Terms and Conditions
We have developed a web based application, Perfected3D, which allows you to upload and enhance 3 dimensional models ("Models”), and a plugin, Grabit, which you can integrate into your own software to let users select and send Models from your software to our servers, which can process and enhance those Models and make them available to purchase on our website.
We make Perfected3D and Grabit (together, the "Platform") available for your non-commercial, personal, internal use so you can evaluate the Platform (the “Purpose”) for a period of 30 days (the “Evaluation Period”) from signing-up (the “Service”) on the terms set out below, together with all documents and materials mentioned therein (“Agreement”).
The Platform and its associated Service is provided by Whispering Gibbon Ltd a company registered in England and Wales under number 07890248 and whose registered office is at 5 Sunco House, Carliol Square, Newcastle Upon Tyne, NE1 6UF (“we”, “us”, or “our”).
- BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS AGREEMENT.
- IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT GRANT YOU ACCESS TO THE PLATFORM.
- YOU SHOULD PRINT OR SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE.
- IF YOU ARE USING THE SERVICE AS A CONSUMER, AND NOT IN THE COURSE OF YOUR TRADE, BUSINESS, CRAFT OR PROFESSION, CERTAIN ADDITIONAL RIGHTS APPLY (PLEASE SEE CLAUSE 4.5)
PLEASE READ THIS AGREEMENT CAREFULLY TOGETHER WITH ALL DOCUMENTS AND MATERIALS MENTIONED HEREIN. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU WILL NOT BE ABLE TO USE THE SERVICE AND/OR ACCESS AND USE THE PLATFORM.
- In addition to those terms defined above, and unless the context otherwise requires, the following expressions have the following meanings:
- Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
- Client Data means data supplied, input or uploaded by or on your behalf;
- Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Service), finances or business of a party (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party);
- Third Party means any legal person other than you and us;
- The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
Unless the context otherwise so requires:
- references to statutory provisions include those statutory provisions as amended or re-enacted;
- references to any gender include all genders;
- words in the singular include the plural and in the plural include the singular;
- The word, “including” shall be deemed to mean, “including, without limitation” and shall not limit the types or categories to the information or items following such types or categories.
- In consideration of you complying with your obligations under this Agreement, we hereby grant you a personal, non-exclusive, non-transferable, non-sublicensable right and licence to use the Service for the Purpose in accordance with the terms of this Agreement for the Evaluation Period.
- This Agreement and your right to use the Service shall terminate on the earlier of: (i) written notice of termination of either party to the other; or (ii) expiry of the Evaluation Period.
- If you wish to continue using the Service following termination or expiry of this Agreement, we ask that you subscribe in accordance with our standard terms and conditions.
You warrant, represent and undertake you shall:
- comply with all laws, regulations, regulatory policies, guidelines or industry codes (and shall be responsible for obtaining all licences, clearances and consents) which apply to your use of the Service and acknowledge that we are merely a provider of access to the Platform and accept no responsibility for your use thereof or compliance with applicable law or regulation (other than to the extent we are required by applicable statutory law);
- not use the Service for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Service;
- not use the Service for any purpose other than the Purpose, or permit any other person to use the Service on your account or behalf;
- not do, or omit to do, anything which disparages, defames or puts into disrepute us, our trade marks/trading names, goodwill and/or the Service; and
- be and are fully entitled to enter into and grant all rights granted under this Agreement and that entering into this Agreement shall not in any way conflict with any of your existing obligations, either at the date hereof and/or throughout the Evaluation Period.
- The Service is provided “as is”, without warranty of any kind, express or implied (whether by statute or common law), including but not limited to any warranties of merchantability, satisfactory quality, fitness for purpose and non-infringement of copyright, patent, trade mark, or other right, or that it shall be uninterrupted or error free, or entirely secure. In no event shall we be liable for any claim, damages or other liability, including any general, special, indirect, incidental, or consequential damages, or loss of profits, loss of data, goodwill, reputation or wasted management time, whether in an action of contract, tort (including negligence), breach of statutory duty or otherwise, arising from or out of the use of or inability to use the Service. We shall have no responsibility to fix any defects identified in the Service whether or not such defects are notified to us and we shall have no obligation to offer technical or other support.
- Subject to clause 4.4, our aggregate liability in respect of any claims of any kind (whether in contract, tort (including negligence), breach of statutory duty or otherwise, whether foreseeable or not) in any circumstances whatsoever to you arising under or in connection with this Agreement, the provision of the Service, or in respect of your use thereof shall be limited to £1,000.
- Other than to the extent expressly set out in this Agreement, we do not warrant that any data or content which we provide as part of the Service will be accurate, of satisfactory quality or true in any way and such data or content is only provided on an AS IS basis and to the fullest extent permissible at law, we disclaim and exclude any and all warranties, representations, conditions, guarantees and terms which might otherwise be implied in relation to such data or content. Should you wish to rely on any particular data or content provided as part of the Service, you should seek our prior written agreement.
