Application License Agreement
This License Agreement (“Agreement”) is made and entered into as of 12/1/2022 (“Effective Date”), by and between Marxent Labs, LLC (“Marxent”), and The Client (“Client”).
1.1. “3D Cloud” means Marxent’s 3D hosting and 3D content management system (CMS) that enables the use of Marxent’s 3D Applications.
1.2. “3D Applications” means Marxent’s 3D applications that incorporate Client’s content and brand.
1.3. “Authorized Users” means Client’s employees, contractors, customers and affiliates.
1.4. “Client Data” means all information and data in any form or medium, that is received by Marxent from Client or an Authorized User by or through the 3D Cloud, including Authorized User information.
1.5. “Client Materials” means the Client Data and all materials, documents, content, trademarks, and other information, in any form or media, and all Intellectual Property Rights therein, made available to Marxent by or on behalf of Client in connection with this Agreement. Client Materials include any 3D models paid for by Client.
1.6. “Marxent Materials” means the 3D Cloud, the 3D Applications, and all materials, documents, data, systems, content, trademarks, graphics libraries, source code, object code, technology, and other information, in any form or media, and all Intellectual Property Rights therein, developed or acquired by Marxent prior to, during, or after the Term.
1.7. “Intellectual Property Rights” means all patent, copyright, trademark, trade dress, trade secret, know-how, and all other intellectual property rights, whether registered or unregistered, worldwide.
2. 3D Cloud License & Services
2.1. Grant of Licenses. For good and valuable consideration as set forth herein, Marxent hereby grants to Client and its Authorized Users a limited, non-exclusive right and license during the Term to access and use the 3D Cloud and 3D Applications.
2.2. 3D Cloud Services. Marxent services included with Grant of Licenses include:
2.2.1. Hosting & Maintenance
• App monitoring
• 3D model hosting & publication
• Storage of user projects
• User account management
• OS version management (apps & web browsers)
• App updates (up to 1 per year)
• Content updates executed via separate work orders
2.2.2. Merchandising Support
• Product maintenance
• Catalog & business rules maintenance
• Inspiration images (30 included)
2.2.3. Reporting & Planning
• Quarterly business reviews
• Monthly executive updates
• Analytics tracking & insights
• Educational newsletters
• Train-the-trainer program
• Webinar training
2.2.5. Marketing & Promotion
• Promotional videos
• Promotion best practices
• Integration best practices
See Exhibit A for the 3D Cloud Service Level Agreement (SLA).
2.3. 3D Cloud Application Features. Features available in and options associated with each 3D Applications are detailed in the Marxent Product Guide.
3. Client Responsibilities
3.1. Acceptance Testing. Client shall have the right to review and test 3D Application(s). The review period shall not exceed ten (10) business days. Client shall not unreasonably withhold Acceptance. Marxent shall use reasonable efforts to promptly correct any non-conformities and resubmit 3D Application(s) for additional Acceptance Testing. Client shall have an additional five (5) day review period to test the 3D Application(s) to determine if the non-conformity has been remedied. Each 3D Application shall be deemed Accepted by Client upon the expiration of any review period if Client has not delivered a written notice of nonconformity.
3.2. Client Responsibilities. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) Client’s information technology infrastructure, including computers, software, databases, electronic systems and networks, whether operated directly by Client or through the use of third party services; (c) the security and use of Client’s and its Authorized Users’ log-in information and passwords; and (d) support from Authorized User feedback via channels such as phone, chat, email, web forms or any other related means.
3.3. Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, except taxes on Marxent’s income.
4. Term & Termination.
4.1. Term. This Agreement shall commence on the Effective Date and shall continue for three (3) years unless terminated pursuant to this Section (“Term & Termination”). The Agreement will renew annually if no written notice of cancellation is received within thirty (30) days before the end of a renewal period.
4.2. Termination. Either party may terminate this Agreement if the other party materially breaches or is otherwise in material default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of written notice of such default from the other party. Either party may immediately terminate this Agreement by written notice to the other party, if the other party: (i) becomes insolvent; (ii) makes a general assignment for the benefit of creditors; (iii) suffers or permits the appointment of a receiver for its business or assets; becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign; or (iv) has wound up, dissolved or liquidated, voluntarily or otherwise.
5. Intellectual Property Rights.
5.1. Ownership. As between the Client and Marxent, Client is and shall remain the sole and exclusive owner of the Client Materials, including all Intellectual Property Rights therein. As between Marxent and Client, Marxent is and shall remain the sole and exclusive owner of the Marxent Materials, including all Intellectual Property Rights therein. Client retains all rights in the source material it submits for creation of 3D models and use on the 3D Cloud. Client grants Marxent the right to transmit 3D assets via the 3D Cloud.
5.2. Changes and Improvements. 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 the quality, functionality, competitive strength, efficiency, or performance of the 3D Cloud; or (b) to comply with applicable law or government regulations. 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 shall be deemed Marxent Materials.
