License Agreement

The following License Agreement is a legal agreement between you or the employer or other entity on whose behalf you are entering this agreement (“you” or “Licensee”) and Switch 3D Incorporated (“Switch 3D”). This agreement sets forth the rights and obligations with respect to any content licensed by you and applies to licenses issued via the web. By entering into this License Agreement, you verify that your country of residence is the same as your billing address and confirm that you have the capacity to form a contract under its local laws.

Switch 3D reserves the right to modify the License Agreement at any time. Prior to such changes becoming effective, Switch 3D will use reasonable efforts to notify you of any such change via email using the email address on file. Modifications to the License Agreement will only apply to future purchases. By licensing content following such modifications you agree to be bound by the modified License Agreement. Please revisit the License Agreement when you purchase any content licenses to confirm any modifications to the License Agreement.

Definitions

3D Models” means any 3-dimensional, digital representation of a physical product.

Images” means any 2 dimensional representation of a physical product including photographs, 2D renders, vectors, drawings, and the like.

Videos” means any moving images, animations, films, videos or other audio/visual representations. 

Licensed Content” means any 3D Models, Images, and Videos which are licensed to the Licensee by Switch 3D under the terms of this License Agreement. Any reference in this agreement to Licensed Content shall be to each individual item within the Licensed Content and also to the Licensed Content as a whole.

Licensee” means the person or employer or other entity purchasing a license under this License Agreement.

Switch 3D” means Switch 3D Incorporated, its parents, affiliates, subsidiaries, co-venturers and licensed affiliates.

Invoice” means the invoice provided via email by Switch 3D upon order completion that outlines the Licensed Content that is subject to this License Agreement. 

1. Standard Content License

    1.1 Switch 3D hereby grants you a non-exclusive, non-sublicensable, non-transferable right to use, modify, create derivative works, and reproduce the Licensed Content identified in the Invoice worldwide, in perpetuity, as expressly permitted by this agreement and subject to limitations set forth herein.

    1.2 A standard content license grants you the right to use Licensed Content:

    1.2.1 As a digital reproduction, including in websites, online advertising, social media, mobile advertising, mobile apps, software, games, e-cards, e-publications (e-books, e-magazines, blogs, etc.), email marketing, and online media (including video-sharing services such as YouTube, Dailymotion, Vimeo, etc.);

    1.2.2 Printed in physical form as part of product packaging and labeling, letterhead, business cards, point-of-sale advertising material, CD and DVD cover art, or in physical advertising.

    1.2.3 Incorporated into film, video, television series, advertisement, or other audio-video productions for distribution in any medium now known or hereafter devised, without regard to audience size.

    1.2.4 In a multi-media production displayed or distributed via the web, social media, mobile apps, or as otherwise disseminated in accordance herewith.

    1.2.5 For your own personal, non-commercial use (not for resale, download, distribution, or any commercial use of any kind).

    1.3 Restrictions on the use of the Licensed Content. The Licensee may not:

    1.3.1 Use the Licensed Content other than as expressly provided by the licence purchased with respect to such Licensed Content.

    1.3.2 Resell, redistribute, provide access to, share or transfer any Licensed Content except as specifically provided herein. For example and not by way of limitation, the foregoing prohibits displaying Licensed Content as, or as part of, a gallery or marketplace of content through which third parties may search and select from such content.

    1.3.3 Portray any person or object depicted in the Licensed Content in a way that a reasonable person would find offensive, including by not limited to depeciting a person or object: a) in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco, alcohol, or canabis products; c) in a political context, such as the promotion, advertisement, or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering form, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.

    1.3.4 Use any Licensed Content in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.

    1.3.5 Use the Licensed Content in a manner that infringes upon any third party’s trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competitor.

    1.3.6 Use any Licensed Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof.

    1.3.7 Falsely represent, expressly or by way of reasonable implication, that any Licensed Content was created by you or a person other than Switch 3D.

    2. Credit and Intellectual Property

      2.1 No ownership or copyright in any Licensed Content shall pass to the Licensee by the issuance contained in this License Agreement. Except as expressly stated herein, Switch 3D grants the Licensee no other right, express or implied, to the Licensed Content.

      2.2 In connection with the use of Switch 3D or any other its trade names, trademarks, logos or service marks, including the names of all Licensed Content (“Marks”), the Licensee acknowledges and agrees that: a) such Marks are and shall remain the sole property of Switch 3D; b) except as expressly required in order to satisfy the credit obligations of this License Agreement, nothing shall confer upon the Licensee any right to use in or to the Marks; or c) Licensee shall not now or in the future contest the validity of the Marks.

