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THESE TERMS OF SERVICE GOVERN YOUR USE AND ACCESS TO THE FILMETRICS PROFILMONLINE PLATFORM, WHICH INCLUDES THE PROFILMONLINE WEBSITE AND OUR PROPRIETARY, EMBEDDABLE 3D VIEWER (the “Services”).
BY ACCEPTING THESE TERMS OF SERVICE (the “AGREEMENT”), EITHER BY CLICKING THE SIGN UP BUTTON, THEREBY INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM OR OTHER ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT, OR BY USING THE SERVICES YOU (hereafter, “You”, “Your” or “Customer”) AGREE TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND FILMETRICS, INC. (“Filmetrics”, “we” or “us”) AND YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS.
The effective date of this Agreement (the “Effective Date”) is the earlier of the date that you accept this Agreement by registering with us, clicking your acceptance or the date that you first use the Services and may be amended only as set forth herein.
These Terms of Services were last updated on December 10, 2017.
Table of Contents
1.1 Free and Paid Service. Filmetrics provides a limited functionality version of the Services at no charge (the “Free Services”). Filmetrics provides (or anticipates providing) an enhanced version of the Services with additional functionality as a paid service (the “Paid Services”). Both the Free and Paid Services are made available on a hosted basis through the Filmetrics ProfilmOnline platform, accessible to you only over the internet. Subject to your payment of the applicable fees that are charged for the Paid Services, and your adherence to the terms and conditions of this Agreement, Filmetrics hereby grants you a non-exclusive, non-sublicensable, non-transferable limited license to use the applicable Services for your personal use (and not on behalf of any other person or entity).
Descriptions of the Services, and pricing if applicable, will be available at https://www.profilmonline.com/. We may modify the Services and related terms from time to time in our sole discretion.
1.2 Account Set Up. You must set up an account with Filmetrics in order to take full advantage of the Services. You agree to provide only accurate and true information in connection with the creation of your account, and to update your information as necessary so it remains accurate and current. You may not transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services. You will have the ability to pick an available username to link to your account. We retain the right at any time to deactivate, reallocate or rename your username in our sole discretion.
2.1 Fees. Our pricing for Paid Subscription Services, if applicable, will be set forth at https://www.profilmonline.com/. Unless otherwise set forth on an Ordering document, we bill monthly, with the first payment due as of the subscription start-date and monthly thereafter. Subscription fees are quoted and payable in United States dollars. Payment obligations are non-cancelable, and fees paid are non-refundable.
2.2 Fee Changes. Filmetrics, in its discretion, reserves the right to change Fees for Services at any time. You acknowledge that Filmetrics may, from time to time, add additional features or functionality to the Services, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees. We will provide you at least 1 month notice of forthcoming Fee changes. Your continued use of the Services after the Fee change constitutes your acceptance of the new Fees.
2.3 Payments. You will pay Fees via credit card or by other means specified by Filmetrics in an applicable Order Form. If You are making payments for Fees via credit card, You will provide accurate payment information, and You hereby authorize Filmetrics to charge such credit card for all Fees due. All payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. If Filmetrics has not received payment of Fees by the applicable due date, then Filmetrics may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) condition future Services on payment terms shorter than those specified herein. If You have elected to pay Fees via credit card and the credit card is charged back to Filmetrics or if any Fees invoiced to You are not paid within thirty (30) days of invoice, Filmetrics may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your Services until payment is made; and/or (iv) immediately terminate the applicable Order Form for which Fees were due and/or terminate this Agreement.
2.4 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes (except those based on Filmetrics' income) associated with the Services purchased hereunder, and will pay, indemnify and hold Filmetrics harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest.
3.1 User Content. "User Content" includes all the 3D models, images, audio, and related content created by Users, as well as User comments regarding the User’s own Content or other User Content, uploaded by Users, that make up the Services. Except as otherwise set forth in this Agreement, we do not claim ownership over any User Content. User Content that you do not make available on any public portion of the Site is “Restricted User Content.” User Content that you make available on any public portion of the Site is “Publicly Available User Content”).