6.1. Confidential Information. Any party receiving Confidential Information pursuant to this Agreement agrees not to access, use or disclose Confidential Information other than as necessary to exercise its rights to perform its obligations under this Agreement and shall safeguard such Confidential Information from unauthorized use, access or disclosure using at least a commercially reasonable degree of care. “Confidential Information” means receiving party should reasonably be expected to consider, confidential or property, including information relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans, strategies, client lists, pricing, and information with respect to which the disclosing party has confidentiality obligations, in each case whether or not identified as “confidential”. All Marxent Materials and the terms of this Agreement (including pricing) are Confidential Information of Marxent. All Client Materials are the Confidential Information of Client. Confidential Information does not include information that was or becomes generally known to the public other than by breach of this Agreement or receiving party can demonstrate is independently developed by such receiving party without reference to or use of any Confidential Information of the disclosing party. If the party receiving Confidential Information hereunder or any of its representatives is compelled by applicable law to disclose any Confidential Information, then to the extent permitted by the applicable law, the receiving party shall promptly notify the disclosing party in writing of such requirement so that the disclosing party can seek a protective order.
7. Representations & Warranties.
7.1. Each party represents and warrants that it will comply in all material respects with all laws, regulations, and ordinances applicable to such party’s performance of the services and its obligations under this Agreement.
7.2. Client further represents that it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Materials and Client Data so that, as received by Marxent and used in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party.
7.3. Except for the express warranties set forth in this Agreement, Marxent hereby disclaims all other warranties, whether express, implied, statutory or otherwise, with respect to this Agreement, including without limitation all warranties for merchantability, title, fitness for a particular purpose and non-infringement. Without limited the foregoing, Marxent makes no warrant of any kind that any of the Services, the Marxent Materials, any Deliverables, 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, or be secure, accurate complete, free of harmful code, or error free.
8. Indemnification & Insurance.
8.1. Indemnification by Marxent. Marxent shall indemnify and hold harmless Client and its representatives and affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each, a “Client Indemnitee”) from and against any and all losses, liabilities, costs or expenses (“Losses”) incurred by such Client Indemnitee in connection with any claim, suit, action or proceeding by a third party (other than an affiliate of a Client Indemnitee) that arise out of any use of or access to the Marxent Materials by Client as expressly authorized by this Agreement that infringes or misappropriates any United States patent, copyright, or trade secret, all of the foregoing except to the extent caused by Client’s own negligence or willful misconduct. Notwithstanding the foregoing, Marxent shall have no liability or obligation under this Section 9.1 to the extent that such third party action arises from (i) the combination, operation, or use of the Marxent Materials with products, hardware, or services, materials, information, technologies, business processes, or any other technologies or methods that are not provided by Marxent; (ii) any modifications to the Marxent Materials that are not made by Marxent; (iii) failure to use or implement updates or upgrades to the Marxent Materials provided by Marxent; and (iv) use of the Marxent Materials other than in accordance with the documentation and specifications provided by Marxent (events under the foregoing (i) through (iv), collectively, the “Client Indemnity Obligations”).
8.2. Indemnification by Client. Client shall indemnify, defend and hold harmless Marxent and its representatives and affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each, a “Marxent Indemnitee”) from and against any and all Losses incurred by such Marxent Indemnitee in connection with any claim, suit, action or proceeding by a third party (other than an affiliate of a Marxent Indemnitee) that arise out of or relate to any (a) Client Indemnity Obligations, Client Materials, Client Data, or any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client, including Marxent’s compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without contribution by Marxent; (b) Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client or any third party on behalf of Client, in connection with this Agreement, all of the foregoing except to the extent caused by Marxent’s own negligence or willful misconduct.
8.3. Procedures. As a condition precedent to receiving indemnification as set forth above, the party seeking indemnification must promptly notify the other party in writing of any Loss for which the indemnified party believes it is entitled to be indemnified pursuant to this Section.
8.4. Mitigation. If any Marxent Materials are, or in Marxent’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Rights, or if Client’s use of Marxent Materials is enjoined or threatened to be enjoined, Marxent shall, at its discretion and as Client’s sole right and remedy, (a) obtain the right for Client to continue to use the at-issue Marxent Materials materially as contemplated by this Agreement, (b) modify or replace the at-issue Marxent Materials, in whole or in part, to seek to make the at-issue Marxent Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Marxent Materials, as applicable, under this Agreement, or (c) by written notice to Client, terminate this Agreement and refund all prepaid, unearned development Fees related to the terminated Marxent Materials.
8.5. Insurance. Marxent shall maintain in force for the Term of this Agreement and for a period of at least one (1) year thereafter, auto liability and commercial general liability insurance, including technology errors and omissions insurance, product liability/completed operations insurance and contractual liability insurance coverage on an occurrence basis in an amount of Five Million Dollars ($5,000,000) (each, a “Policy”). Marxent may satisfy the above requirements through a combination of its primary and excess liability policies. In addition to the above, Marxent shall maintain in force Workmen’s Compensation Insurance as required by applicable state laws.
