Enterprise Services Agreement

Please read this Enterprise Services Agreement (this “Agreement”) carefully before accessing and using the Platform. This Agreement is entered into between Polycam Inc. (“Polycam”) and the customer identified on the Order Form (“Customer”). This Agreements governs Customer’s access and use of the Platform.

By purchasing a subscription to access and use the Platform via an Order Form or otherwise accessing the Platform, Customer agrees that it has read, understood and is bound by this Agreement, effective as of the Effective Date indicated on the Order Form (the “Effective Date”). If Customer does not agree to all the terms and conditions of this Agreement, Customer is not authorized to use the Platform and must immediately cease any use or access of the Platform.

1. Definitions

1. “Authorized Users” means the employees, agents or contractors of Customer, who are authorized by Customer to access and use the Platform solely on behalf and for the benefit of Customer for Customer’s internal business purposes.
2. “Customer Data” means any data, media or other content provided by Customer or its Authorized Users as an input to the Platform.
3. “Intellectual Property Rights” means (a) patents, inventions, designs, copyright and related rights, database rights, know-how and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognized in the future; and (c) all applications, extensions and renewals in relation to any such rights.
4. “Order Form” means the order form that Polycam and the Customer have agreed to, whether via Polycam’s online portal, a mutually executed order form, or otherwise, pursuant to which Customer purchases a subscription to access and use the platform in accordance with the terms and conditions of this Agreement. Each Order Form will form part of this Agreement and will be subject to the terms and conditions contained herein.
5. “Output” means any output generated by the Platform based on the Customer Data in connection with Customer’s or any of its Authorized User’s use of the Platform.
6. “Platform” means Polycam’s proprietary software-as-a-service (SaaS) solution designed to convert data, media or other content into 3D models.

