LEGAL
Master Service Agreement
Updated January 31, 2023
Effective upon your access and use of the FIT3D Service(s) (as defined below), the execution of this Agreement, or the execution of a Sales Order that includes this agreement, you or the organization you represent ("Customer") agree with FIT3D, Inc., having an address of 400 Capitol Mall Suite 900Sacramento, CA 95814 ("Fit3D") that you have read, understood and accepted all the terms and conditions set forth below and that customer agrees to be legally bound by them as of the first date of customer's access and use of the Fit3D Service(s) (the "Effective Date").
This Agreement, together with the applicable Terms of Service, and Order Form(s), sets forth the terms under which Fit3D will make its Services available to the customer. This agreement includes the terms set forth in any applicable statements of work or Order Forms that reference this agreement, as well as the Fit3D Terms of Service.
IN CONSIDERATION OF the mutual covenants and promises in this agreement, the receipt, and sufficiency of which consideration is hereby acknowledged, FIT3D provides its service (s) to the customer on the following terms:
1. DEFINITIONS:
The following terms shall have the meanings, respectively, ascribed to them below, and, unless the context clearly indicates otherwise, shall include the plural as well as the singular names.
“End User” means an individual that has accepted the applicable privacy policies and terms of use for the specific Integrated Service(s).
"Administrator" means an individual that has accepted the applicable privacy policies and terms of use for the specific Integrated Service(s) and may have access to additional Advanced Reporting Service(s).
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Integrated Service(s)" is defined as the Equipment and Software provided to the Customer to capture a 3D body scan, authenticate End User accounts, process End User measurements, and provide reports to End Users.
"Advanced Reporting Service(s)" is defined as any services offered to End Users or Administrators above and beyond Integrated Service(s). The description and availability of Advanced Reporting Service(s) may change from time to time, but they will be listed in your billing portal or product material as distributed by Fit3D.
"Service(s)" is any mix of Integrated Service(s) and Advanced Reporting Service(s).
“Equipment” means any equipment distributed from Fit3D to the Customer to enable the Service(s).
“Sales Order(s)” is a general term we use to define the commercial agreement between the Customer and Fit3D. This may take the form of the description and prices of the Products and Services below, of terms of service in a Fit3D billing portal, or of terms of service as activated from within your Fit3D account.
“Service Fees” means the fees charged to the Customer by Fit3D for any Service(s). Service Fees may be set forth in the Sales Order(s).
“End User Data” means all information that is collected or processed via the Service(s) about the End User.
"End User Sessions" means any Session where the End User has used the Service.
"Customer Data" means all information that is collected or processed via the Service(s). Customer Data does not include End User Data or Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit through Service(s).
“Enrichment Data” means the data we make available to you as part of the Service(s). Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third-party sources and our internal data processes provided from End User Data or Customer Data.“Activation Date” means the date on which the Service(s) are made available to the Customer.
"Subscription Term" means the term of your subscription to the applicable The Service, as specified on your Sales Order(s), and each subsequent renewal term (if any).
“Equipment Ship Date” means the date on which the Equipment has left Fit3D or Fit3D agent or distributor warehouses.
“Fit3D”, "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Service(s) or receiving and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
2. GENERAL COMMERCIAL TERMS
2. 1. Access. During the Subscription Term, we will provide you access to use the Service(s) as described in this Agreement, applicable Sales Order(s). We might provide some or all elements of the Service(s) through third party service providers.
2.2. Additional Features. You may subscribe to additional features of the Service(s) by placing additional Sales Order(s) (if this option is made available by us.). This Agreement will apply to all additional Sales Order(s).
2.3. Availability. We try to make the Service(s) available 24 hours a day, 7 days a week, except for planned down-time for maintenance.2.4. Fees and Payments2.4.1. Fees and Billing. The Service(s) Fees and Billing will be defined in attached or subsequent Sales Order(s) associated with this agreement.
2.4.2 Payments. Customer shall pay Fit3D the payments as described in the Sales Order ("Payments"). The first payment is due on the date specified in the Sales Order and remaining Payments are due on the same date of each succeeding month. Interest shall accrue at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, from the original due date on all Payments not made by the tenth (10th).
2.4.3. Fee Adjustments During a Term. During the Term, fees may only be adjusted with the express written consent of the Customer and approval by Fit3D.
