FACETS Web Download License
Quantum3D, Inc. FACETS® Web Download License
USE OF FACETS MODELS INDICATES YOUR EXPLICIT AGREEMENT TO BE BOUND BY THE LICENSE TERMS SET FORTH BELOW.
a. “Licensee” means the purchaser of the FACETS models who, or which, will be receiving the downloaded models. Licensee may be an individual or a corporation for these purposes.
b. “AuthorizedSite” means a Licensee facility consisting of a home, office, single building or multiple buildings on a contiguous campus.
c. “FACETS” means Q3D’s proprietary 3D model library containing digital representations of entities, including but not limited to Aircraft, Automobiles, other vehicles, and buildings, and includes any associated media, printed materials, online or electronic documentation.
d. “FACETS Binary Format” means a machine-readable only, un-editable version of the FACETS models. Binary models are intended and licensed specifically for use only with systems running Q3D’s MANTIS® Image Generation software, and are typically delivered as files in .vt (Vtree) and .scd data format.
e. “FACETS Source Format” means Q3D’s editable, source code and/or source materials version of the FACETS models. Source code for the models is typically delivered in OpenFlight or similar formats.
2. LICENSE SCOPE
The terms and conditions of this License apply to both Binary Format and Source Format versions of the FACETS collection of models unless expressly stated otherwise; and apply to any corrections, updates, supplements or new releases of FACETS later furnished by Q3D unless such are accompanied by or furnished pursuant to a separate license.
3. LIMITED LICENSE GRANTS
a. FACETS Binary Format License Grant. Subject to the terms and conditions of this License and payment of all applicable license fees, Q3D grants Licensee a revocable, non-exclusive, non-transferable limited license to install and use FACETS on any computers in the Licensee’s possession at any one Authorized Site. Such use license permits Licensee to access, retrieve, reproduce, reformat, print, display, download and store (in machine-readable form), the FACETS models solely in connection with Licensee’s usual internal business activities.
Whereas this License is not intended to prohibit commercial sale of Licensee’s broader products which incorporate FACETS Binary Models as a component, Q3D furthermore grants Licensee the right to sell such products onward to a subsequent end-customer, provided the FACETS Binary Format models remain installed and unmodified on the originally licensed computer, and provided the end-customer similarly as Licensee agrees to the terms of this License.
b. FACETS Source Format License Grant. Subject to the terms and conditions of this License and payment of all applicable license fees, Q3D grants Licensee a revocable, non-exclusive, non-transferable limited license:
(i) to install and use the Source Format version of purchased FACETS models solely at the Authorized Site(s). Such use license permits Licensee to access, retrieve, reproduce, reformat, print, display, download and store FACETS Source Format models solely in connection with Licensee’s usual internal business activities
(ii) to use FACETS Source Format models to modify and create derivative works of FACETS (“Derivatives”); and
(iii) to install and use Derivatives solely at the Authorized Site.
(iv) Whereas this License is not intended to prohibit commercial sale of Licensee’s broader products which incorporate FACETS Binary Models as a component, Q3D furthermore grants Licensee the right to sell Derivatives onward to a subsequent end-customer, provided the models are delivered in FACETS Binary Format (.vt and .scd files only), and remain installed and unmodified on the originally licensed computer, and provided the end-customer similarly as Licensee agrees to the terms of this License for the case of FACETS Binary Format models.
4. LICENSE CONDITIONS AND RESTRICTIONS
a. In addition to the copy or copies of FACETS stored on the Authorized Site, Licensee may make archival copies of the FACETS models at each authorized site for backup purposes. Making any additional copies by any means, including electronic transmission, or allowing any other person to make copies thereof is prohibited, as is giving copies to another person or entity, including, without limitation, a parent company or affiliate of Licensee.
b. FACETS contains valuable trade secrets, know-how and other confidential information proprietary to Q3D. Licensee agrees to use the same standard of care to prevent unauthorized use and disclosure of FACETS as it uses to protect its own confidential information, but in no event less than reasonable and prudent care. Licensee shall not let FACETS be accessed or used by anyone other than Licensee’s employees whose duties require such access or use (provided however that the foregoing limitation shall not preclude Licensee from allowing its authorized consultants and subcontractors to use FACETS models at the Authorized Site, where their use is incidental to such personnel performing services on Licensee’s behalf and under Licensee’s control that are consistent with the license granted to Licensee hereunder and provided Licensee first requires such consultants and subcontractors to sign written confidentiality agreements legally obligating them to observe the same restrictions concerning FACETS as are contained in this License.