2. Platform Access

3. Customer Data; Outputs; Privacy

1. Publicity. The parties agree to consult with each other and mutually agree on the issuance of any press releases or public statements with respect to this Agreement and the parties’ relationship. No party may issue any such press release or public statement without the prior consent of the other party, not to be unreasonably withheld or delayed, except that no prior consent will be required if such disclosure is required by law. Notwithstanding the foregoing, Polycam may list Customer as a customer of Polycam on its website and other marketing materials, and, upon Customer’s approval, in case studies related to Customer’s use of the Platform. Customer grants Polycam a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, and display Customer’s logos, trademarks, service marks, and word marks (“Customer Marks”) in connection with the foregoing. Polycam agrees to comply with any reasonable direction given by Customer related to Polycam’s display of any Customer Mark. Customer may request that Polycam remove or replace a Customer Mark, and Polycam shall comply with such request as soon as reasonably practicable. All goodwill arising from Polycam’s use of the Customer Marks hereunder will inure to the benefit of Customer.
2. Ambiguities. Each party has participated in the review of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
3. Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Polycam and any attempt to do so will be null and void. Notwithstanding the foregoing, either party may assign this Agreement in its entirety to an affiliate or to a successor in interest by way of a merger, reorganization, or a sale of all or substantially all the assets of the party. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
4. Collaboration. Each party acknowledges that the trademarks, logos and service marks (“Marks”) of the other party are the property of Polycam or Customer, as applicable. Subject to Customer’s ability to revoke consent for use at any time, Polycam may reference Customer, or Customer’s Marks (subject to Customer’s applicable brand guidelines), and Customer’s use of the Platform in customer and prospect communications and on Polycam’s website. Polycam agrees to stop distributing, publicly referencing, and displaying the materials at any time upon written request from Customer. Customer may not use Polycam’s Marks in any external communications or materials without Polycam’s prior written approval.
5. Compliance with Laws. The parties will comply with all laws, statutes, and regulations applicable to them respectively under this Agreement. Each party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other parties’ Representatives in connection with this Agreement. If a party becomes aware of any violation of this Section, it will notify the other through the designated channel.
6. Contact Information Polycam, its affiliates, and applicable contractors, may process business contact information (including, but not limited to, name, address, business telephone, email, and applicable user ID) of Customer, its personnel and other Authorized Users to communicate and manage applicable business dealings. Where consent by the individuals (or other notice) is required for such processing, Customer will notify and/or obtain such consent.
7. Contractual Relationship. The parties are entering into this Agreement as independent contracting parties. Neither party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party. This Agreement will not be construed to create an association, joint venture, principal to agent relationship or partnership between the parties or to impose any partnership liability upon any party.
8. Force Majeure. Except for the inability to meet financial obligations, neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, computer-related attacks, hacking, internet service provider failures or delays, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government (each a “Force Majeure Event”). For the avoidance of doubt, Customer understands that the Platform may not be provided in countries listed in the Office of Foreign Assets Control sanction list and Customer’s access to the Platform may be restricted in such countries. Such prohibitions do not constitute a Force Majeure Event.
9. Government Users. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (“FAR”), Customer acknowledges that elements provided herein constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101 and are being licensed to U.S. government user as commercial computer software, subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
10. Integration; Order of Precedence. This Agreement (including the Order Form) constitutes the entire agreement between the parties and supersedes all prior agreements, or communications between the parties regarding the subject matter hereof. In the event of any conflict between the provisions of the documents subject to the Agreement, such conflict will be resolved by giving precedence to such different parts of the Agreement in the following order of precedence: first, the Order Form; second, this Enterprise Services Agreement; third, any other documents incorporated by reference into this Agreement unless the document of lower precedence expressly states that its terms are intended to override the conflicting provisions of the document of higher order precedence.
11. Amendment and Waiver. No supplement, modification, amendment or waiver of this Agreement will be binding unless executed in writing by the party against whom enforcement of such supplement, modification, amendment or waiver is sought. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Notwithstanding the foregoing, Polycam may modify this Agreement from time to time in which case Polycam will update the “Last Updated” date at the top of this Agreement, and such updated Agreement will be effective for the following Renewal term. It is Customer’s responsibility to review this Agreement from time to time, including prior to each Renewal Term, to view any such changes. If Polycam makes changes to the Agreement that are material, Polycam will use reasonable efforts to notify Customer. Customer’s continued access or use of the Platform after the modified Agreement has become effective will be deemed Customer’s acceptance of the modified Agreement.
12. Notices. Polycam may provide any notice to Customer by sending an email to Customer’s email contact or by certified or registered mail (return receipt requested), in each case, to the address provided by Customer in an Order Form or Customer otherwise notifies Polycam of. Customer may provide notice to Polycam by sending an email to legal@polycam.ai or by certified or registered mail (return receipt requested) to the address indicated by Polycam in an Order Form. Notices will be: (a) in writing, (b) in English and (c) treated as received when the email is sent, whether the other party has received the email or not, or in the case of certified or registered mail, two business days after being deposited in the mail. Customer is responsible for keeping its designated contact information current throughout the Term.
13. Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. The courts located in the City and County of San Francisco, California shall have exclusive jurisdiction for all purposes regarding this Agreement.
14. Signatures. The Agreement may be signed electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
15. Third-party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.

4. Customer Obligations

1. Access. Subject to Customer’s payment of the Fees and the other terms and conditions of this Agreement, Polycam hereby permits Customer to access and use, and to permit the number of Authorized Users identified in the Order Form, to access and use, the Platform during the Term (as defined below) solely for Customer’s internal business purposes only, and only in accordance with any documentation Polycam provides regarding the Platform.
2. Updates. From time to time, Polycam may provide upgrades, patches, enhancements, or fixes for the Platform to its customers generally without additional charge (“Updates”), and such Updates shall be deemed part of the Platform and subject to this Agreement; provided that Polycam shall have no obligation under this Agreement or otherwise to provide any such Updates.
3. Ownership. As between the parties, Polycam owns: (i) the Platform (including Updates), the Polycam name, the Polycam logo, the domain name where the Platform is hosted and all subdomains and content thereon, the product and service names associated with the Platform, and other trademarks and service marks; (ii) audio and visual information, documents, software and other works of authorship provided by Polycam to Customer under this Agreement, other than, for clarity, the Outputs; and (iii) other technology, including graphical user interfaces, artificial intelligence and machine learning models, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used by Polycam to provide the Platform under this Agreement, including in each case all modifications, enhancements, improvements and derivative works thereof and thereto (collectively, “Polycam Technology”). Any software which is distributed or otherwise provided to Customer hereunder by Polycam (including without limitation any software identified on an Order Form) shall be deemed a part of the Polycam Technology. Other than as expressly set forth herein, no license or other rights in or to the Polycam Technology or related Intellectual Property Rights are granted to Customer or Authorized Users, and all such licenses and rights are hereby expressly reserved to Polycam.
4. Feedback. Customer hereby grants Polycam a royalty-free, worldwide, irrevocable, perpetual, sublicenseable, transferable license to use or incorporate into the Platform and other Polycam products and services any suggestions, ideas, enhancement requests, feedback, recommendations or other information (“Feedback”) provided by Customer or its Authorized Users related to the operation of the Platform, without any compensation or attribution to Customer. For the avoidance of doubt, Polycam shall not be obliged to implement any such Feedback.
5. Usage Limits. Customer agrees that its and its Authorized Users access to and use of the Platform is subject to the usage limits described in the Order Form (“Usage Limits”), if any. Polycam reserves the right to charge additional fees if Customer and its Authorized Users use of the Platform exceeds the Usage Limits; provided that Polycam will notify Customer in advance of such additional fees that apply to any use of the Platform in excess of the Usage Limits. Polycam has the right to monitor Customer’s use of the Platform to ensure compliance with the terms of this Agreement and disallow usage in excess of the Usage Limits.
6. Support Services. Polycam may provide technical assistance and training in its sole discretion and without any liability or risk to Polycam. Polycam will use commercially reasonable efforts to ensure the Platform is available on a 24/7 basis, but Polycam makes no representation or warranty that the operation or availability of the Platform will be uninterrupted or error-free. Notwithstanding the foregoing, Customer acknowledges that Polycam may from time to time carry out routine and emergency maintenance of the Platform with or without notice to Customer. Customer may be unable to access the Platform during any period in which routine or emergency maintenance is being carried out, provided that Polycam will use its commercially reasonable efforts to keep disruption to and unavailability of the Platform to a minimum.

