MARXENT 3D CLOUD™ TERMS
These terms (“Terms”) are incorporated by reference into the Master Services Agreement (“MSA”) and any Statement of Work (“SOW”) between Marxent Labs, LLC, a Delaware limited liability company, with its principal place of business at 3100 Research Blvd., Suite 360, Kettering, OH 45420 (“Marxent”), and the client named therein (“Client”), and apply to use of the 3D Application Template (defined below), 3D Cloud (defined below), and the 3D Cloud Subscription Services (defined below).
1. Definitions and Overview
a.“3D Application Template” means Marxent’s pre-built application framework that may be branded to incorporate Client’s content and brand. The 3D Application Template’s functionality, features and components include, but are not limited to, navigation, menu systems, content galleries, design modes, content hotspots, search features, settings, save collections, social media APIs, augmented reality initialization and tracking, diminished reality functionality, image capture, download management, and featured collections. The 3D Application Template may be deployed in mobile apps, website applications and other forms. A branded version of the 3D Application Template incorporating Client’s content and brand shall be referred to as a “Branded Template.”
b.“3D Cloud” means Marxent’s cloud-based content management system that enables the use of Marxent’s 3D Application Template. As between Marxent and Client, Marxent is and shall remain the exclusive owner of all right, title and interest in and to the 3D Cloud. Only current employees or customers of Client shall be authorized by Marxent to access the 3D Cloud on Client’s behalf (each, an “Authorized User”).
c.“3D Cloud Subscription Services” or “3DSS” means hosting, content management and associated support services provided by Marxent to Client for use of the Client’s Branded Template.
The 3D Cloud provides a digital method to show Client’s products or services (alone or in conjunction with third party products) to potential buyers in an augmented reality (“AR”) and/or virtual reality (“VR”) context. The goal is to assist potential buyers to visualize how the Client’s product will look in a particular environment, and thereby help encourage the potential buyer to feel more confident and comfortable to purchase such products directly from Client. Client’s use of the 3D Cloud requires a Branded Template that reflects Client’s brand, products and associated marketing content. The services for setup of the Branded Template referenced in the preceding sentence are covered in the applicable SOW between the parties.
Marxent reserves the right, in its sole discretion, to make any changes to the 3D Cloud that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the 3D Cloud, (ii) the competitive strength of or market for the 3D Cloud or (iii) the cost efficiency or performance of the 3D Cloud; or (b) to comply with applicable law or government regulations.
Marxent may, directly or indirectly, suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other person’s access to or use of all or any part of the 3D Cloud, or Marxent Materials (as defined in the MSA), without incurring any resulting obligation or liability, if: (a) Marxent receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Marxent to do so; or (b) Marxent reasonably believes that: (i) Client or any Authorized User has failed to comply with these Terms or the terms of the MSA or any SOW, or accessed or used the 3D Cloud beyond the scope of the rights granted or for a purpose not authorized under the MSA, any SOW or these Terms or in any manner that does not comply with any instruction or requirement of the specifications included in the Marxent Materials; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) the MSA or applicable SOW expires or is terminated. The foregoing does not limit any of Marxent’s other rights or remedies, whether at law, in equity or under the MSA, any SOW or these Terms.
Client acknowledges and agrees that any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or its Authorized Users relating to the 3D Cloud or Marxent Materials may be incorporated or used by Marxent and Marxent shall be its sole and exclusive owner. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Marxent an assignment of all right, title and interest (including all related intellectual property or similar rights) thereto and, if necessary, any Resultant Data. “Resultant Data” means information, data and other content (including, but not limited to, generic, non-identifiable wireframe designs, meshes, and finishes) that is derived by or through the development of Client’s Branded Template or during processing Client Data (as defined below) and is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content, as well as any information, data or other content derived from Marxent’s monitoring of Client’s access to or use of the 3D Cloud, but does not include Client Data. As between Client and Marxent, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User by or through the 3D Cloud (e.g., Client product pricing, Client product descriptions, Client-specific product images, user names, user contact information, and all other user data collected etc.), other than Resultant Data, including all intellectual property or similar rights relating thereto (collectively, “Client Data”), subject to the rights and permissions granted in this section. Client hereby irrevocably grants all such rights and permissions in or relating to Client Data: (a) to Marxent and its employees, agents and independent contractors as is necessary or useful for use of the 3D Cloud; (b) to Marxent as is necessary or useful to enforce the MSA, any SOW, or these Terms and exercise its rights and perform its obligations hereunder; and (c) to Marxent, for purposes of enhancing the utility of the 3D Cloud and Marxent Materials, so long as such use does not directly or indirectly reveal Client’s identity.
