Terms of Service
“Aerys” means Aerys, a French company registered with the Créteil Trade register under n° 520 907 585, having its registered office at 1 rue Jean Le Galleu, 94200 Ivry sur Seine, France.
“Associated Services” means the services related to Minko and provided by Aerys to Customer. The content and scope of Associated Services are specified in the applicable Order.
“Customer” means the natural or legal person entering this Agreement.
“Customer Account” means an account created on the Aerys website, allowing Customer to (i) access Minko, and (ii) manage and order Services.
“Customer Content” means any file uploaded to Minko by Customer as well as the data generated from such file after being processed by Minko.
“Documentation” means the documents provided by Aerys to Customer providing the system requirements and explaining several functionalities of Minko.
“Effective Date” means the date when Aerys starts providing Services to Customer in application of an applicable Order. The Effective Date is specified in the applicable Order.
“Fees” means the fees paid by Customer to Aerys pursuant to the terms and conditions of the Agreement. The Fees are specified in the applicable Order.
“Free License” means the License granted to Customer free of charge.
“Minko” means the web-based software provided to Customer as a service (SaaS), which consists in a web interface allowing Customer to store on cloud services 3D files and display them using a 3D Player and a 3D optimisation module.
“Minko License” means the license to access and use Minko from a Customer Account, which can either be a Free License or a Pro License.
“Pro License” means the License granted to Customer for a Fee.
“Order” means the document(s) issued by Aerys, filled and accepted by Customer, by which Customer orders Minko License(s) and/or subscribes to Associated Services.
“Party” means Aerys or Customer, both together referred to as the “Parties”.
“Services” means Minko, the Minko License(s) and the Associated Services provided by Aerys to Customer.
“Subscription” means the charged Services subscribed by Customer and described in the applicable Order(s).
2. SCOPE OF THE AGREEMENT
The Agreement is made between Customer and Aerys. The Agreement governs provision of Minko, Minko License(s) and Associated Services to Customer (the “Services”). Customer can order from Aerys either free Services comprising a Free License and limited Associated Services, or charged Services comprising a Pro License and extended Associated Services. The Minko License (Free License or Pro License) and the description of Associated Services are specified in the Order. Customer can order or upgrade Services from Customer Account.
If any provision in this document is inconsistent with any other in an applicable Order, the provisions of the applicable Order shall prevail.
3. LICENSE RESTRICTIONS
All the rights granted to Customer on Minko are subject to the respect by Customer of all the terms and conditions set forth in the Agreement.
Except to the extent expressly permitted by applicable law, and only to the extent that Aerys is not permitted by such applicable law to exclude or limit the following rights, Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of Minko or of any part of it. In addition, Customer may not (i) reproduce Minko, or (ii) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on Minko or on any part of it.
Aerys reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement. Customer understands and agrees that (i) Minko is protected by copyright and other intellectual property laws and treaties, (ii) Aerys owns the title, copyright, and other intellectual property rights in Minko, (iii) Minko is licensed and no intellectual property rights on Minko are transferred to Customer, and (iv) this Agreement does not grant Customer any rights to Aerys’s trademarks or service marks.
4. PROVISIONS APPLICABLE TO FREE SERVICES
The provisions of this Section only apply to Services provided by Aerys to Customer free of charge.
4.1. Rights granted to Customer under the Free License
Under the Free License and unless stated otherwise in the applicable Order:
- Aerys grants a worldwide non-transferable and non-exclusive license to access and use Minko from Customer Account solely for Customer’s own internal evaluation purpose;
- Customer is expressly prohibited from using Minko or the Documentation for the business needs of Customer or in a production environment;
- the Free License is provided free of charge and for an unlimited duration until one of the Parties terminates the Agreement.
All license limitations specified in the Agreement also apply to the Free License.
4.2. Associated Services
The Associated Services provided free of charge by Aerys are listed either on the applicable Order, either on the Aerys website.
Unless stated otherwise in the applicable Order, free of charge Services are provided for an unlimited duration until one of the Parties terminates the Agreement.
Notwithstanding anything otherwise set forth in this Agreement, Customer understands and agrees that Minko is provided “as is” and that Aerys does not provide any warranty for the Services provided free of charge.
Notwithstanding anything otherwise set forth in this Agreement, Aerys may terminate any Services provided free of charge at any time and for any reason upon a seven (7) days written notice sent to the email address specified by Customer in the relevant Customer Account.