5. Polycam Warranties; Disclaimer

1. Limit on Direct Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY’S (OR THEIR AFFILIATES’) TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM EXCEED THE TOTAL FEES PAID BY CUSTOMER TO POLYCAM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST EVENT WHICH GIVES RISE TO LIABILITY UNDER THIS AGREEMENT.
2. No Indirect and/or Consequential Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, LOSS OF USE OF DATA, OR ANY CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
3. Exceptions to the Limitation of Liability. THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF DAMAGES WILL NOT APPLY TO (A) ANY OBLIGATION OF CUSTOMER TO PAY THE FEES SET FORTH HEREIN, (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (C) ANY LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE PARTIES AGREE THAT LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE INTENDED TO SURVIVE IF A PARTY’S REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND THAT THE FEES FOR SOFTWARE AND SERVICES WOULD HAVE BEEN GREATER BY NECESSITY WITHOUT THEM.

6. Fees

1. Polycam. Polycam will defend, indemnify, and hold Customer, its affiliates and their respective officers, directors, members, employees, consultants, agents and suppliers (each a “Customer Indemnitee”) harmless for any loss, damage, expense, liability, or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees), resulting from a claim brought against a Customer Indemnitee by a third party to the extent such claim alleges that such Customer Indemnitee’s use of the Platform (as authorized in this Agreement) directly violates, infringes or misappropriates any of such third party’s Intellectual Property Rights (a “Claim). Polycam will pay all damages (including reasonable attorney fees) finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in a monetary settlement) in any such Claim. Polycam will have no liability to Customer for any Claim that arises out of or relates to: (1) any unauthorized use, reproduction, or distribution of the Platform or any Output, (2) Customer’s or its Authorized Users’ breach of this Agreement, (3) use of the Platform in combination with any other software, content, data, business process, or equipment not supplied by Polycam, (4) any modification or alteration of the Platform by anyone other than Polycam, or (5) Polycam’s compliance with any materials, designs, specifications or instructions provided by Customer (subsections (1) – (5) collectively, “Customer Acts”).
2. Procedure. Customer shall give Polycam prompt notice of any actual or threatened Claim. Customer shall not admit any liability or agree to any settlement or compromise of an Claim without the prior written consent of Polycam. Polycam shall be entitled to assume exclusive conduct of the Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the Claim and to conduct all discussions and dispute resolution efforts in connection with the Claim). Customer shall, at Polycam’s request, cost and expense, give Polycam all reasonable assistance in connection with the conduct of the Claim.
3. Remedy. If any such Claim is brought or threatened, or if Polycam reasonably believes that the Platform may become the subject of an infringement claim, Polycam may, at its sole option: (i) procure for Customer the right to continue to use the Platform; (ii) modify the Platform to make it non-infringing; (iii) replace the affected aspect of the Platform with non-infringing technology having substantially similar capabilities; or (iv) terminate this Agreement and refund Customer any prepaid Fees related to the Platform prorated for the remainder of the Term.
4. Customer. Customer will indemnify and hold Polycam, its affiliates and their respective officers, directors, members, employees, consultants, agents and suppliers harmless for any loss, damage, expense, liability, or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees), resulting from a claim brought against Polycam by a third party to the extent such claim arises out of or relates to (i) any Customer Acts, (ii) any use of the Outputs by or on behalf of Customer or (iii) Polycam’s use of the Customer Data as contemplated by this Agreement, including the Platform’s generation of any Output based on such Customer Data.