2.4.4. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Term as defined in the Sales Order(s). You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
2.4.5. Payment against invoice. If you are paying by invoice, we will invoice as per the payment terms in your Sales Order(s). All amounts invoiced are due and payable as specified in the Sales Order(s).
2.4.6 Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Fit3D account or by emailing accounting@fit3d.com. All payments are non-cancelable and all amounts paid are non-refundable, even if you have not yet accepted delivery of the Equipment, except as specifically provided for in this Agreement. All fees are due and payable throughout the Term.
2.4.7 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable specific to your region, state, or country. You agree to pay any taxes applicable to your use of the Service(s).
2.4.8 Deposits. If the Expected Ship date is more than 45 days out, you may be required to pay a deposit to hold your ship date. The deposit will be the greater of $2,500 or 10% of the total amount on your order.
2.5. Service(s) Term, Termination, Suspension, Default2.5.1. Term and Renewal. Your Terms will be specified in your Sales Order(s).
2.5.2. Notice of Non-Renewal. If your Service(s) include a subscription, it will automatically renew according to the ‘Term and Renewal’ as defined in the Service(s) Sales Order(s). Unless otherwise specified in your Sales Order(s), to prevent renewal of your subscription, you or we must give written notice of non-renewal and this written notice must be received no less than thirty (30) days in advance of the end of the Subscription Term. Written notice may take the form of an email sent to accounting@fit3d.com coming from the Point of Contact, Billing Contact, or from someone in another equal position within your Company.
2.5.3. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early, unless an early termination is allowable in the Sales Order(s). We do not provide refunds if you decide to stop using the Service(s) during your Term.
2.5.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all the Service(s): (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
2.5.5 Suspension for Prohibited Acts. We may suspend any End User’s or Administrator's access to any or all Service(s) without notice for: (i) use of the Service(s) in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
2.5.6. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Service(s) ten (10) days after such notice. We will not suspend the Service(s) while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service(s) is suspended for non-payment, we may charge a reactivation fee to reinstate the Service(s).
2.5.7. Suspension for Present Harm. If your website, or use of, the Service(s): (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service(s) or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service(s). We will try to limit the suspension to the affected portion of the Service(s) and promptly resolve the issues causing the suspension of Service(s). Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
2.5.8. Effect of Termination or Expiration. You may request the deletion of your Fit3D account after expiration or termination of your subscription by sending a request to privacy@fit3d.com. You will continue to be subject to this Agreement for as long as you have access to a Fit3D account. Upon termination or expiration of this Agreement, you will stop all use of the terminated Service(s) and we may turn off your Service in the event of termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
2.5.9. Events of Default. An "Event of Default" shall occur if Customer: (i) fails to make any Payment required hereunder when due and such failure continues for a period of thirty (30) days after written notice by Fit3D; (ii) fails to perform or observe any other material covenant, condition or agreement hereunder or breaches any provision contained herein, and such failure or breach continues for a period of thirty (30) days after written notice by Fit3D; (iii) makes any representation or warranty herein or in any document furnished in connection herewith, which shall have been materially false or inaccurate when made; or (iv) is generally unable to pay its debts as they become due, becomes insolvent or bankrupt or makes an assignment for the benefit of creditors or consents to the appointment of a trustee or receiver or insolvency proceedings are instituted by or against Customer.
2.5.10. Remedies In the event of any Event of Default, Fit3D may terminate the Services upon notice to Customer or may reduce the Service to the lowest tier of offered service. No remedy is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to Fit3D. There shall be no waiver by Fit3D of any Event of Default unless in writing and such waiver shall not constitute Fit3D's waiver of any other Event of Default or a waiver of any of Fit3D’s other rights.
2.5.11. Equipment Availability. If your Service includes Equipment, the delivery of your Equipment will be subject to its availability and the completion of your responsibilities to secure your order, such as confirming your shipping address, paying any outstanding amounts due, and any other requirements for Fit3D to ship, or make available, your Equipment.
2.5.12. Delivery Changes. You may change the delivery location or timeline of your Equipment Delivery. In such a case, your delivery will be rescheduled by Fit3D. If you do not pay any remaining balances on your account or do not confirm your shipping address within 30 days of your expected ship date, Fit3D reserves the right to change your Equipment delivery date at a time convenient to Fit3D, after you confirm your shipping address and pay any outstanding balances on your account.
