description, this offer does not include any hosting costs, costs for certificates or costs for domains whatsoever.
7. Termination: Termination of the project by the Client must be requested in writing or email and will be effective on receipt of such notice. The Client will be invoiced for design and development work completed to the date of first notice of cancellation for payment in full.
8. Indicated delivery times are only indicative and cannot be guaranteed by 3DVista.
9. Branded Mobile Apps created by 3DVista for the Customer cannot be sold on the app stores, they need to be free of charge.
10. A prerequisite for the proper use of apps and corresponding content is that the App user has compatible devices and software, in particular the compatible version of the operating system intended for the app in question. It is recommended to always use the latest versions of the required software. Regular updates of the user's mobile device may also be required.
11. 3DVista is not obliged to react to comments and ratings of Customer’s App published under 3DVista’s Developer Account.
12. Data Storage. In accordance with the Hosting terms and conditions, Customer acknowledges that Customer’s data will not be stored or maintained on 3DVista’s servers, but that the data will be stored on the servers of a third party service provider, in this case Google Cloud Platform and Google App engine (the “Third Party Server Provider”). Customer represents and warrants that Customer is familiar with the terms and conditions upon which their data will be stored with the Third Party Server Provider. 3DVista shall have no liability with respect to Customer’s data which is stored on third party servers (including for its loss, inaccuracy or corruption). In no event shall 3DVista be liable with respect to the subject matter of this Agreement under any contract, negligence, strict liability or other theory: (i) for interruption of use or for loss or inaccuracy or corruption of data or for cost of procurement of substitute goods, services or technology; (ii) for any matter beyond its reasonable control; or (iii) for any similar claim against Customer or Customer’s affiliates by any other party.
13. Hosting Limit: Should Customer have contracted 3DVista hosting service and in the event of having surpassed a bandwidth limit which is considered abnormally high (roughly 5 times the amount of Gigabytes contracted per day), 3DVista preserves the right to discontinue serving the content for that specific day. Considering the start of a day 00.01 AM PST (California time). See 3DVista Hosting Agreement.
14. Adequate Rights. Customer represents and warrants to 3DVista that: (a) Customer or Customer’s licensors own all right, title, and interest in and to Customer’s Content; (b) Customer has all rights in Customer’s Content necessary to grant the rights contemplated by this Agreement; and (c) none of Customer’s Content, or End Users’ use of Customer’s Content, or the Services Offerings will violate the Acceptable Use Policy. Customer therefore agrees that Content Customer submits to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless Customer has permission from the rightful owner of the material or Customer is otherwise legally entitled to post the material and to grant 3DVista all of the license rights granted herein.
15. Responsibility. Customer shall be solely responsible for Customer’s Content and the consequences of submitting and publishing Customer’s Content on the Hosting and App Service. Customer affirms, represents, and warrants that Customer owns or has the necessary licenses, rights, consents, and permissions to publish Content Customer submits; and Customer licenses to 3DVista all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
- 3DVista shall be liable in accordance with the statutory provisions for damages to the User that were caused intentionally or by gross negligence, that are the result of the non-existence of a guaranteed quality of the subject matter of the service, that are based on a culpable violation of essential contractual obligations (so-called cardinal obligations), that are the result of culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act.
- 3DVista expressly disclaims any and all liability in connection with Content within the App, as Content is managed by the Customer directly. 3DVista does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and 3DVista will remove all Content if properly notified that such Content infringes on another's intellectual property rights. 3DVista reserves the right to remove Content without prior notice.
- In all other respects, liability – irrespective of the legal grounds – is excluded both vis-à-vis 3DVista and vis-à-vis 3DVista’s vicarious agents and assistants.
- If damages to the User result from the loss of data, 3DVista shall not be liable for such damages to the extent that the damages would have been avoided if the User had backed up all relevant data regularly, completely, and with a frequency appropriate to the value of the data.
17. Warranty: 3DVista makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. 3DVista also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Use of any information obtained by way of 3DVista is at Client's own risk, and 3DVista specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection. 3DVista does not represent guarantees of speed or availability of end-to-end connections. 3DVista expressly limits its damages to Client for any non-accessibility time or other downtime to the pro-rata monthly charge during the system unavailability. 3DVista specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
18. Indemnification: Client shall indemnify and hold 3DVista harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against 3DVista directly or indirectly arising from or in connection with Client's marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.
19. License. If the Products and Services include any software or other intellectual property (“IP”), then 3DVista retains ownership of all IP and grants to Customer a limited, single user, non-transferable and nonexclusive license to use the IP in accordance with the documentation only on or with the one computer or system included in the Products and Services or otherwise owned by Customer at the time of this Agreement. If the IP rights granted are restricted in time or application (such as, but not limited to, use with a security device or key, whether tangible or intangible, then the license granted here is limited to use in strict conformance with any and all such restrictions. Customer is not authorized to make copies of the IP except that one copy may be made for nonoperational backup purposes. IP may not be copied, disclosed, rented, leased, sublicensed, modified, reverse engineered in any manner, made available on any network, or any one or more of the foregoing.
20. Intellectual Property & Ownership: The Client has engaged 3DVista as an independent contractor to develop the Project for the Client. The creation of a personalized app does not give the Customer any proprietary rights on the 3DVista software, app or its technology. 3DVista holds the sole ownership of the finished project, including, without limitation all software, notes, code, documents, discoveries, inventions, methods, materials, ideas, and designs. Upon accepting these terms, 3DVista grants to the Client a worldwide, perpetual, non-exclusive, non-transferrable, non-sublicensable, non-resellable and limited license to install, use and offer the App for use to third parties on the App Stores, in exchange for the specified price.
21. Relationship. The Parties acknowledge and agree that the Services performed by the Service Provider, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.
22. Severability. If any provision of this Agreement is determined to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.
23. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of Spain whose courts shall have exclusive jurisdiction over all disputes which may arise between us. Each party hereby submits to the exclusive jurisdiction of the state and federal courts located in Granada, Spain.
24. Marketing Cooperation. Client agrees to allow 3DVista to use Client’s name and Content that is publicly available for general marketing purposes on the 3DVista website and marketing collateral. 3DVista agrees to submit to Client for approval any marketing materials which include their testimonial, quotes or specific case studies including Client’s Content.
25. Force Majeure. Except for the obligation to pay money, neither party will be liable for failure or delay in performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, governmental act or failure of the Internet, provided that the delayed party (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. You may terminate this Agreement without liability immediately if the force majeure event causes a failure or delay in performance that lasts or is expected to last thirty (30) or more days.
26. Language. It is the express wish of the parties that this Agreement and any related documentation be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.
27. Developer Account & Certificates. In the case that the customer himself submits and uploads the apps to the Apple App Store and GooglePlay Store, 3DVista presumes that customer has sufficient technological skills to create their own developer account and export the necessary certificates. 3DVista will send basic instructions as to which certificates are required and how to extract them, but is not responsible for the correct submission of these certificates.