7. Term; Termination; Suspension

1. Ownership. As between the parties, Customer shall own all rights, title and interest in and to all of Customer Data and shall at all times have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and for ensuring that its use does not infringe the rights of any third parties. As between the parties, Polycam does not claim any ownership in the Outputs or any Intellectual Property Rights therein; provided that Polycam or its licensors own and will continue to own the Platform and any other Polycam Technology used to generate any Output. For clarity, Polycam makes no representation or warranty about Customer’s ability to enforce any Intellectual Property Rights in any Output against any other third party.
2. License. Customer hereby grants to Polycam, on and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable license to use Customer Data and the Outputs for the purpose of providing the Platform under this Agreement (together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent necessarily required for the performance of Polycam’s obligations), for any requirements ancillary to the provision of the Platform, and to train or otherwise improve the Platform, including its underlying artificial intelligence and machine learning models. Customer warrants to Polycam that the use of Customer Data in accordance with this Agreement, including to generate Outputs, will not: (a) breach any laws, statutes or regulations; (b) infringe the Intellectual Property Rights or other legal rights of any person; or (c) give rise to any cause of action against Polycam, in each case in any jurisdiction and under any applicable law or regulation.
3. Data Privacy. Polycam’s Privacy Policy found at https://poly.cam/legal/privacy-policy, which may be updated from time to time, explains how the Platform collects, processes, stores, uses and discloses any date or information included in the Customer Data. Customer acknowledges and agrees that Polycam may use such information in accordance with its Privacy Policy. Customer shall, in relation to any data or information shared with Polycam or uploaded to the Platform for Polycam to use as envisaged under this Agreement, provide all notices, obtain all consents and take all other steps that may be required by applicable laws to allow Polycam to receive, process and use such data in accordance with the terms of the Agreement.
4. Data Protection. Polycam will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of data uploaded to the Platform.

8. Effect of Termination; Survival. Upon termination or expiration of this Agreement for any reason:

1. Definition. “Confidential Information means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after this Agreement by or on behalf of one party (“Discloser”) to the other party (“Recipient”) in writing, orally, through visual means, or by the Recipient’s evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is now or at any time after the date of this Agreement, owned or controlled by the Discloser. Confidential Information shall include trade secrets, discoveries, knowhow, designs, specifications, drawings, present or future products or services (including the provision of the Platform), inventions, prototypes, algorithms, software of any kind or nature, and other technical and business information and any other information which, by its nature, would reasonably be considered to be of a confidential nature either intrinsically or due to the context and circumstances in which it was disclosed, including, for the avoidance of doubt, information concerning the parties’ customers, which is of a confidential nature, and the terms of this Agreement. Confidential Information does not include information that (a) is or becomes publicly available through no fault of Recipient, (b) was known to Recipient, free of any confidentiality obligations, before receipt, (c) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, or (d) is independently developed by Recipient without the use of Discloser’s Confidential Information.
2. Obligations. Recipient will not reproduce, use, disseminate, or disclose Confidential Information to any person or entity, except to its employees, affiliates, consultants, or advisors (collectively, “Representatives”), who have a reasonable need to know the Confidential Information in connection with performance of this Agreement and are bound by obligations at least as restrictive as this Agreement before having access to Confidential Information. Recipient is responsible for the acts and omissions of its Representatives under this Agreement. Recipient will not modify, reverse engineer, create other works from, or disassemble any software programs contained in the Confidential Information without Discloser’s written approval. Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never less than reasonable care. Recipient will stop the use of and return or destroy all tangible Confidential Information promptly upon request, together with any copies, except as otherwise required by law or pursuant to a bona fide archival or document retention policy. Recipient may disclose Confidential Information: (a) upon Discloser’s written approval; and (b) as necessary to respond to a valid order by a court or governmental body, as required by law, or as necessary to establish the rights of either party, provided that Recipient promptly notifies Discloser upon receipt of a disclosure order and requests confidential treatment of any affected Confidential Information. Recipient’s shall comply with its obligations with respect to Confidential Information under this Agreement survive for five years after termination of the Agreement (except for source code, which must be kept in confidence in perpetuity). Upon written request of the Discloser or at the termination of this Agreement, Recipient will promptly return to Discloser or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) Confidential Information of Discloser, except as otherwise required by law or pursuant to a bona fide archival or document retention policy.
3. Injunctive Relief. The parties agree that the Recipient’s disclosure of Confidential Information, except as provided herein, may result in irreparable injury for which monetary damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the Discloser may be entitled to seek an injunction to prevent the breach or threatened breach, in addition to remedies otherwise available to the Discloser at law or in equity.
4. Usage Data. Polycam may collect usage data regarding the manner in which Customer interacts with the Platform (“Usage Data”). Polycam owns any Usage Data, which for clarity shall not be considered Customer’s Confidential Information. Nothing in this Agreement will be construed as prohibiting Polycam from utilizing the Usage Data to optimize and improve the Platform, or otherwise in connection with Polycam’s business operations.