2.5.13. Shipping and Handling Terms. If Fit3D incurs any reasonable additional Shipping & Handling Expenses, Fit3D has the right to charge Customer's payment method on file or bill the Customer for such reasonable additional expenses. Reasonable additional Shipping & Handling Expenses may include expenses are generally associated with expedited shipping or shipping to locations outside of logistics hubs.
2.6. Site Requirements. Customer is required to dedicate a 7' x 5' x 8' room space with consistent indoor lighting, no outdoor or UV lighting shining on the End User or the Equipment, and no reflective surfaces in front of the Equipment. The ground in the dedicated floor space must be on level ground, have access to 110V AC Power, and a strong and consistent wireless internet with an upload speed of no less than 3Mbps.
3. MODIFICATIONS.
3.1. We modify the Service(s) from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Service(s) that materially reduce the functionality provided to you during the Term.
4. CUSTOMER SUPPORT.
4.1. Phone, email, and in-app support is generally available from 9am Monday to Friday 5pm (Pacific Standard Time). Refer to your Sales Order(s) for any additional information regarding Customer Support.
5. GENERAL LEGAL TERMS
5.1. Customer Data
5.1.1. Aggregate Data. We may monitor use of the Service(s) by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. We may, however, use Customer Data as part of internal data processes to develop and improve Enrichment Data. With these internal data processes, in no event will Customer Data be disclosed, included within or provided to other customers or third parties. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner.
5.1.2. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of End User and Customer Data in the United States.
5.2. End User Data
5.2.1. The Service(s) are available for use by End Users following the Activation Date. Fit3D will provide End User data to the appropriate parties as defined in the Sales Order(s) subject to the End User's agreement to the terms of service located at https://www.fit3d.com/terms (the "End User TOS"). Except as prohibited by the End User TOS, upon Customer's reasonable request and Fit3D's sole discretion, Fit3D may disclose to Customer End User Data to the Customer through the Service(s) depending on the Customer's tier of Service. Notwithstanding anything to the contrary in this Agreement, Fit3D shall have no obligation to disclose any End User Data to Customer. Fit3D shall own all End User Data and shall have the right to use the End User Data in any manner it chooses as long as it abides with applicable laws and Fit3D's privacy policy located at https://fit3d.com/privacy.
5.3. Fit3D's Proprietary Rights. This is an Agreement for access to and use of the Service(s). The Service(s) are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. Subject to Customer’s compliance with the terms and conditions of this Agreement, Fit3D hereby grants to Customer a limited, non-sublicensable, nontransferable license to use the Service(s). Customer shall have no right and specifically agrees not to: (i) transfer, assign or sublicense any of the license rights granted herein to any other person, or use the Service(s) except as expressly permitted by this Agreement, and any such attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Service(s) or create derivative works based upon the Service(s), or to permit third parties to do the same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Service(s) to human-readable form. Customer shall not remove any proprietary notices or markings included in the Service(s) or appearing on any Equipment. Except as otherwise expressly granted in this Agreement, all rights to the Service(s) and all intellectual property rights embodied in the Equipment are reserved to Fit3D. You may not use any of our trademarks without prior written permission. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service(s) (unless, of course, you have a source other than the Service(s) for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources. We encourage all customers to comment on the Service(s), provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service(s), without payment or attribution to you.
5.4. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials. This Agreement does not grant us any ownership rights to Customer Materials. You grant permission to us and our licensors to use the Customer Materials only as necessary to provide the Service(s) to you and as permitted by this Agreement. If you are using the Service(s) on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.5. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5.6. Publicity. You grant us the right to use your name, company logo, testimonials, and other distributed information in a non-defamatory way. We grant you the right to use our name, company logo, testimonials, and other distributed information in a non-defamatory way. Either party may request the removal of materials by the other party.
5.7. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service(s) by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Service(s) by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
5.8. Disclaimers; Limitations of Liability
5.8.1. Disclaimer of Warranties. We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the Service(s), data made available from the Service(s). Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the Service(s) are provided "AS IS" without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the Service(s), including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement. Furthermore, Fit3D does not warrant that the services or the operation of the software or the Equipment shall be uninterrupted or error free, that any data acquired by Fit3D shall be accurate or fit for any purpose or that any services will be available for any specific time.For any Equipment deployed to administer the Service(s), Fit3D is not responsible for and will charge the Customer for any repair, replacement, or maintenance caused by the Customer induced damage, neglect, misuse, improper operation, accident, fire, water, vandalism, weather, war, or any Act of God, and unauthorized modification of the Equipment, Software or Services.