4.3. License granted to Aerys on Customer Content
Notwithstanding anything otherwise set forth in this Agreement, Customer expressly grants Aerys a worldwide and non-exclusive right to reproduce and display Customer Content in part or in full for Aerys’s demonstration, communication and advertisement needs (i) on Aerys website and blog, and (ii) on any communication documents used for prospecting purposes.
This license is granted by Customer to Aerys for the duration of the Agreement.
In the event Customer removes Customer Content from the Services, switches to charged Services or terminates the Agreement, Customer may request the removal of any reproduction or representation of Customer Content on Aerys website and blog as well as from communication documents used for Aerys’s prospecting purposes. Customer shall list in his request the Customer Content concerned and provide precise information on the location of such content (for example a link to Customer Content on Aerys website or blog) and send it at the following address: email@example.com. Aerys shall then have one (1) week as from the reception of Customer’s request to remove the concerned Customer Content.
Customer shall indemnify and keep indemnified Aerys against any costs, claims, damages, losses and expenses which Aerys suffers which arise as a direct result of any claim that Customer Content infringes the intellectual property rights of any third party.
5. PROVISIONS APPLICABLE TO CHARGED SERVICES
The provisions of this Section only apply to Services provided by Aerys to Customer for a Fee.
5.1. Rights granted to Customer under the Pro License
Under the Pro License, Aerys grants Customer a worldwide non-transferable and non-exclusive license to access and use Minko from Customer Account for the business needs of Customer pursuant to the terms and conditions set forth in the Agreement and for the duration of the Subscription.
All Services are provided for the number of users and the duration set forth in the applicable Order. The content and scope of Associated Services are specified in the applicable Order.
Customer may subscribe to Associated Services from Aerys by filling an Order. The Services become available as from the Effective Date, for the duration specified in the applicable Order (hereinafter referred to as the “Initial Term”). The Fees and conditions applicable to the Services subscribed by Customer are specified in the applicable Order.
If the Subscription is not terminated before its term, it shall then automatically renew for a duration equivalent to the Initial Term (each renewal of a Subscription being referred to as a “Renewal Term”). Customer may prevent the automatic renewal of a Subscription by cancelling the renewal of the applicable Subscription in his Customer Account before the end of the Initial Term or of a Renewal Term.
With regards to Subscriptions with an Initial Term or a Renewal Term equal to or greater than twelve (12) months, Aerys shall send an email notice to Customer at least thirty (30) days before the expiration of the Initial Term or of a Renewal Term, mentioning the coming expiration and potential renewal of the Agreement and the applicable Fees for such subsequent renewal period.
At the end of the Initial Term or of a Renewal Term and if Subscription is not renewed, all charged Services are disabled. The provisions applicable to charged Services no longer apply and the provisions applicable to free Services apply.
5.3.1. Termination of a Subscription by Customer
Customer may terminate a Subscription for any reason by opposing the renewal of the Subscription in Customer Account. The Subscription will be terminated as from the expiration of the Initial Term or of the Renewal Term.
5.3.2. Termination of a Subscription for breach
In the event a Party (the “Defaulting Party”) does not fulfil its obligations set forth in the Agreement with regards to a Subscription (a “Default”), the other Party (the “Notifying Party”) shall send in writing to the Defaulting Party a formal notice by email. Aerys shall use the email address provided by Customer in the Order. Customer shall use the following email address: firstname.lastname@example.org. This formal notice shall list and describe the Defaults resulting from the Defaulting Party.
In the event the Defaulting Party does not remedy to the Defaults within one (1) month as from the date of receipt of the formal notice, the Notifying Party shall be entitled to terminate the relevant Subscription by mere operation of the Agreement.
If Customer is the Defaulting Party, Aerys shall be entitled to immediately stop providing all Services to Customer without prior notice and without any indemnity until Customer remedies to the Defaults.
Failure by Customer to pay the Fees set out in the applicable Order shall qualify as a Default under this Section.
5.3.3. Effects of termination
In the event of a termination of a Subscription:
- Aerys will stop providing the relevant Services to Customer;
- In the event Aerys is the Defaulting Party, Aerys shall reimburse to Customer on a pro rata temporis basis the relevant Subscription Fees for the duration of the Default without this reimbursement exceeding three (3) months worth of the relevant Subscription Fees specified in the applicable Order;
- In the event Customer is the Defaulting Party or Customer decides to terminate the Subscription, Aerys will not reimburse any of the Fees paid by Customer under the Agreement.