9. Confidentiality

1. all licenses granted under this Agreement shall immediately terminate and Customer and the Authorized Users shall immediately cease all use of the Platform. For the avoidance of doubt, any licenses granted under this Agreement which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect;
2. Customer shall immediately pay all sums and amounts payable to Polycam under the terms of this Agreement;
3. unless the parties agree otherwise, each party shall return or destroy, and (in each case) make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party, including the other party’s Confidential Information (except as set forth in Section 8.b below);
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced;
5. Sections 2.c, 2.d, 2.e, 5.b, 7.c, 8, 9, 10, and 11 and any other provisions which are stated to, or which by their terms or nature would be expected to, survive any termination or expiration of this Agreement, shall continue in force notwithstanding termination or expiration of this Agreement.
6. Suspension. Polycam may suspend Customer’s, and its Authorized Users’, right to access the Platform or use any portion or all of the Platform immediately upon notice to Customer if it determines acting reasonably that (i) Customer’s (or an Authorized User’s) use of or access to the Platform (a) poses a security risk to Polycam, the Platform, or any third party; (b) may adversely impact availability or performance of the Platform; (c) may subject Polycam or any third party to any liability; (d) may be fraudulent; (e) where required by applicable law or regulation; or (ii) Customer, or any Authorized User, is in breach of this Agreement or any other agreement by which software being used on or in conjunction with the Platform is licensed.

10. Indemnification

1. Access Credentials. Customer will not share with any third party (other than Authorized Users) Polycam’s access credentials that could be used to access the Platform without Polycam’s prior written consent and will ensure that such access credentials are only used by the Authorized Users. If such individuals(s) cease to act in an authorized capacity on behalf of Customer for any reason then Customer will immediately remove the access credentials from such individual(s). Customer will ensure that all Authorized Users accessing or otherwise using the Platform comply with the applicable terms of this Agreement, and Customer is responsible and liable for any breach of this Agreement by Authorized Users as if such breach was committed by Customer. Customer will be responsible for all activities that occur using Customer’s access credentials.
2. Data Restrictions. Customer shall not (and shall ensure that its Authorized Users do not) upload, store, distribute or transmit any material, information or data (including any Customer Data) to, on, or through the Platform that (i) contains worms, trojan horses, viruses and other similar things or devices or is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activities; or (v) that identifies or can be used to identify a natural person or any other data that may be deemed personal data or personal information under applicable laws or regulations.
3. Technology Restrictions: Customer shall not (and shall ensure that its Authorized Users do not) (i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Polycam Technology; (ii) reverse engineer, disassemble or decompiles the Polycam Technology, or otherwise attempt to discover or disclose the source code of the Polycam Technology; (iii) license, sublicence, resell, rent, lease, distribute, transfer or assign the Polycam Technology; (iv) access or use all or any part of the Platform or Polycam Technology in order to build a product or service which replicates, competes with or is substantially similar to the Platform; (v) attempt to circumvent, modify or disable any safety or security measures in the Platform; (vi) undertake any security testing of the Polycam Technology without the prior written consent of Polycam; (vii) use the Polycam Technology to provide services to third parties; (viii) assist third parties (other than Authorized Users) in obtaining access to the Polycam Technology; or (ix) use the Platform in a manner that violates any applicable law.
4. Responsibilities. Customer shall: (i) provide Polycam with all necessary co-operation in relation to this Agreement and access to such information as may be required by Polycam in order to provide the Platform; (ii) maintain adequate internet connections and technical capabilities to access and use the Platform; and (iii) comply with all applicable laws and regulations with respect to its activities under this Agreement. Customer acknowledges that as between the parties, it is solely responsible for ensuring that its firewalls, security and privacy systems and settings, and other plug-ins or applications, do not interfere with or restrict Customer’s, or its Authorized Users’, access and use of the Platform or Polycam Technology.