      2.3 If and where commercially reasonable, the use of the Licensed Content in merchandise, or an audio/video production shall be accompanied by a credit to Switch 3D in substantially the following manner: “Image or 3D Model or Video (as applicable), used under license from Switch 3D”

      2.4 In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.

      2.5 Licensee will immediately notify Switch 3D if it becomes aware or suspects that any third party that has gained access to the Licensed Content through Licensee is wrongfully using the Licensed Content, in whole or in part, or is violating any of Switch 3D’s intellectual property rights, including, but not limited to, Marks and copyrights.

      3. Warranties and Representations

        3.1 Switch 3D warrants and represents that the Licensed Content in its original unaltered form and used in full compliance with this License Agreement and applicable law, will not: a) infringe any copyright, trademark or other intellectual property right; b) violate any third parties’ rights of privacy or publicity; c) violate any US or international law, statute, ordinance or regulation; or d) be defamatory, libelous, pornographic or obscene.

        3.2 While Switch 3D makes commercially reasonable efforts to ensure the accuracy of keywords, titles and descriptions, SWITCH 3D MAKES NO WARRANTIES AND/OR REPRESENTATIONS REGARDING ANY KEYWORD, TITLES, OR DESCRIPTIONS. For the sake of clarity, Switch 3D will not indemnify or have any liability in respect of any claims arising from inaccurate keyword, titles or descriptions.

        3.3 SWITCH 3D MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS “WARRANTIES AND REPRESENTATIONS” SECTION.

        4. Indemnification and Liability

          4.1 Provided the Licensed Content is only used in accordance with this License Agreement and the Licensee is not otherwise in breach of this License Agreement and as the Licensee’s sole and exclusive remedy for any breach of the warranties set forth in Section 3 above, Switch 3D shall, subject to the terms of Section 3 above and Section 4.3 below, defend, indemnify and hold harmless the Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or resulting from claims by third parties (“Claims”) relating to any actual or alleged breach by Switch 3D of its warranties set forth in Section 3 above up to but no more than USD $10,000. Switch 3D shall have no obligation under this Section 4.1 for any Claims that arise out of or are a result of: a) Licensee’s modification, overlay or refocusing of the Licensed Content, where the claim would not have arisen but for the modification, overlay or refocusing made by the Licensee; b) the context in which the Licensed Content is used in a Licensee work, where the claim would not have arisen but for such context; c) Licensee’s failure to comply with the terms of this License Agreement; or d) Licensee’s continued use of Licensed Content following notice from Switch 3D, or upon the Licensee’s knowledge, that the Licensed Content is subject to a claim of infringement of another’s right. The foregoing states Switch 3D’s entire indemnification obligation under this License Agreement.

          4.2 Licensee shall, subject to the terms of Section 4.3 below, defend, indemnify and hold harmless Switch 3D and its parent, subsidiaries, commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable attorney fees), arising out of or as a result of claims by third parties relating to: a) Licensee’s use of the Licensed Content outside the scope of this License Agreement, in violation of applicable law and any claims arising out of or due to the Licensee’s particular use; b) any other actual or alleged breach by the Licensee of this License Agreement; or c) Licensee’s failure to obtain any required license or release.

          4.3 The party seeking indemnification pursuant of this License Agreement shall promptly notify the other party of such claim. At the indemnifying party’s option, the indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event the indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by the indemnifying party. The indemnified party shall have the right to participate in such litigation, at its own expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred to the other party giving notice of the claim which indemnification is sought.

          5. Additional Terms

            5.1 All purchases are final upon receipt by the Licensee of an email sent by Switch 3D confirming the order and enclosing the Invoice. Except when required by law, Switch 3D shall be under no obligation to issue refunds under any circumstances. In the event that Switch 3D determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase.

            5.2 If Switch 3D is required to collect indirect and/or transactional taxes (such as sales tax, value-added tax, goods and services tax, et al) under the laws of your state or country of residence, you shall be liable for payment of any such tax. Where Switch 3D or you are required to collect or remit direct or indirect taxes, you may be required to self-assess said tax under the applicable laws of your country of residence.

            5.3 “Non-transferable” as used herein means that except as specifically provided in this License Agreement, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Licensed Content or the right to use Licensed Content. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Licensed Content. If you become aware of any unauthorized duplication of any Licensed Content please notify us immediately via email at support@switch3d.co.

            5.4 Upon notice from Switch 3D or if you learn that any Licensed Content is subject to a threatened or actual claim for which Switch 3D may be liable, or if Switch 3D removed any Licensed Content due to perceived business risk as determined by Switch 3D’s reasonable discretion and gives you notice of such removal, you will remove the Licensed Content from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed content at your own expense.

            5.5 If you use any Licensed Content as part of a work product for or delivered to a client or customer, you will disclose the identities of such clients or customers to Switch 3D, upon Switch 3D’s reasonable request.