5.8.2. No Indirect Damages. To the extent permitted by law, in no event shall either party be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities; provided that, this limitation shall not apply to you if you only use the free services.
5.8.3. Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the ‘Indemnification’ section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party is determined to have any liability to the other party or any third party, the parties agree that the aggregate liability of a party will be limited to the lesser of five thousand U.S. dollars or the total amounts you have actually paid for the Service in the twelve month period preceding the event giving rise to a claim.
5.8.4. Third Party Products. We disclaim all liability with respect to third-party products that you use. Our licensors shall have no liability of any kind under this agreement.
5.8.5. Agreement to Liability Limit. You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you.
5.9. Miscellaneous
5.9.1. Amendment; No Waiver. We may update and change any part or all of these Customer and End User Terms of Service, including the fees and charges associated with the use of the Service(s) (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted online at our then current Terms of Service link. We will attempt to let you know via email or in-app notification. The updated End-User and Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the End-User and Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
5.9.2. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
5.9.3. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
5.9.4. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
5.9.5. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Service(s) and our processing of End User and Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service(s), including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Service(s) to prohibited countries or individuals or permit use of the Service(s) by prohibited countries or individuals.
5.9.6. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
5.9.7. Notices.
Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To us:
Fit3D, Inc.
Attn: General Counsel
400 Capitol Mall Suite 900, Sacramento, CA 95814
To you:
Your address as provided to Fit3D. We may give electronic notices by general notice via the Service(s) and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Service(s). We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
5.9.8. Entire Agreement. This Agreement (including each Sales Order), along with our Privacy Policy, is the entire agreement between us for the Service(s) and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service(s) or dependent on any oral or written public comments made by us regarding future functionality or features of the Service(s). We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
5.9.9. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
5.9.10. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.9.11. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
5.9.12. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
5.9.13. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Effect of Termination or Expiration’, ‘Fit3D's Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, and ‘Miscellaneous’.
5.9.14. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and a Sales Order, the terms of the Sales Order shall control, but only as to that Sales Order.5.9.15. Jurisdiction specific terms. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflicts of law principles.
5.10 Site Preparation; Delivery; Installation. Customer at its expense, shall prepare a site for installation of any Equipment deployed to administer the Service that conforms to the requirements listed on the Sales Order(s) (the "Site Requirements"). Delivery of any Equipment shall be made FCA Customer's Address (Incoterms 2010) as Equipment becomes available. Customer shall be responsible for installing the Equipment at Customer's site in accordance with the instructions and specifications that Fit3D provides with the Equipment. Customer shall make no alterations to the Equipment without Fit3D's prior written consent. Fit3D shall not be liable for any damages after the Equipment has been delivered and before the Equipment is activated.
5.11 Warranties Period. Except as may be otherwise specified or agreed, Fit3D shall repair all defects in materials, equipment, or workmanship appearing within two years from the date the Equipment is staged for shipping.
5.12. Warranty. If Customer determines that there is a Defect during the Warranty Period, Customer must notify Fit3D promptly (but no later than five (5) days after expiration of the Warranty Period) in writing and provide a reasonably detailed explanation of the Defect. If Fit3D confirms the existence of the Defect, and provided Customer is not then in material default hereunder or under any other agreement with Fit3D, Fit3D shall issue a return materials authorization and at no charge to Customer, repair or replace (in Fit3D's sole discretion) the defective Software, Equipment or component of Equipment, as applicable. Fit3D may, at its sole discretion, issue the Customer an advanced return materials authorization, provided that the Customer has an approved and valid payment method on file. Fit3D shall deliver replacement Software, Equipment, or any component of Equipment, to Customer at an address in the contiguous United States at Fit3D's expense and Customer shall install the replacement Software, Equipment or component of Equipment. Customer may request that Fit3D deliver replacement Software, Equipment, or any component of Equipment at an address outside the contiguous United States, or in an expedited manner, provided Customer pays the cost for such delivery. Customer may request that Fit3D install Software, Equipment or any component of Equipment that is delivered by Fit3D to Customer under this Section provided Customer pays the cost for such installation in accordance with Fit3D's then current standard terms and conditions for such services.