In the event of a termination resulting from a force majeure event in the conditions set forth under Section 12. Force majeure of the Agreement, Customer shall not be entitled to any reimbursement of the Fees already paid to Aerys.
The provisions of Sections 5.8, 11, 13, 14, 15, 16 and 17 of the Agreement expressly continue and survive the termination or expiration of this Agreement.
5.4. Payment of the Fees
5.4.1. Payment by Customer
In consideration for the provision of Services, Customer agrees to pay the Fees set forth in each applicable Order.
Unless stated otherwise in the applicable Order(s), all Fees shall be due monthly in advance.
5.4.2. Late payment
Any amounts payable to Aerys by Customer that remain unpaid after the due date shall bear interest from the date payment is due at the set rate of four times the French legal interest rate. Further, Aerys may, without prior notice, immediately suspend the provision of all Services to Customer on all Customer Accounts without terminating Customer payment obligations. In such event, Aerys would resume providing Services to Customer only upon receipt of payment in full of all outstanding amounts (including applicable late Fees and interest).
5.5. Modification of the Fees
In the event Aerys increases the Fees, (i) such increased Fees shall only apply after the expiration of the Initial Term or of the Renewal Term, and (ii) the Subscription shall not automatically renew at the expiration of the Initial Term or of the Renewal Term.
All Fees payable under the Agreement do not include, and shall be increased to include, to the extent required by applicable law, any taxes resulting from the Parties’ performance under this Agreement or in connection with the Services, including sales, use, or excise taxes, and VAT. If Aerys is required to pay such taxes directly, Customer will reimburse Aerys for such taxes promptly upon receipt of an invoice for such payments. Customer shall indemnify, defend, and hold Aerys harmless from and against any and all claims, liabilities, demands, damages, or losses arising in connection with Customer’s failure to pay or reimburse Aerys for applicable taxes.
5.7.1. By Aerys to Customer
Aerys undertakes to provide and to operate the Services in accordance with the terms and conditions and for the Fees specified in the Agreement.
Towards that end, Aerys warrants:
- that Aerys has the full right, power and authority to enter into this Agreement and that entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party;
- that Aerys has full capacity and authority and all necessary licenses, permits and consents to enter into and to perform this Agreement;
- that Aerys is the legitimate owner or licensee of all intellectual property rights and that it has acquired or otherwise obtained all intellectual property rights required for the performance of the Agreement and the provision of the Services to Customer.
5.7.2. Warranty Disclaimer
The express warranties and remedies set forth in this Section are the only warranties and remedies provided by Aerys hereunder. To the maximum extent permitted by applicable law, all other warranties or remedies are excluded, whether express or implied, oral or written, including any implied warranties of fitness for any particular purpose. Aerys does not warrant uninterrupted or error-free operation of the products.
Aerys does not warrant to continuous hardware and Software compatibility of Minko. All information provided regarding the software and hardware compatibility of Minko is provided for information purposes only.
Each Party (hereinafter the “Indemnifying Party”) shall indemnify and keep indemnified the other Party (hereinafter the “Indemnified Party”) against any costs, claims, damages, losses and expenses, including counsel costs and re-tendering charges, which the Indemnified Party suffers which arise as a direct result of any claim that the use by the Indemnified Party of any intellectual property rights in the Services, and/or in Customer Content infringes the intellectual property rights of any third party (hereinafter a “Claim”).
The obligations of the Indemnifying Party under this Section are conditioned upon the Indemnified Party (i) giving prompt written notice of the Claim to the Indemnifying Party; (ii) permitting the Indemnifying Party to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing the Indemnifying Party with such cooperation and assistance as the Indemnifying Party may reasonably request from time to time in connection with the investigation, defense or settlement of the Claim.
Aerys shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Services other than as authorized in this Agreement, or (b) to the extent the Claim arises from or is based on the use of the Services with other products, services, or data not supplied by Aerys if the infringement would not have occurred but for such use. Aerys shall, at its expense and option either (i) obtain for Customer the right to continue using the Services, (ii) replace the Services with a functionally equivalent non-infringing product, (iii) modify the Services so that they are non-infringing, or (iv) stop providing the Services and refund the Fees paid for the infringing Services, pro-rated over a twelve (12) month period from the Effective Date. This Section states the entire liability of Aerys, and Customer’s sole and exclusive remedy, with respect to a Claim.