            5.6 Upon reasonable notice, Licensee shall provide sample copies of derivative works or reproductions containing Licensed Content to Switch 3D, including by providing Switch 3D with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Content is used. In addition, upon reasonable notice, Switch 3D either may, at its discretion, through its own employees or through a third party, audit Licensee’s records directly related to this License Agreement. If any such audit reveals an underpayment by Licensee to Switch 3D of three (3) percent (%) or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Switch 3D the amount of such underpayment, Licensee shall also reimburse Switch 3D for the costs of conducting such audit. Where Switch 3D reasonably believes that Licensed Content is being used outside of the scope of the license granted under this License Agreement, at Switch 3D’s request Licensee shall provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Switch 3D.

            5.7 This License Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the License Agreement. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.

            5.8 If you are entering into this License Agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Switch 3D for any breaches of the terms of this License Agreement. You hereby grant Switch 3D a worldwide, non-exclusive, limited license to use your trademarks in Switch 3D’s promotional materials, including public customer list. Switch 3D’s use of your trademark shall at all times conform to your then-current trademark use policies as made available to Switch 3D and shall at all times inure to your benefit. Switch 3D further agrees that it will use commercially reasonable efforts to terminate any particular use of your trademark no later than thirty (30) days from the date of receipt by Switch 3D of your email request to support@switch3d.co.

            5.9 Neither party may assign this agreement, without the prior written approval of the other party, except that Switch 3D may assign this agreement to a subsidiary, an affiliated company within the Switch 3D group, the entity that results from a merger or other corporate reorganization involving Switch 3D, or an entity that acquires all or substantially all of Switch 3D’s assets or capital stock.

            5.10 If any individual term of this License Agreement is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding shall be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of this License Agreement, so that this License Agreement shall otherwise remain in full force and effect.

            5.11 You expressly agree that any feedback provided to you by Switch 3D or its representatives regarding any questions you have about this License Agreement or your use of Licensed Content hereunder, is solely for the purpose of interpreting this License Agreement and is not legal advice. Switch 3D cannot render legal advice to you and expressly disclaims any liability of any kind related to any feedback provided by Switch 3D or its representatives.

            5.12 It is expressly understood and agreed that this License Agreement is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties or obligations are intended by this License Agreement as to third parties.

            5.13 Except as specifically provided in Section 4 of this License Agreement, in no event, will Switch 3D’s total aggregate liability to you or any third party claiming through you, arising out of or in connection with your use of or inability to use the Switch 3D websites and/or Licensed Content thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by Switch 3D from you for the applicable Licensed Content.

            5.14 Neither Switch 3D nor any of its officers, employees, managers, members, shareholders, directors, or suppliers shall be liable to you or to any other person or entity for any general, punitive, special, indirect, consequential, or incidental damages, or lost profits or any other damages, costs, or losses arising out of your use of the Licensed Content, Switch 3D’s breach of this agreement, or otherwise, unless expressly provided for herein, even if Switch 3D has been advised of the possibility of such damages, costs, or losses.

            5.15 Except as expressly set forth in Section 3, all Licensed Content is provided “as is” without warranty of any kind, either express or implied, including but not limited to the implied warranties of non-infringement, merchantability, or fitness for a particular purpose. Some Licensed Content may contain elements that require additional clearance if the Licensed Content is modified or used in a particular context. If you make such modifications or use the Licensed Content in such context, you are solely responsible for obtaining any additional clearances thereby required.

            5.16 Switch 3D does not warrant that the Licensed Content, Switch 3D websites, or other materials will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Licensed Content is solely with you.

            5.17 Any use of the Licensed Content in a manner not expressly authorized by this License Agreement constitutes copyright infringement, entitling Switch 3D to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Switch 3D’s other remedies under this License Agreement, Switch 3D reserves the right to charge and Licensee agrees to pay a fee equal to 25 times Switch 3D’s standard license fee for the unauthorized use of the Licensed Content. Switch 3D reserves the right to terminate this License Agreement in the event that Licensee: a) enters the License Agreement after having received notice of unauthorized use from Switch 3D relating to the Licensed Content; b) provides inaccurate information regarding its proposed use of the Licensed Content at the time of entering the License Agreement; c) fails to pay for the Licensed Content on the due date; or d) otherwise breaches the terms of this License Agreement. Upon termination, Licensee must immediately: a) stop using the Licensed Content; and b) destroy or, upon request of Switch 3D, return to Switch 3D the Licensed Content and, in the case of termination by Switch 3D for cause, any derivative works or reproductions in the possession or control of the Licensee.

            5.18 For all Licensed Content that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of Switch 3D, the Licensed Content’s identification number and any other information as may be embedded in the electronic file containing the Licensed Content. Licensee may not make additional copies of the Licensed Content and Licensee shall maintain a robust firewall to safeguard against unauthorized third party access to the Licensed Content.Notwithstanding the foregoing, Licensee may make one (1) backup copy of the Licensed Content for security purposes only.

            Effective date: April 15, 2020