c. Except as expressly permitted in this License, Licensee shall not modify, adapt, translate, rent, sublease, assign, loan, sublicense or sell FACETS, or access, retrieve, reproduce, reformat, print, display, download or store FACETS, or create derivative works based upon the foregoing or any parts thereof.
d. Licensee shall not relocate, unbundle, decompile, reverse engineer, or disassemble FACETS.
e. No remote access, time-share, multiplexed or service bureau use of FACETS is permitted. Disabling any FACETS enabling key protection or other licensing control features is prohibited.
f. No identifying marks, copyright, patent or patent pending notices, or proprietary rights notices may be altered or deleted from any copy of FACETS or its packaging.
g. On any Licensee Applications incorporating Derivatives, Licensee shall reasonably display Q3D copyright attribution notices substantially similar to the following (or as otherwise reasonably requested by Q3D) in locations where Licensee normally places proprietary rights notices for the Licensee Application: “Portions of this [computer program/ documentation] are Copyright © 2017 Quantum3D, Inc. All rights reserved.”
h. Other restrictions on the use of FACETS are identified in the “Other Restrictions on Use” section herein.
a. Limited Warranty. Q3D warrants to Licensee that, for a period of thirty (30) days from the date of original shipment from Q3D,.FACETS, when properly installed according to the applicable documentation, will perform in substantial conformance to the stated specifications provided in FACETS documentation (with nonconformance to be determined and established by Q3D exclusively via the applicable Q3D performance verification testing). In the event that Licensee has purchased extended warranty coverage for FACETS from Q3D, the warranty terms of this License shall apply through the extended warranty period.
b. Limited Warranty for FACETS Purchased with Q3D Hardware. If Licensee has purchased FACETS together with hardware products sold by Q3D on which FACETS operates, the foregoing warranty shall be for a period of twelve (12) months instead of thirty (30) days.
c. Remedy For Defective FACETS. If, during the applicable warranty period, (i) FACETS does not substantially conform to the applicable specifications provided in FACETS documentation, (ii) such non-conformity materially affects the functionality of FACETS, and iii) Q3D receives notice of such non-conformity from the Licensee via the Q3D Support Website (www.quantum3d.com/support) or in writing within the warranty period, Q3D will use reasonable commercial efforts to remedy the nonconformity by repairing or replacing the non-conforming FACETS model. In the event repairing or replacing FACETS is not commercially reasonable, Q3D may terminate the license to FACETS and refund the fees received by Q3D from Licensee for the nonconforming FACETS model, pro-rated for usage. The remedies set forth herein shall be Licensee’s sole and exclusive remedy, and Q3D’s entire liability for breach of this limited warranty.
d. Exclusions. The foregoing warranties do not apply to any non-conformance in FACETS (i) resulting from modifications, repairs or alterations, except by Q3D or its authorized representative (excluding Licensee); (ii) resulting from other hardware or software products; (iii) caused by a product for which Q3D is not responsible; (iv) associated with any non-Q3D products, including those that Q3D may procure and provide with or integrate with FACETS at Licensee’s request; (v) caused by operation or use of FACETS outside of its intended use as provided in FACETS documentation; (vi) caused by misuse, abuse, negligence, accident or as a result of being subjected to unusual physical, electrical or environmental stress; or (vii) if the affected FACETS models have not been maintained in accordance with all handling, operating and maintenance instructions supplied by Q3D. Additionally, the warranties set forth herein do not apply (i) to error corrections or updates of FACETS after expiration of the limited warranty period, (ii) or to demonstration or evaluation copies of FACETS.
6. DISCLAIMER OF OTHER WARRANTIES
To the fullest extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. Q3D’s warranties herein extend to Licensee only, and not to any other third parties. Q3D neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of FACETS or performance of services. Any replacement FACETS model assumes the warranty status of the FACETS model being replaced and has no separate or independent warranty of any kind. Q3D makes no warranties or representations that the operation of FACETS will be error free, or that FACETS or the results produced will meet Licensee’s needs or expectations. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, FACETS IS PROVIDED “AS IS” AND Q3D MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Q3D SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Licensee may have other legal rights that vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion of implied warranties, so the above disclaimer may not apply or fully apply to Licensee. In that event, any implied warranties are limited to the lesser of thirty (30) days from the date of purchase of FACETS or the shortest warranty period permissible under applicable law.