5. Client Responsibility
Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any Authorized User in connection with the 3D Cloud, including all such information, instructions and materials of Client’s suppliers or other third parties; (c) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third party services (“Client Systems”); (d) the security and use of Client’s and its Authorized Users’ log-in information and passwords; and (e) all access to and use of the 3D Cloud and Marxent Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ log-in information and passwords, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (f) Client will maintain responsibility for support from end user feedback via channels such as phone, chat, email, web forms or any other related means. Client agrees to resolve, categorize, prioritize, and track such issues to the best of its ability using documentation and workarounds provided by Marxent prior to escalating an issue for an engineer’s support. In the case that engineer support is required to address an incident (as defined below) with the Branded Template, that incident may be passed to Marxent for resolution and deployment as managed between Marxent and the Client.
6. Intellectual Property Rights
a. If pursuant to a SOW, Marxent is providing services to create or customize 3D models for Client, Client retains all rights in the source material it submits for creation of 3D models and use on the 3D Cloud. Client represents and warrants it has all rights in and to such source material sufficient for both parties to perform the services and enjoy the rights contemplated under these Terms.
b. Upon request, Marxent will provide copies of any 3D models to Client in .obj or .fbx format which Client is free to use for its own purposes; provided that Client hereby expressly agrees not to use any such models in any third-party branded digital 3D Cloud or marketing service directly competitive with the 3D Cloud.
c. Marxent retains the rights to use the 3D models for the purposes of displaying such models on the 3D Cloud to promote Client’s products as contemplated in any SOW and these Terms and for any additional display purposes to provide further visibility for such products within Marxent’s content network.
d. All rights in and to the 3D Cloud, 3D Application Template, Marxent Materials, and any 3D models or content included therein, including but not limited to patent, copyright, trademark, trade dress, trade secrets, or otherwise, are exclusively the property of Marxent. Other than the content and source material furnished by Client for display on the 3D Cloud and the .obj or .fbx copies of 3D models referenced above, Client acknowledges such exclusive rights of Marxent and agrees not to challenge such rights or take any action inconsistent with such rights.
7. Viewing Analytics/Dashboard Access
As part of the 3D Cloud, Marxent provides Client with access to an online dashboard where Client can see aggregated analytical data associated with the viewing of 3D models of Client’s products on the 3D Cloud (number of views per product/sku, timing of views per product/sku, etc.). All data concerning usage of the 3D Cloud, including but not limited to any data accessed via the online dashboard is Confidential Information of Marxent as defined in the MSA. Client is free to use such aggregated analytical information for its own internal purposes, but not for publication, distribution or any other disclosure prohibited by the MSA.
8. Representations and Warranties
Client represents and warrants to Marxent that (a) it has the authority to enter into this Agreement and to furnish all information and materials contemplated hereunder for display on the 3D Cloud without violating any laws or the rights of any party, and that the persons signing this Agreement on behalf of Client are authorized to sign; (b) the products to be advertised by Client comply with all applicable laws, regulations, and industry guidelines applicable to such products, and shall be fit and safe for the use(s) normally and reasonably intended; (c) the products are of merchantable quality and shall perform in conformance with specifications and Client samples; (d) it will comply with all applicable federal, state, and local laws and regulations in performing its obligations under this Agreement, including but not limited to laws and regulations pertaining to product design, manufacture, packaging and labeling and, if applicable, importation and the Foreign Corrupt Practices Act; and (e) any products to be advertised by Client via the 3D Cloud are not produced, manufactured, assembled or packaged by the use of forced labor, prison labor or forced or illegal child labor and that the Products were not trans-shipped for the purpose of mislabeling, evading quota or country of origin restrictions or for the purpose of avoiding compliance with forced labor, prison labor or child labor laws.