3.2 User Content Licenses.
3.2.1 With respect to Restricted User Content, you grant Filmetrics and its subcontractors and vendors as applicable a worldwide, non-exclusive, royalty free, limited right to use the Restricted User Content as necessary to provide the Services to you.
3.3 Responsibility for Your Content You are solely responsible for ensuring that any User Content you submit to the Services complies with any applicable laws and third party rights, including but not limited to any intellectual property rights, privacy rights and publicity rights. By submitting User Content, you represent and warrant that (i) you own or otherwise control all of the rights to your User Content and have obtained all necessary consents required to use your User Content in connection with the Services, (ii) the use of your User Content does not violate this Agreement or the law, and will not violate any rights of or cause injury to any person or entity. We reserve the right to remove User Content from the Services, in whole or in part, without prior notice, for any reason or for no reason, including if we are properly notified that User Content infringes on another's intellectual property rights. We also reserve the right to terminate the account of any User of the Services who has been notified of infringing activity. We reserve the right to decide whether User Content is appropriate and complies with this Agreement for violations other than violations of intellectual property law. You are solely responsible for safeguarding your User Content, and Filmetrics has no duty to store copies of User Content for future availability to you or any user except as otherwise provided under this Agreement. You agree that you bear all risks associated with your User Content. You remain the owner of your User Content at all times, and Filmetrics does not claim any ownership rights in your User Content.
4.1 Filmetrics Content Ownership. "Filmetrics Content" includes all of the images, text, information, data, audio, video, graphics and other material included on or otherwise made available through the Services, excluding User Content. All Filmetrics Content is owned by Filmetrics, Inc. or its licensors, and is protected by U.S. and international copyright laws, trademark laws and/or other proprietary rights and laws.
4.2 Filmetrics Services Ownership. As between you and Filmetrics, Inc. and its licensors, Filmetrics, Inc. or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, all Software (as defined below) and systems accessed through the Services, all documentation, usernames or storage or other resources that may be assigned to you ,and all Filmetrics Content that we or our licensors create and that we make available to you through the Services, and, all modifications, improvements and derivatives of any of the foregoing, and including without limitation any invention or discovery related to the Services that may be made as a consequence of your using the Services, and including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, database rights and other intellectual property and proprietary rights therein,, and you hereby assign all of your rights therein to Filmetrics (the foregoing are collectively (“Filmetrics’ Intellectual Property”).
The trademarks FILMETRICS and PROFILMONLINE and all associated logos and the other trademarks, service marks, logos and trade names displayed on or in connection with the Services are the registered and unregistered trademarks and service marks of Filmetrics, Inc. or third parties in the United States and/or other countries. You are not permitted to use these Marks without the prior written consent of Filmetrics or such third party which may own the Mark.
Your use of the Services does not grant you any ownership over any Filmetrics Intellectual Property, and except for the limited license we grant you under this Agreement, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Filmetrics, Inc. or any third party. We reserve all rights not expressly granted to you in this Agreement.
4.3. Service and Content License. Subject to any payment obligations for Paid Subscription Services and subject to all other terms of this Agreement, we grant you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, during the term of your subscription. Except as expressly permitted in this Agreement, you may not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any portion of the Services or Filmetrics Content or other Filmetrics Intellectual Property for any purpose without express prior written permission from us or the applicable rights holder. Any commercial exploitation of the Services, Filmetrics Content or other Filmetrics Intellectual Property without express prior written permission from us or the applicable rights holder is strictly prohibited.
4.4 Software. All software and software-as-a-service (SAAS) used in connection with the Services ("Software") is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such software to human-readable form is prohibited. You agree that we may update the Software without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.
4.5 Feedback. In consideration of Your access to the Services, (i) You agree to notify Filmetrics of any problems, bugs, usability or performance or other issues You discover with respect to the Services; and (ii) You may in your discretion share with us suggestions, improvements, ideas for enhancements or other feedback regarding the Services (together, (i) and (ii) are “Feedback”). All Feedback shall be owned exclusively by Filmetrics and You hereby assign to Filmetrics all right, title and interest in and to such Feedback.
