LICENSE AGREEMENT TERMS AND CONDITIONS
1. Agreement
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 Sections 10 and 12.
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.
2. Definitions
(a) “3DVista“ or “Licensor” means 3DVista España S.L., Avenida Fernando de los ríos 50, 18006 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").
3. Object
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, and shall not permit any third party to:
(a) create or attempt to create, by reverse engineering, disassembly, decompilation or otherwise, the source code of the Software, or any part thereof, or derive the underlying ideas, algorithms, structure or organization of the Software, except to the extent expressly permitted by applicable law;
(b) remove, alter or obscure any trademark, logo, copyright or other proprietary notices or markings contained in or on the Software;
(c) copy, modify or create derivative works of the Software, in whole or in part;
(d) modify, alter or interfere with any configuration files, metadata, or script files of virtual tours generated by the Software;
(e) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological protection measures implemented by the Licensor, its providers, or any third party (including other Licensees) to protect the Software;
(f) hack into, disable, disrupt, or gain unauthorized access to any part of the Software, or attempt to perform any of the foregoing;
(g) impersonate any person or entity, or falsely state or otherwise misrepresent an affiliation with any person or entity;
(h) use or access the Software for any competitive purpose, including but not limited to the development of competing products or services;
(i) perform or disclose any benchmark or performance testing of the Software without the prior written consent of the Licensor;
(j) use the Software in violation of any applicable law or regulation;
(k) encourage, assist or enable any third party to do any of the foregoing.
The Licensor reserves the right to investigate any suspected violations of these terms and may cooperate with law enforcement authorities in the prosecution of any such violations.
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:
Minimum Windows 10. Minimum 8GB RAM
Minimum Mac OS x 11
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 Services
The Software is provided on an “as is” basis and does not include any guaranteed technical support services.
Licensor shall have no obligation under this Agreement to provide maintenance, updates, support, or assistance of any kind in relation to the Software.
Notwithstanding the foregoing, Licensor may, at its sole discretion and without any legal obligation, respond to Licensee’s inquiries or provide assistance regarding the use of the Software. Any such assistance shall be provided on a best-efforts basis and shall not create any binding obligation or liability on the part of the Licensor.
For the avoidance of doubt, any support or assistance provided by Licensor shall not be construed as a warranty, guarantee, or commitment to resolve any issues, except where required by applicable law.
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 8.4, 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:
Modifications, alterations, or improper use of the Software by Licensee or by any person other than the Licensor.
a breach of the Agreement by the Licensee, including use of the Software by the Licensee or its personnel in a manner or for a purpose not reasonably contemplated by the Agreement or not authorised in writing by the Licensor.
errors, defects, modifications or any other cause attributable to Licensee or third-party Software, components or hardware to which the Software is linked.
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
To the maximum extent permitted by applicable law, Licensor shall not be liable to Licensee for any indirect, incidental, special or consequential damages of any kind, including but not limited to loss of use, loss or inaccuracy of data, loss of profits, business interruption, failure of security mechanisms, or costs of delay, even if Licensor has been advised of the possibility of such damages.
9.2 Indemnification
To the extent permitted by applicable law, Licensee agrees to indemnify, defend and hold harmless Licensor from and against any and all third-party claims, actions or suits, as well as any related expenses, liabilities, damages, settlements or fees (including reasonable legal fees), arising out of or in connection with: (i) Licensee’s use or misuse of the Software; or (ii) any violation by Licensee of the terms of this Agreement.
Licensee shall be solely responsible and liable for all fees and other service charges and for full compliance with all laws and regulations applicable to its business and activities in its jurisdiction.
9.3 Maximum Liability
To the maximum extent permitted by applicable law, Licensor’s total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to direct damages and shall in no event exceed the total amount paid by Licensee for the Software under this Agreement during the twelve (12) months preceding the event giving rise to the claim.
Nothing in this Agreement shall limit or exclude any liability that cannot be limited or excluded under applicable law.
9.4 Force Majeure.
10. Confidentiality and Data Protection
10.1 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.
10.2 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 via privacy@3dvista.com. They may also contact the control authority to claim their rights.
11. Pricing
11.1 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 quote/proforma invoice or on the website <http://www.3dvista.com> at the time of contracting.
11.2 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.
12. Internet Connectivity
12.1 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.
12.2 Pursuant to the Privacy Policy, 3DVista may (a) track website visits through the use of cookies, web beacons, and similar devices and (b) collect and transmit Customer information.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 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 licensees 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 Licensee's computer, without prior notice and on an intermittent or regular basis, to automatically connect to the Internet to facilitate the Licensee's access to content and services provided by 3DVista or by third parties (Online Services).
In addition, the Software may, without prior notice, automatically connect to the Internet to update the downloadable materials of these Online Services to provide immediate availability of these services, even when the Licensee is not connected. If the Licensee accesses a 3DVista Online Service, additional information such as the Licensee's 3DVista username and password may be transmitted to and stored by 3DVista in accordance with the Privacy Policy.
However, the use of this service implies the acceptance by the Licensee of a separate licence agreement ("Hosting Agreement", "Cloud Agreement").
13. Term and termination
13.1 License Term. The license is perpetual unless terminated due to breach. 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.
13.2 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.
13.3 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.
14. Publicity
14.1. 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.
14.2. 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.
14.3. 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 14.2. (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.
14.5. 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.
14.6. Licensee can, in written form, limit or deny 3DVista ’s right to publicly identify him/her as a customer.
15. Miscellaneous Provision
15.1 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.
15.2 No change or modification of this Agreement will be valid unless it is in writing and is signed by us.
15.3 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.
15.4 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.
15.5 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.
16. 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.
In accordance with Article 16.m of the European Directive 2011/83/EU, the right of withdrawal does not apply to the supply of digital content which is not supplied on a tangible medium, when the performance has begun with the consumer's prior express consent and acknowledgment that they thereby lose their right of withdrawal.
Therefore, once the licensee has downloaded and registered the 3DVista Software, it shall be considered that the execution has begun, and the right of withdrawal is forfeited. Under no circumstances shall a refund be issued after the activation of the license.
17. 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.
18. 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.