7. LIMITATION OF LIABILITY
Q3D'S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES UP TO BUT NOT TO EXCEED THE AGGREGATE AMOUNTS ACTUALLY RECEIVED BY Q3D FOR FACETS. IN NO EVENT SHALL Q3D BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE FACETS, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER Q3D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential element in setting the product price. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply or fully apply to Licensee.
8. RESERVATION OF RIGHTS AND OWNERSHIP
FACETS, including any copies or adaptations and all intellectual property rights therein are the property of Q3D and its third-party suppliers. To the extent permitted by law, Q3D and its third-party suppliers claim United States and foreign copyright ownership with respect to FACETS as compilations and expressions of distinctive and creative formats and content. This License confers no title, ownership or other intellectual property rights in FACETS or any derivative works thereof to Licensee; and Q3D reserves to itself and its third-party suppliers all such rights not expressly granted to Licensee hereunder.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
FACETS is a Commercial, Off-the-Shelf (“COTS”) product developed exclusively at private expense, and is a “Commercial Item” as defined in FAR 2.101. FACETS is licensed with “Restricted Rights” only. Its use, duplication or disclosure by the United States Government or any agency is subject to restrictions set forth in this License and as provided in FAR 52.227.19(c) or DFARS 252.227-7014(b)(3), and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR Supplement. In the event of distribution by the United States Government or any agency of Licensee Applications incorporating FACETS and/or derivative works thereof, Licensee shall include the following legend on all copies:
Portions of this computer program/ documentation are Copyright © 2017 Quantum3D, Inc., ALL RIGHTS RESERVED. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND: Use, duplication or disclosure by the United States Government or any agency is subject to restrictions set forth in the Quantum3D License and as provided in FAR 52.227.19(c) or DFARS 252.227-7014(b)(3) and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR Supplement.
10. EXPORT RESTRICTIONS
Licensee acknowledges that FACETS is subject to United States export jurisdiction. Licensee agrees to comply with all applicable national and international laws and regulations that apply to FACETS, including the U.S. Export Administration Regulations (“EAR”) as well as other end-user, end-use, and destination restrictions issued by the U.S. and other governments. Accordingly, Licensee expressly agrees not to transfer, export or re-export FACETS (directly or indirectly) in contravention of such laws and regulations, and shall indemnify and hold Q3D harmless against any liability (including attorneys’ fees) arising out of Licensee’s failure to comply with the terms of this paragraph.
11. TERM AND TERMINATION
Without prejudice to any other rights, Q3D may terminate this License at any time if Licensee fails to comply with its terms and conditions. In such event, Licensee shall, at Q3D’s option, either return to Q3D or destroy all copies of FACETS and Derivatives and certify such destruction in writing. Upon such termination, Licensee shall forfeit all License payments made to date and shall pay any remaining License sums then due and owing to Q3D. Q3D may resort to any other remedies available at law or in equity. If Licensee has acquired an Evaluation License in FACETS only, this License will automatically terminate upon expiration of the evaluation period. The disclaimers of warranties and damages and limitations on liability shall survive termination.
12. NO RIGHTS IN THIRD PARTIES
Nothing in this License is intended, or shall be construed, as giving any benefits, rights, remedies or claims to any other person or entity, including without limitation the general public, or to authorize anyone not a party to this License to maintain a suit for personal injuries, property damage or any other relief in law or equity in connection with this License or FACETS.
Q3D may freely transfer or assign this License without restriction or notice to Licensee. Licensee may not assign or otherwise transfer its rights or obligation under this License, whether voluntarily or by operation of law, without the prior express written consent of Q3D, and any other such assignment or transfer will be void.
14. GOVERNING LAW, VENUE, OFFICIAL LANGUAGE AND LIMITATION ON ACTIONS
The provisions herein shall be governed in all respects by the laws of the State of California without regard to conflicts of law rules. In the event that a dispute arises, Licensee and Q3D hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, State of California, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of this License. No dispute or legal action arising under this License may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
15. INTERPRETATION, WAIVER AND SEVERABILITY
This License shall be construed and interpreted as to its fair meaning and not strictly for or against either party. No delay or failure by Q3D to enforce any provision or to exercise any right or power under this License shall impair any such right or power or be construed as a waiver unless agreed to in writing signed by an authorized representative of Q3D. If any provision of this License is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
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