4.6 Use Restrictions and Obligations
To protect the Services for the enjoyment of all Users, to safeguard our rights in the Services and to ensure that all use is in accordance with the law, You agree that you will not:
4.7 Right to Limit Access, Monitor or Remove. We may, in our sole discretion, refuse to offer the Services to any person or entity. We have the right, but not the obligation, to monitor your use of the Services to determine compliance with the terms of this Agreement. We reserve the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend your access (and therefore, all Users access) to and use of the Services and/or immediately terminate this Agreement if we determine, in our sole discretion, that you are engaging (or have engaged) in any of the prohibited activities set forth in this Section. You agree to inform Filmetrics promptly about any legal complaint, claim or action related to the User Content you have uploaded using the Services.
4.8 Minors. THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 13, and persons under the age of 13 are prohibited from registering with or using the Services. You represent and warrant that you are more than 18 years of age or, if you are above 13 and below 18 years of age, you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
Filmetrics warrants that it is a corporation, limited liability company, or limited partnership validly existing and in good standing under the laws of the state of its organization, and has full power and authority to enter into this Agreement and to carry out the transactions contemplated herein.
WARANTY DISCLAIMER. EXCEPT AS PROVIDED IN THIS SECTION 5, THE SERVICES, WEBSITE AND FILMETRICS CONTENT ARE PROVIDED “AS IS” AND FILMETRICS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND FILMETRICS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES THAT MAY ARISE BY OPERATION OF LAW AND ANY WARRANTIES ARISING FROM COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, FILMETRICS DOES NOT MAKE ANY WARRANTIES THAT ITS SOFTWARE OR SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS THAT (i) THE SERVICES, WEBSITE AND THE FILMETRICS CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (ii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE FILMETRICS CONTENT; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE FILMETRICS CONTENT, AND YOU ACCEPT THE ENTIRE RISK ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES, WEBSITE AND FILMETRICS CONTENT. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. No advice or information obtained by you from Filmetrics, or otherwise through the Services, will create any warranty not expressly stated herein.
IN NO EVENT WILL FILMETRICS BE LIABLE TO YOU, YOUR AFFILIATES, USERS OR ANY OTHER THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA OR YOUR USER CONTENT OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL FILMETRIC’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN THE AGGREGATE THE GREATER OF $100.00 OR THE AMOUNTS PAID BY YOU TO FILMETRICS DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
REGARDLESS OF ANY STATUTE OR LAW THAT CONTAINS A LONGER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION AGAINST FILMETRICS ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR BE FOREVER BARRED.
You agree to indemnify and hold Filmetrics and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys' fees) assessed or incurred by Filmetrics directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (ii) your violation of any third party right, including without limitation any intellectual property, right of publicity, or privacy right; and/or (iii) any claim that any of your User Content caused damage to a third party.
Filmetrics respects the intellectual property rights of others, and complies with the provisions of the Digital Millennium Copyright Act (DMCA) applicable to Internet service providers (17 U.S.C. § 512, as amended). We respond to clear notices of alleged copyright infringement, and infringing materials posted by Users can be identified and removed pursuant to this complaint procedure. In the event you believe that any User Content on the Services infringes your copyright, please file a notice of infringement with us as follows:
10655 Roselle St., San Diego, CA 92121
Electronic notification is preferred. To be effective, any notice submitted must comply with the requirements set forth at 17 U.S.C. § 512(c)(3), and must include substantially the following:
Filmetrics will, upon receiving your compliant notice of copyright infringement, contact the User who posted the allegedly infringing User Content concerning the notice of infringement, and expeditiously remove the allegedly infringing User Content. It is our policy to document all notifications of alleged infringement on which we act. A copy of the notification may be sent to one or more third parties who may make it available to the public. Please be advised that it is our policy to terminate the accounts of users that repeatedly violate this Agreement and/or the DMCA Policy.