11. Limitation of Liability

1. Term. Subject to termination as described herein, the term of this Agreement will commence on the Effective Date and will continue for the Initial Term set forth in the Order Form. Thereafter, this Agreement shall renew automatically for successive terms of 1 year (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides notice of its intent not to renew this Agreement at least 30 days before the end of the then-current Term.
2. Termination for Cause. Either party may terminate this Agreement immediately in the event the other party has materially breached the Agreement and failed to cure such breach within thirty (30) days after notice by the non-breaching party is given. Polycam may also terminate this Agreement, effective immediately upon written notice, if Customer (i) admits in writing its inability to pay its debts generally as they become due; (ii) makes a general assignment for the benefit of its creditors; (iii) institutes proceedings, or has proceedings instituted against it seeking relief or reorganization under any laws relating to bankruptcy or insolvency; or (iv) has a court of competent jurisdiction appoint a receiver, liquidator, or trustee over all or substantially all of such its property or provide for the liquidation of its property or business affairs.

12. Miscellaneous

1. General. Customer shall pay to Polycam all fees set forth in the Order Form (the “Fees”). Any Fees paid shall be non-refundable in any circumstances including upon early termination of this Agreement. Customer shall provide accurate, current and complete information on Customer’s billing address and billing contacts, including email address and phone number, and will promptly notify Polycam if this information changes. Prior to the commencement of any Renewal Term (as defined below), Polycam may modify the Fees by notifying Customer of such modified fees at least 45 days prior to the commencement of such Renewal Term and Customer shall be deemed to accept such modified Fees unless Customer notifies Polycam of its intent not to renew the Agreement in accordance with Section 7.a.
2. Taxes. The Fees are exclusive of all taxes. Each party will be responsible for any taxes based on its income and receipts. Customer is responsible for paying any applicable national, state and local sales, use, excise, ad valorem, value-added, services, consumption, and other taxes and duties imposed in connection with Customer’s or its Authorized Users’ use of the Platform. Customer shall indemnify, defend and hold Polycam harmless from any liability or expense resulting from Customer’s failure to pay any such applicable taxes.
3. Remedies. If Customer fails to make any payment in accordance with this Agreement, then Polycam shall (without prejudice to its other rights and remedies) be entitled to (i) charge interest on the overdue amount at the lesser of the maximum rate allowed by law or a rate of 3%, compounded on a monthly basis, from the date on which such amount fell due until payment, whether before or after judgment; and/or (ii) suspend Customer’s and the Authorized Users’ access to and use of the Platform until payment is made by Customer in accordance with this Agreement.

1. Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Polycam represents and warrants that it shall perform its obligations under this Agreement in compliance with all applicable laws.
2. General Disclaimer. Except as expressly provided in this Agreement, the Platform, Polycam Technology and Outputs are provided “as is” and, to the extent permitted by law, Polycam disclaims all other conditions, warranties, representations, undertakings or other terms which might have effect between the parties with respect to the Platform, Polycam Technology and Outputs, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, accuracy, non-infringement, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Customer acknowledges that the Platform is not error-free and may generate Outputs containing incorrect or inaccurate information. Customer is solely responsible for its use of any Output.
3. Third-Party Service Disclaimers. The Platform may include links or integrations with third-party applications and services (“Third-Party Services”) in connection with Customer’s use of the Platform, which Customer may choose to use in its sole discretion. Customer’s use of any Third-Party Services is solely between Customer and the applicable third party. Polycam is not a party to any agreement with respect to Customer’s use or engagement with any Third-Party Service. Accordingly, Customer acknowledges and agrees that it bears full responsibility for use of any Third-Party Service in accordance with (i) the terms and conditions of the applicable Third-Party Service provider, and (ii) any other legal or regulatory requirements. Polycam will not be responsible or liable to Customer for any loss, damage, expense, liability, or costs Customer suffers or incurs relating to Customer’s use of any Third-Party Service or failure of any Third-Party Service to operate correctly.