Nothing in this Agreement excludes our liability:
- for death or personal injury caused by our negligence; or
- for fraud or fraudulent misrepresentation; or
- any other liability which cannot be excluded by law.
If you are using the Service as a consumer, which means you are an individual and accessing the Service wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession), then the following terms apply:
- We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if both we and you knew it might happen.
- If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our reasonable installation or other instructions, or having in place minimum system requirements advised by us.
- We are not liable for business losses. If you are a consumer we only supply the Service for domestic and private use. If you use the Service for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of data, loss of business, business interruption, or loss of business opportunity.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party; or
- was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
- is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure; or
- is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any Third Party, or use the other’s Confidential Information for any purpose other than for the purposes of this Agreement.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any Third Party without the participation and/or knowledge of a party hereto.
- Clauses 5.1 - 5.4 shall survive termination of this Agreement, however arising, for a period of five (5) years.
- You shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it.
- Each party shall comply with any obligations it might have under the provisions of the Data Protection Act 1998 and references in this Clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in that Act.
If we process personal data on your behalf, the parties’ record their intention that you shall be the data controller and we shall be a data processor and in any such case:
- you warrant you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with this Agreement on your behalf;
- we shall process the personal data only in accordance with this Agreement and any lawful instructions reasonably given by you from time to time;
- we will not, except as agreed with you, or in accordance with your instructions, carry out any processing of personal data on equipment situated outside the European Economic Area (“EEA”) or transfer any personal data outside the EEA;
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage; and
We shall notify you within a reasonable time, of:
- any request for disclosure of the personal data by a public body or applicable law that could force us to disclose such personal data, unless such notification is forbidden by law;
- any disclosure or accidental or unauthorised access or unlawful processing made by us or our employee, subcontractor or any other identified person or any other security incident which may affect the personal data in any way;
- the known facts in respect of such disclosure or use;
- any personal data that is lost or destroyed, or becomes damaged corrupted, or unusable; and
- any requests received directly from data subjects to disclose personal data and shall promptly respond to any such request but only in accordance with your written instructions.
- You acknowledge that we are reliant on you for direction as to the extent to which we are entitled to use and process any personal data supplied by you or on your behalf. Consequently, we shall not be liable for any claim brought by a data subject arising from any action or omission to the extent that such action or omission resulted from your instructions.
- You shall not (and shall not permit any Third Party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Service in whole or in part, except to the extent permitted by law or with our prior written consent.
- We and/or our licensors own all intellectual property rights in and to the Service. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service or any related documentation. Where the Service comprises tools and/or other features, data, software or other materials which are licensed from a Third Party, you shall comply with all applicable policies, restrictions and limitations relating to use of such Third Party features and shall indemnify (compensate) us against all losses, claims, damages and expenses suffered and/or incurred by us arising out of your failure to do so.
- You shall defend, indemnify (compensate) and hold us and our respective directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your use of the Services otherwise than in accordance with this Agreement or our reasonable instructions; (b) claims from a third party that the Client Data infringes the intellectual property rights or other rights of a third party; (c) any breach of your warranties or representations under this Agreement; and/or (d) any breach by you of applicable data protection, consumer protection, employment or other law or regulation.
- You may not assign or sub-contract the Agreement or any rights and obligations thereunder without our prior written consent. We may assign the Agreement to our Affiliates.
- All notices to be given under this Agreement must be in English, in writing and sent to the other party at the address stated at the head of this Agreement (or using such other contact details as either party has notified to the other).
- No failure by either party to enforce any rights under the Agreement shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
- If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect.
- Other than our Affiliates, a person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
- This Agreement sets out the entire understanding between the parties with respect to the subject matter thereof and replaces and supersedes all prior oral and written representations, arrangements and understandings between the parties relating thereto. Nothing in this clause shall exclude or limit the liability of either party for fraudulent misrepresentation.
- Neither party shall without the prior written consent of the other, at any time from the date of the Agreement to the expiry of 12 months after the last date of supply of the Services or termination of the Agreement, actively solicit or entice away from the other or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other in the provision of the Services.
- We are an independent contractor and neither we nor any of our personnel assigned to provide Services to you under this Agreement will be, or be deemed to be for any purpose, an employee or agent of yours.
- We may use subcontractors to provide the Services provided that we remain solely responsible for the Services of such subcontractors. We shall provide you with details of our subcontractors and the Services supplied by them within a reasonable time of your written request.
- Throughout the Evaluation Period and for 6 months thereafter you shall not, and shall procure that those Affiliates, employees or officers of yours who have used the Service in the preceding 12 months shall not, directly or indirectly develop, contribute to, or have a financial interest in, a service, platform or business which competes with or is likely to compete with, the Platform.
- These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts. The foregoing is subject to mandatory consumer protections which apply in your country, which may offer you additional rights.