9. Limitations of Liability.
9.1. In no event will either party or its respective officers, directors, employees, agents, successors or assigns be liable to the other party for any indirect, special, incidental, punitive, aggravated, exemplary or consequential damages, Losses, costs or expenses of any kind whatsoever (including, without limitation, lost profits and opportunity costs) whether arising in contract, tort or otherwise, even if advised of the possibility of such damages.
9.2. The collective aggregate liability of either party under this Agreement, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability or otherwise, shall not exceed the total fees paid by Client to Marxent during the 6-month period immediately prior to the event causing the liability. The foregoing limitation applies notwithstanding the failure of any remedy of its essential purpose.
9.3. The limitations set forth in Sections 10.1 and 10.2 shall not apply to a party’s obligations arising under Sections 9.1 or 9.2; provided, however, that under no circumstances shall Marxent’s total aggregate liability under Section 9.1 exceed the limits of Marxent’s insurance coverage for such losses.
10.1. Independent Contractor. Marxent is an independent contractor, and this Agreement will not be construed as constituting either party as partner, joint venturer or fiduciary of the other or to create any other form of legal association with the other.
10.2. Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any other states’ choice or conflict of law provisions or rules. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
10.3. Notices. All notices and other communications under this Agreement shall be in writing and will be deemed to have been duly given (a) immediately when hand delivered, (b) immediately when sent by e-mail or (c) when received by the addressee, in each case to the appropriate addresses set forth in the preamble hereto (or to such other addresses as a party may designate by notice to the other parties).
10.4. Amendment, Waiver, Interpretation, Survival. No amendment or modification to this Agreement will be effective unless in writing and signed by both parties. No term or provision hereof will be deemed waived unless such waiver or consent is in writing and signed by the waiving party. If any term or provision hereof should be held to be invalid, unenforceable, or illegal, such holding will not invalidate or render unenforceable any other provision hereof, and the remaining provisions will not be impaired thereby. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement. The terms of this Agreement that would, by their nature, survive termination will survive any termination or expiration of this Agreement.
10.5. Third-Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by the parties hereto, and, subject to the “Indemnification” and “Limitations of Liability” Articles sections hereof, this Agreement will not be deemed to create any rights in any third party.
10.6. Counterparts. This Agreement may be executed in one or more counterparts, each of which will constitute an original but all of which together constitute a single document.
10.7. Entire Agreement. This Agreement, together with all exhibits, attachments and appendices which are incorporated herein by reference, constitute the entire agreement between the parties hereto concerning the matters covered herein and supersedes all prior agreements and/or understandings, between the parties, whether written or oral, concerning the matters addressed herein.
10.8. Marketing. During and following the Term, Client grants Marxent permission to use its name and brand in connection with the Services, as well as for references, case studies, website & marketing collateral materials, including a non-exclusive limited license to use its trademarks in connection therewith.
10.9. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under this Agreement for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (“Force Majeure Event”), including acts of God, fire, explosion, war, terrorism, civil unrest, national or regional emergency, strikes, labor stoppages, any action taken by a governmental or public authority, any government shutdown, or national or regional shortage of adequate power or telecommunications. In the event of any failure or delay caused by a Force Majeure Event, such party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to minimize the effects of such Force Majeure Event.
3D CLOUD SLA
The 3D Cloud Service will, subject to the exceptions listed below, be available at least 99.9% of the time during any full calendar month in Customer’s production environment (“Availability Commitment”). The Availability Commitments do not apply to sandbox, beta and other test environments.
3D Cloud Service Levels. The following service levels apply to the following categories of Incidents (defined below) that may affect 3D Cloud or the operation of Client’s Branded 3D Application(s):
1. “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.
1.1. Response time: 30 minutes or less
1.2. Work around or temporary correction within 4 hours
1.3. Permanent correction within 1 business day
1.4. Service Level Credits: 10% of the 3D Cloud Fees for the month in which the Service Level Failure begins and 5% of such monthly 3D Cloud Fees for each additional business day that the corresponding Incident remains unresolved.
2. “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.
2.1. Response time: 1 hour or less
2.2. Temporary correction within 24 hours
2.3. Permanent correction within 2 business days
2.4. Service Level Credits: 5% of the 3D Cloud Fees for the month in which the Service Level Failure begins and 1% of such monthly 3D Cloud Fees for each additional business day that the corresponding Incident remains unresolved.
3. “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.
3.1. Response time: same business day
3.2. Permanent correction within 5 business days
3.3. Service Level Credits: 5% of the 3D Cloud Fees for the month in which the Service Level Failure begins and 1% of such monthly 3D Cloud Fees for each additional week that the corresponding Incident remains unresolved.
4. For purposes of the foregoing, the following terms have the meanings set forth below:
4.1. “Incidents” means, collectively, Critical Impact Incidents, High Impact Incidents and Low Impact Incidents.
4.2. “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.
4.3. “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 3D Cloud 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 Agreement); (c) any other circumstances beyond Marxent’s reasonable control; 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 Agreement. 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, Client may terminate the Agreement 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.