6. SERIOUS BREACH OF THE AGREEMENT
In the event of (i) a violation of the terms of the Minko License or of a license specified in an Order, (ii) a serious breach of the Agreement by Customer, or (iii) a violation by Customer of a legal obligation, Aerys is allowed with immediate effect, without notice and without any indemnity or reimbursement, to:
- terminate all Customer’s Subscriptions, if any;
- suspend all Customer Accounts ; and / or
- remove all Customer Content from the Services.
7. MODIFICATION OF THE AGREEMENT
Aerys may modify at any time the terms and conditions of the Agreement.
Such modified terms of the Agreement (hereinafter the “Modified Terms”) shall apply as from the day of their acceptance by Customer if Customer uses free Services. Customer will be prompted to accept the Modified Terms when Customer will attempt to use the Services. Refusal by Customer to accept the Modified Terms will prevent access to the Services.
If Customer uses charged Services, the Modified Terms shall not apply until the expiration of the Initial Term or of the Renewal Term. Customer shall receive at least one (1) week before the renewal of the Subscription an email with a copy or a link to the Modified Terms applicable after the renewal of the Subscription. Customer may then decide to disable the automatic renewal of the Subscription if Customer disagrees with the Modified Terms. The automatic renewal of the Subscription shall be considered as the acceptance of the Modified Terms by Customer.
Aerys shall provide Customer with online access to the Documentation free of charge. Aerys does not provide any warranty with regards to the Documentation, including that the Documentation will cover all the functionalities of the Services, that the Documentation will be up to date, or that the Documentation will be error free.
Aerys also provides a public forum in which Customer can seek assistance from the community. Aerys does not provide any warranty, including that Aerys will respond to all requests on the forum or that the content on the forum posted by the community will be error and virus free. Customer is advised to take the necessary precautions especially before implementing the solutions suggested in the forum or clicking on a link to an external website.
The Documentation and the public forum are a basic assistance provided to Customer. If necessary, Customer may subscribe to additional support services from Aerys for a Fee if further assistance is required.
9. CUSTOMER CONTENT
Customer retains all rights on Customer Content and may decide to license and/or transfer all the intellectual property rights relating to Customer Content in any way Customer sees fit.
Customer allows Aerys to reproduce, represent and modify Customer Content on any existing or future support to the extent such reproductions, representations and modifications are required in order to debug or improve the performances of Minko.
10. SECURITY AND DATA BACK UP
Customer shall ensure, in its premises and in connection with the operation of the Services, adequate technical and procedural access controls and system security requirements and devices, necessary for data privacy, confidentiality, integrity, authorization, and virus detection and eradication.
Customer expressly acknowledges that it shall be Customer’s responsibility to maintain secure and complete back-up copies of data that Customer processes using the Services, including Customer Content.
The liability of Aerys is limited solely to the direct damages caused to Customer by the fault of Aerys, excluding any indirect damages, including loss of reputation, loss of a contract, loss of a chance, loss in production, disorganisation Customer’s operations and or loss of data. The aggregate liability of Aerys for all damages and all other losses for any cause arising under the Agreement shall not exceed the total of the Fees invoiced by Aerys and paid by Customer pursuant to the Agreement for the last six (6) months prior to the day Customer notified the damage(s) to Aerys.
12. FORCE MAJEURE
Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of force majeure event. Force majeure shall be interpreted in accordance with French Law and with the case law from the French Cour de Cassation. Nothing in the foregoing shall be deemed to relieve Customer of its obligation to pay Fees owed under this Agreement.
The Party relying upon a “force majeure” event shall notify it by registered letter with an acknowledgement of receipt within forty eight (48) hours of its occurrence.
The duration of the interruption of the Agreement shall not exceed seven (7) calendar days. After such period of time, the Agreement may be terminated outright by registered letter with an acknowledgement of receipt by either Party unless a better agreement is reached by the Parties.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the Parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The Parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
Performance of any obligation required by a Party under the Agreement may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one Party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to”.
16. ENTIRE AGREEMENT
This Agreement is intended by the Parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both Parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement may be modified or amended except by a written addendum to the Agreement expressly signed by a duly authorized representative of each Party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.
17. GOVERNING LAW AND JURISDICTION
This Agreement is governed by French Law.
Pursuant to the provisions of article 48 of the French Code of Civil Procedure, failing an amicable agreement between the Parties with respect to any dispute relating to the interpretation, performance or termination of this Agreement, exclusive jurisdiction is expressly granted to the competent Courts of Paris, France.