If you are a User and material that you have uploaded to the Services has been removed or disabled, you may file a counter-notification pursuant to 17 U.S.C. § 512(g). To be effective, the counter-notification must be a written communication sent to the address listed above that includes the following:
If you have a claim related to trademarks, patents, intellectual property, or any other matter other than copyright, please contact us at email@example.com. Please provide detailed information regarding the nature of your complaint, including but not limited to your name and contact information, the subject matter of the complaint, and any additional information that we may require in order to review the matter and take action (or no action) as may be appropriate. Please be advised that we may share the details of your complaint with the User that owns the User Content that is the subject of your complaint, or with appropriate authorities (including law enforcement authorities) if Filmetrics in its sole discretion believes that such action is necessary, or if we are obligated to do so by law.
10.1 Termination For cause. We may terminate your user account or right to access all or portions of the Services at any time, without notice, for conduct that we believe violates this Agreement and/or is harmful to other users, to Filmetrics, to other service or information providers, or to any third parties and in the event you fail to pay any Fees when due hereunder.
10.2 Modification or Termination For Convenience. You may terminate your use of the Services at any time, at your own discretion, provided that any fees pre-paid by you for the Services shall not be refunded. Filmetrics reserves the right to modify or stop offering all or part of the Services at any time, at its own discretion, in which case we will provide you with one (1) month's notice.
10.3 Transition of Your Content. For a period of thirty (30) days following termination or expiration of the Services, You may retrieve your User Content from the Services. If after such thirty (30)-day period you have not downloaded or retrieved you User Content from the Service, then unless prohibited by applicable laws, Filmetrics may delete or erase any and all of your User Content stored by you or maintained by Filmetrics in connection with the Services. Except as provided in this Section 10.3, Filmetrics shall have no obligation to continue to store or permit you to retrieve any User Content following termination of this Agreement.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) your right to use the Services shall cease, and Filmetrics shall have no further obligation to make the Services available to You; (b) all rights and licenses granted to you under this Agreement will immediately cease; (c) except as provided in Section 10.3, Filmetrics will have no obligation with respect to any of your User Content; and (d) if termination is by Filmetrics for cause or by you during the middle of a subscription term, you will pay any unpaid Fees payable for the remainder of any Paid Subscription License Term in effect prior to the termination date.
10.5 Survival. In addition to the terms of Section 10.4, after any termination of this Agreement and/or after you otherwise stop using the Services, the following will survive and remain enforceable and in full force and effect: (i) all remedies for breach of this Agreement; and (ii) the following sections of this Agreement: Sections 2.4 (Payments), 3.2 (User Content License), 3.3 (Responsibility for Your Content), 4 (Filmetrics Ownership, 5 (Disclaimer of Warranties), 6 (Limitations of Liability), 7 (Time Limit on Claims), 8 (Indemnity), 9 (Intellectual Property Claims); 10 (Termination of the Services), 12 (Governing Law and Jurisdiction); 13 (Changes to Services Terms) and 14 (General).
12.2 Arbitration. All disputes arising out of or relating to this Agreement or the Services shall be resolved exclusively by binding arbitration before a single arbitrator (the "Arbitrator") in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA") then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in San Diego, CA, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and ALL USERS WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, a User may at his or her option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Filmetrics does not hereby waive any defense that such jurisdiction may be lacking in the User's jurisdiction.
Filmetrics may update, change or amend these Terms of Service from time to time in its sole discretion without notice to You, and it is Your responsibility to check back often so You are aware of Your current rights and responsibilities. The most current version will be posted by Filmetrics on its Services site, or we may in our discretion send an e-mail notification to registered Users or otherwise notify Users via the Services. Your continued use of the Services after any update or change to these Terms of Service constitutes Your binding acceptance of the updated Terms of Service. If you do not accept the amendment, you must cease use of the Services.
The Services are operated by Filmetrics, Inc., a California corporation. Inquiries regarding the Services should be directed to notices@Filmetrics.com.