Effective upon your access and use of the FIT3D Service(s) (as defined below), the execution of this Agreement, or the execution of a Sales Order that includes this agreement, you or the organization you represent ("Customer") agree with FIT3D, Inc., having an address of 400 Capitol Mall Suite 900Sacramento, CA 95814 ("Fit3D") that you have read, understood and accepted all the terms and conditions set forth below and that customer agrees to be legally bound by them as of the first date of customer's access and use of the Fit3D Service(s) (the "Effective Date").
This Agreement, together with the applicable Terms of Service, and Order Form(s), sets forth the terms under which Fit3D will make its Services available to the customer. This agreement includes the terms set forth in any applicable statements of work or Order Forms that reference this agreement, as well as the Fit3D Terms of Service.
IN CONSIDERATION OF the mutual covenants and promises in this agreement, the receipt, and sufficiency of which consideration is hereby acknowledged, FIT3D provides its service (s) to the customer on the following terms:
1. DEFINITIONS:
The following terms shall have the meanings, respectively, ascribed to them below, and, unless the context clearly indicates otherwise, shall include the plural as well as the singular names.
“End User” means an individual that has accepted the applicable privacy policies and terms of use for the specific Integrated Service(s).
"Administrator" means an individual that has accepted the applicable privacy policies and terms of use for the specific Integrated Service(s) and may have access to additional Advanced Reporting Service(s).
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Integrated Service(s)" is defined as the Equipment and Software provided to the Customer to capture a 3D body scan, authenticate End User accounts, process End User measurements, and provide reports to End Users.
"Advanced Reporting Service(s)" is defined as any services offered to End Users or Administrators above and beyond Integrated Service(s). The description and availability of Advanced Reporting Service(s) may change from time to time, but they will be listed in your billing portal or product material as distributed by Fit3D.
"Service(s)" is any mix of Integrated Service(s) and Advanced Reporting Service(s).
“Equipment” means any equipment distributed from Fit3D to the Customer to enable the Service(s).
“Sales Order(s)” is a general term we use to define the commercial agreement between the Customer and Fit3D. This may take the form of the description and prices of the Products and Services below, of terms of service in a Fit3D billing portal, or of terms of service as activated from within your Fit3D account.
“Service Fees” means the fees charged to the Customer by Fit3D for any Service(s). Service Fees may be set forth in the Sales Order(s).
“End User Data” means all information that is collected or processed via the Service(s) about the End User.
"End User Sessions" means any Session where the End User has used the Service.
"Customer Data" means all information that is collected or processed via the Service(s). Customer Data does not include End User Data or Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit through Service(s).
“Enrichment Data” means the data we make available to you as part of the Service(s). Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third-party sources and our internal data processes provided from End User Data or Customer Data.“Activation Date” means the date on which the Service(s) are made available to the Customer.
"Subscription Term" means the term of your subscription to the applicable The Service, as specified on your Sales Order(s), and each subsequent renewal term (if any).
“Equipment Ship Date” means the date on which the Equipment has left Fit3D or Fit3D agent or distributor warehouses.
“Fit3D”, "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Service(s) or receiving and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
2. GENERAL COMMERCIAL TERMS
2. 1. Access. During the Subscription Term, we will provide you access to use the Service(s) as described in this Agreement, applicable Sales Order(s). We might provide some or all elements of the Service(s) through third party service providers.
2.2. Additional Features. You may subscribe to additional features of the Service(s) by placing additional Sales Order(s) (if this option is made available by us.). This Agreement will apply to all additional Sales Order(s).
2.3. Availability. We try to make the Service(s) available 24 hours a day, 7 days a week, except for planned down-time for maintenance.2.4. Fees and Payments2.4.1. Fees and Billing. The Service(s) Fees and Billing will be defined in attached or subsequent Sales Order(s) associated with this agreement.
2.4.2 Payments. Customer shall pay Fit3D the payments as described in the Sales Order ("Payments"). The first payment is due on the date specified in the Sales Order and remaining Payments are due on the same date of each succeeding month. Interest shall accrue at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, from the original due date on all Payments not made by the tenth (10th).
2.4.3. Fee Adjustments During a Term. During the Term, fees may only be adjusted with the express written consent of the Customer and approval by Fit3D.