Marxent represents and warrants that: (a) it is duly organized, validly existing and in good standing; (b) it has all requisite right, power and authority to enter into these Terms and perform its obligations and grant the rights, licenses and authorizations it grants hereunder; (c) these Terms have been duly authorized, executed and delivered by Marxent, and constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms; and (d) it will comply with all applicable laws in its performance of its obligations and exercise of its rights under these Terms. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, MARXENT HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THESE TERMS, INCLUDING WITHOUT LIMITATION ALL WARRANTIES FOR MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MARXENT MAKES NO WARRANTY OF ANY KIND THAT THE 3D CLOUD OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, PROVIDE ACCURATE PROJECTIONS OR DATA, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT SET FORTH IN THE RELEVANT WRITTEN SPECIFICATIONS), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
9. 3DSS Service Levels
The following service levels apply to the following categories of Incidents (defined below) that may affect 3DSS or the operation of Client’s Branded Template:
a. “Critical Impact Incidents” means a service error affecting the functionality of the 3D Cloud and the customers are unable to use Client’s Branded Template.
- Response time: 30 minutes or less
- Work around or temporary correction within 4 hours
- Permanent correction within 1 business day
- Service Level Credits: 10% of the 3DSS Fees for the month in which the Service Level Failure begins and 5% of such monthly 3DSS Fees for each additional business day that the corresponding Incident remains unresolved.
b. “High Impact Incidents” means functional errors in the Client’s Branded Template or system communication issues that materially impair the customers’ use of Client’s Branded Template.
- Response time: 1 hour or less
- Temporary correction within 24 hours
- Permanent correction within 2 business days
- Service Level Credits: 5% of the 3DSS Fees for the month in which the Service Level Failure begins and 1% of such monthly 3DSS Fees for each additional business day that the corresponding Incident remains unresolved.
c. “Low Impact Incidents” means minor functional errors that can be addressed with a work around or do not materially impair the use of Client’s Branded Template or requests for assistance, information or services that are routine in nature.
- Response time: same business day
- Permanent correction within 5 business days
- Service Level Credits: 5% of the 3DSS Fees for the month in which the Service Level Failure begins and 1% of such monthly 3DSS Fees for each additional week that the corresponding Incident remains unresolved.
d. For purposes of the foregoing, the following terms have the meanings set forth below:
- “Incidents” means, collectively, Critical Impact Incidents, High Impact Incidents and Low Impact Incidents.
- “Service Level Failure” means Marxent’s failure to permanently correct any Incident within the stated time above for permanent correction for the applicable Incident level.
- “Service Level Credits” means the credits set forth with respect to each category of Incidents for which Marxent shall issue to Client, as Client’s sole remedy, for a Service Level Failure.
In the event of a Service Level Failure, Marxent shall issue a Service Level Credit to Client; provided that Marxent shall have no obligation to issue any Service Level Credit unless Client reports the Incident to Marxent immediately upon becoming aware of it and requests a Service Level Credit in writing within five (5) days of the Service Level Failure. Any Service Level Credit will be issued to Client in the calendar month following the calendar month in which the Incident occurred. Notwithstanding the foregoing, for any given month, the aggregate Service Level Credits shall not exceed 30% of the 3DSS Fees for such month. For purposes of determining whether an Incident has occurred, no Incident shall be deemed to have occurred, nor shall any Service Level Failure be deemed to have occurred, if any impairment is due, in whole or in part, to (a) scheduled downtime; (b) downtime or degradation due to a Force Majeure Event (as defined in the MSA); (c) any other circumstances beyond Marxent’s reasonable control, including but not limited to, Client’s or any Authorized User’s use of Third Party Materials (as defined in the MSA) in conjunction or combination with the 3D Cloud or in any manner not expressly approved by Marxent, misuse of the 3D Cloud, or use of the 3DSS other than in compliance with the express terms of the MSA, applicable SOW, and all specifications for the 3DSS included in the Marxent Materials; or (d) any suspension or termination of Client’s or any Authorized Users’ access to or use of the 3D Cloud as permitted under the MSA or applicable SOW. In the event that a Service Level Failure (other than with respect to Low Impact Incidents) occurs in more than three (3) consecutive months during the term of any SOW, Client may terminate the applicable SOW upon written notice to Marxent. This section sets forth Marxent’s sole obligation and liability to the Client for any and all Service Level Failures.