2.4.4. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Term as defined in the Sales Order(s). You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
2.4.5. Payment against invoice. If you are paying by invoice, we will invoice as per the payment terms in your Sales Order(s). All amounts invoiced are due and payable as specified in the Sales Order(s).
2.4.6 Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Fit3D account or by emailing accounting@fit3d.com. All payments are non-cancelable and all amounts paid are non-refundable, even if you have not yet accepted delivery of the Equipment, except as specifically provided for in this Agreement. All fees are due and payable throughout the Term.
2.4.7 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable specific to your region, state, or country. You agree to pay any taxes applicable to your use of the Service(s).
2.4.8 Deposits. If the Expected Ship date is more than 45 days out, you may be required to pay a deposit to hold your ship date. The deposit will be the greater of $2,500 or 10% of the total amount on your order.
2.5. Service(s) Term, Termination, Suspension, Default2.5.1. Term and Renewal. Your Terms will be specified in your Sales Order(s).
2.5.2. Notice of Non-Renewal. If your Service(s) include a subscription, it will automatically renew according to the ‘Term and Renewal’ as defined in the Service(s) Sales Order(s). Unless otherwise specified in your Sales Order(s), to prevent renewal of your subscription, you or we must give written notice of non-renewal and this written notice must be received no less than thirty (30) days in advance of the end of the Subscription Term. Written notice may take the form of an email sent to accounting@fit3d.com coming from the Point of Contact, Billing Contact, or from someone in another equal position within your Company.
2.5.3. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early, unless an early termination is allowable in the Sales Order(s). We do not provide refunds if you decide to stop using the Service(s) during your Term.
2.5.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all the Service(s): (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
2.5.5 Suspension for Prohibited Acts. We may suspend any End User’s or Administrator's access to any or all Service(s) without notice for: (i) use of the Service(s) in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
2.5.6. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Service(s) ten (10) days after such notice. We will not suspend the Service(s) while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service(s) is suspended for non-payment, we may charge a reactivation fee to reinstate the Service(s).
2.5.7. Suspension for Present Harm. If your website, or use of, the Service(s): (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service(s) or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service(s). We will try to limit the suspension to the affected portion of the Service(s) and promptly resolve the issues causing the suspension of Service(s). Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
2.5.8. Effect of Termination or Expiration. You may request the deletion of your Fit3D account after expiration or termination of your subscription by sending a request to privacy@fit3d.com. You will continue to be subject to this Agreement for as long as you have access to a Fit3D account. Upon termination or expiration of this Agreement, you will stop all use of the terminated Service(s) and we may turn off your Service in the event of termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
2.5.9. Events of Default. An "Event of Default" shall occur if Customer: (i) fails to make any Payment required hereunder when due and such failure continues for a period of thirty (30) days after written notice by Fit3D; (ii) fails to perform or observe any other material covenant, condition or agreement hereunder or breaches any provision contained herein, and such failure or breach continues for a period of thirty (30) days after written notice by Fit3D; (iii) makes any representation or warranty herein or in any document furnished in connection herewith, which shall have been materially false or inaccurate when made; or (iv) is generally unable to pay its debts as they become due, becomes insolvent or bankrupt or makes an assignment for the benefit of creditors or consents to the appointment of a trustee or receiver or insolvency proceedings are instituted by or against Customer.
2.5.10. Remedies In the event of any Event of Default, Fit3D may terminate the Services upon notice to Customer or may reduce the Service to the lowest tier of offered service. No remedy is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to Fit3D. There shall be no waiver by Fit3D of any Event of Default unless in writing and such waiver shall not constitute Fit3D's waiver of any other Event of Default or a waiver of any of Fit3D’s other rights.
2.5.11. Equipment Availability. If your Service includes Equipment, the delivery of your Equipment will be subject to its availability and the completion of your responsibilities to secure your order, such as confirming your shipping address, paying any outstanding amounts due, and any other requirements for Fit3D to ship, or make available, your Equipment.
2.5.12. Delivery Changes. You may change the delivery location or timeline of your Equipment Delivery. In such a case, your delivery will be rescheduled by Fit3D. If you do not pay any remaining balances on your account or do not confirm your shipping address within 30 days of your expected ship date, Fit3D reserves the right to change your Equipment delivery date at a time convenient to Fit3D, after you confirm your shipping address and pay any outstanding balances on your account.
2.5.13. Shipping and Handling Terms. If Fit3D incurs any reasonable additional Shipping & Handling Expenses, Fit3D has the right to charge Customer's payment method on file or bill the Customer for such reasonable additional expenses. Reasonable additional Shipping & Handling Expenses may include expenses are generally associated with expedited shipping or shipping to locations outside of logistics hubs.
2.6. Site Requirements. Customer is required to dedicate a 7' x 5' x 8' room space with consistent indoor lighting, no outdoor or UV lighting shining on the End User or the Equipment, and no reflective surfaces in front of the Equipment. The ground in the dedicated floor space must be on level ground, have access to 110V AC Power, and a strong and consistent wireless internet with an upload speed of no less than 3Mbps.
3. MODIFICATIONS.
3.1. We modify the Service(s) from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Service(s) that materially reduce the functionality provided to you during the Term.
4. CUSTOMER SUPPORT.
4.1. Phone, email, and in-app support is generally available from 9am Monday to Friday 5pm (Pacific Standard Time). Refer to your Sales Order(s) for any additional information regarding Customer Support.
5. GENERAL LEGAL TERMS
5.1. Customer Data
5.1.1. Aggregate Data. We may monitor use of the Service(s) by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. We may, however, use Customer Data as part of internal data processes to develop and improve Enrichment Data. With these internal data processes, in no event will Customer Data be disclosed, included within or provided to other customers or third parties. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner.
5.1.2. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of End User and Customer Data in the United States.
5.2. End User Data
5.2.1. The Service(s) are available for use by End Users following the Activation Date. Fit3D will provide End User data to the appropriate parties as defined in the Sales Order(s) subject to the End User's agreement to the terms of service located at https://www.fit3d.com/terms (the "End User TOS"). Except as prohibited by the End User TOS, upon Customer's reasonable request and Fit3D's sole discretion, Fit3D may disclose to Customer End User Data to the Customer through the Service(s) depending on the Customer's tier of Service. Notwithstanding anything to the contrary in this Agreement, Fit3D shall have no obligation to disclose any End User Data to Customer. Fit3D shall own all End User Data and shall have the right to use the End User Data in any manner it chooses as long as it abides with applicable laws and Fit3D's privacy policy located at https://fit3d.com/privacy.
5.3. Fit3D's Proprietary Rights. This is an Agreement for access to and use of the Service(s). The Service(s) are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. Subject to Customer’s compliance with the terms and conditions of this Agreement, Fit3D hereby grants to Customer a limited, non-sublicensable, nontransferable license to use the Service(s). Customer shall have no right and specifically agrees not to: (i) transfer, assign or sublicense any of the license rights granted herein to any other person, or use the Service(s) except as expressly permitted by this Agreement, and any such attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Service(s) or create derivative works based upon the Service(s), or to permit third parties to do the same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Service(s) to human-readable form. Customer shall not remove any proprietary notices or markings included in the Service(s) or appearing on any Equipment. Except as otherwise expressly granted in this Agreement, all rights to the Service(s) and all intellectual property rights embodied in the Equipment are reserved to Fit3D. You may not use any of our trademarks without prior written permission. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service(s) (unless, of course, you have a source other than the Service(s) for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources. We encourage all customers to comment on the Service(s), provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service(s), without payment or attribution to you.
5.4. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials. This Agreement does not grant us any ownership rights to Customer Materials. You grant permission to us and our licensors to use the Customer Materials only as necessary to provide the Service(s) to you and as permitted by this Agreement. If you are using the Service(s) on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.5. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5.6. Publicity. You grant us the right to use your name, company logo, testimonials, and other distributed information in a non-defamatory way. We grant you the right to use our name, company logo, testimonials, and other distributed information in a non-defamatory way. Either party may request the removal of materials by the other party.
5.7. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service(s) by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Service(s) by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
5.8. Disclaimers; Limitations of Liability
5.8.1. Disclaimer of Warranties. We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the Service(s), data made available from the Service(s). Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the Service(s) are provided "AS IS" without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the Service(s), including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement. Furthermore, Fit3D does not warrant that the services or the operation of the software or the Equipment shall be uninterrupted or error free, that any data acquired by Fit3D shall be accurate or fit for any purpose or that any services will be available for any specific time.For any Equipment deployed to administer the Service(s), Fit3D is not responsible for and will charge the Customer for any repair, replacement, or maintenance caused by the Customer induced damage, neglect, misuse, improper operation, accident, fire, water, vandalism, weather, war, or any Act of God, and unauthorized modification of the Equipment, Software or Services.
5.8.2. No Indirect Damages. To the extent permitted by law, in no event shall either party be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities; provided that, this limitation shall not apply to you if you only use the free services.
5.8.3. Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the ‘Indemnification’ section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party is determined to have any liability to the other party or any third party, the parties agree that the aggregate liability of a party will be limited to the lesser of five thousand U.S. dollars or the total amounts you have actually paid for the Service in the twelve month period preceding the event giving rise to a claim.
5.8.4. Third Party Products. We disclaim all liability with respect to third-party products that you use. Our licensors shall have no liability of any kind under this agreement.
5.8.5. Agreement to Liability Limit. You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you.
5.9. Miscellaneous
5.9.1. Amendment; No Waiver. We may update and change any part or all of these Customer and End User Terms of Service, including the fees and charges associated with the use of the Service(s) (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted online at our then current Terms of Service link. We will attempt to let you know via email or in-app notification. The updated End-User and Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the End-User and Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
5.9.2. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
5.9.3. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
5.9.4. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
5.9.5. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Service(s) and our processing of End User and Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service(s), including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Service(s) to prohibited countries or individuals or permit use of the Service(s) by prohibited countries or individuals.
5.9.6. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
5.9.7. Notices.
Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To us:
Fit3D, Inc.
Attn: General Counsel
400 Capitol Mall Suite 900, Sacramento, CA 95814
To you:
Your address as provided to Fit3D. We may give electronic notices by general notice via the Service(s) and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Service(s). We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
5.9.8. Entire Agreement. This Agreement (including each Sales Order), along with our Privacy Policy, is the entire agreement between us for the Service(s) and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service(s) or dependent on any oral or written public comments made by us regarding future functionality or features of the Service(s). We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
5.9.9. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
5.9.10. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.9.11. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
5.9.12. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
5.9.13. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Effect of Termination or Expiration’, ‘Fit3D's Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, and ‘Miscellaneous’.
5.9.14. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and a Sales Order, the terms of the Sales Order shall control, but only as to that Sales Order.5.9.15. Jurisdiction specific terms. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflicts of law principles.
5.10 Site Preparation; Delivery; Installation. Customer at its expense, shall prepare a site for installation of any Equipment deployed to administer the Service that conforms to the requirements listed on the Sales Order(s) (the "Site Requirements"). Delivery of any Equipment shall be made FCA Customer's Address (Incoterms 2010) as Equipment becomes available. Customer shall be responsible for installing the Equipment at Customer's site in accordance with the instructions and specifications that Fit3D provides with the Equipment. Customer shall make no alterations to the Equipment without Fit3D's prior written consent. Fit3D shall not be liable for any damages after the Equipment has been delivered and before the Equipment is activated.
5.11 Warranties Period. Except as may be otherwise specified or agreed, Fit3D shall repair all defects in materials, equipment, or workmanship appearing within two years from the date the Equipment is staged for shipping.
5.12. Warranty. If Customer determines that there is a Defect during the Warranty Period, Customer must notify Fit3D promptly (but no later than five (5) days after expiration of the Warranty Period) in writing and provide a reasonably detailed explanation of the Defect. If Fit3D confirms the existence of the Defect, and provided Customer is not then in material default hereunder or under any other agreement with Fit3D, Fit3D shall issue a return materials authorization and at no charge to Customer, repair or replace (in Fit3D's sole discretion) the defective Software, Equipment or component of Equipment, as applicable. Fit3D may, at its sole discretion, issue the Customer an advanced return materials authorization, provided that the Customer has an approved and valid payment method on file. Fit3D shall deliver replacement Software, Equipment, or any component of Equipment, to Customer at an address in the contiguous United States at Fit3D's expense and Customer shall install the replacement Software, Equipment or component of Equipment. Customer may request that Fit3D deliver replacement Software, Equipment, or any component of Equipment at an address outside the contiguous United States, or in an expedited manner, provided Customer pays the cost for such delivery. Customer may request that Fit3D install Software, Equipment or any component of Equipment that is delivered by Fit3D to Customer under this Section provided Customer pays the cost for such installation in accordance with Fit3D's then current standard terms and conditions for such services.