Easel Pro End User License Agreement

EASEL PRO END USER LICENSE AGREEMENT

(Last Updated – October 20, 2018)

This End User License Agreement (this “Agreement”), which is a legal agreement between you (“Licensee”) and Inventables, Inc., a Delaware corporation ("Inventables"), shall govern Licensee’s use of and access to the Platform (as defined below). By checking any acceptance boxes, clicking any acceptance buttons, activating an account within the Platform or making any other use of the Platform, Licensee (a) accepts this Agreement and agrees to be bound by each of its terms, and (b) represents and warrants to Inventables that (i) Licensee has the authority to enter into this Agreement, and (ii) this Agreement is binding and enforceable against Licensee. Please read this Agreement carefully, as it constitutes a legally-binding agreement between Inventables and Licensee. It is agreed and understood that a license may be purchased by Licensee either through Inventables’ website (the “Website”) or in connection with the purchase of a machine or other product at the Website or elsewhere.

Platform. Subject to the terms set forth herein, Licensee hereby subscribes for access to the Platform on a limited, revocable, non-exclusive, non-transferable and non-sublicensable license basis solely for the purposes described within the Website or within the Platform. Inventables shall host, or engage one or more third parties to host, the back end of the Platform in accordance with Inventables’ customary practice. For purposes of this Agreement, "Platform" shall mean Inventables’ “Easel Pro” software primarily intended to serve as a tool for 3D carving. So long as Licensee’s license to access and use the Platform remains current, Inventables will provide Licensee with its standard and customary support by e-mail between the hours of 9:00 a.m. and 5:00 p.m. (Central Standard Time).
Representations and Warranties. Each party represents and warrants that: (i) it has the authority to enter into this Agreement and perform the services required of it hereunder; and (ii) each party will comply with all applicable laws and regulations in carrying out its responsibilities hereunder. In addition, Licensee hereby represents, warrants and covenants that (a) Licensee has all authority necessary to enter or import all data or other information Licensee either submits to Inventables or enters into the Platform (collectively, “Submitted Information”), (b) Licensee will not submit or otherwise made available any extraneous or inappropriate Submitted Information to Inventables or within the Platform, and (c) Inventables, immediately upon receipt of Submitted Information, will have all rights necessary to use the Submitted Information for purposes of operating the Platform.
Fees; Expenses. In consideration of the license hereunder, Licensee shall pay to Inventables the fees specified within the Website or within any online order form for the Platform (each, an “Order”) from time to time, in each case at the times specified therein. Fees may, as set forth within the Website or Order from time to time, be charged monthly or annually. To the extent Licensee provides any credit card to Inventables, whether via Inventables’ website or via any other means of communication, Inventables shall be entitled to charge such credit card for all fees due and owing as set forth herein (such authorization to extend until such time as Licensee terminates this Agreement in accordance with the terms set forth herein). Fees, once paid, are non-refundable. Fees which are not timely paid shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. Licensee may not offset or withhold fees due under this Agreement for any reason, and Licensee agrees to reimburse Inventables for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Licensee.
Term. This Agreement shall continue in full force beginning on the date of acceptance of this Agreement and continuing (i) on a year-to-year basis, as described within the Website and/or Order, until such time as either party elects not to renew this Agreement by providing written notice of non-renewal to the other party at least 10 days prior to the expiration of any term year, (ii) for one year, subject to extension by mutual written or electronic agreement of the parties, or (iii) as otherwise set forth within the Website or Order from time to time. In addition, either party shall be entitled to terminate this Agreement at any time in the event the other party (i) declares bankruptcy, or (ii) breaches any of its material obligations hereunder (including, without limitation, payment obligations) and fails to cure such breach within 30 days from the date of receipt of written notice of such breach. Upon any termination of this Agreement, Licensee shall promptly pay all fees and reimburse Inventables for all expenses due and owing hereunder, and upon any early termination of this Agreement by Licensee, no refunds will be issued. It is agreed and understood that Licensee’s license to the Platform described herein may be activated in any number of ways, including without limitation (x) activation by Licensee at the time of purchase of the initial Platform license, (y) subsequent activation by Licensee using an activation key provided by Inventables, or (z) automatic activation initiated by Inventables at any time following initial purchase of the Platform license by Licensee (Inventables to have sole discretion in electing to cause any such activation at any time). Sections 2 through 14 of this Agreement shall survive any termination of this Agreement.
Intellectual Property.
1. Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. Inventables shall retain sole ownership over the Platform and all software and/or other intellectual property utilized by Inventables hereunder (including, without limitation, any improvements or enhancements to any such software platform which occur during the term of this Agreement), and except as set forth herein no license or other rights to any such software are conferred on Licensee hereunder. Inventables shall be entitled to list Licensee as a client on the Website and/or in marketing materials. All suggestions, recommendations, bug-fixes, error-fixes or other communications from Licensee to Inventables regarding the Platform shall, upon submission to Inventables, be owned solely and exclusively by Inventables. Licensee shall be entitled to share projects or other work product it creates within the Platform with third parties by using the share feature within the Platform. In addition, certain Inventables employees are provided with administrative access to review all projects and/or work product created within the Platform from time to time.
2. Restrictions. Licensee shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of the Platform, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Licensee shall use the Platform solely for its intended purposes and shall not use the Platform for the benefit of any third party except as specifically contemplated under this Agreement. Licensee will not use the Platform: (a) in violation of any applicable law; (b) such that any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information are entered into the Platform; or (c) in violation of the any acceptable use policy or other policy posted at Inventables’ website or otherwise made available to Licensee from time to time. Licensee shall be solely responsible for: (i) ensuring that each of Licensee’s permitted users within its business complies with the terms set forth herein; and (ii) maintaining all passwords and access codes to the Platform, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes. Any other software included in the Platform is licensed subject to the additional terms of the applicable license, all of which are incorporated herein by reference. In addition, Licensee shall adhere to all usage and/or user limits set forth in any documentation provided to or made available to Licensee in connection with accessing the Platform, whether by hard copy or electronically.
Confidentiality. Licensee agrees to treat as confidential all non-public information of Inventables (including, without limitation, all non-public information regarding the Platform and Inventables’ business), not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, Licensee shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by Inventables, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.
Disclaimer. Except as explicitly set forth herein, Inventables, together with Inventables’ employees, affiliates, agents, suppliers, licensors and the like, does not make any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Platform will be error-free, (c) as to a minimum level of operability or uptime for the Platform, (d) as to any level of security, (e) as to the actions of any third party, or (f) as to the business results that may be obtained by Licensee by entering into this Agreement. Licensee is responsible, at Licensee's sole cost and expense, for providing all equipment necessary to load and/or use the Platform. While it is Inventables’ objective to make the Platform accessible at all times, the Platform may be unavailable from time to time for any reason including, without limitation, routine maintenance and/or bugs within the Platform.
Limitation on Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF INVENTABLES TO LICENSEE FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO INVENTABLES DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. TO THE EXTENT ANY OF THE FOREGOING LIMITATIONS ARE NOT PERMISSIBLE UNDER APPLICABLE LAW, SUCH LIMITATIONS SHALL NOT APPLY TO LICENSEE.
Force Majeure. Excluding payment obligations hereunder, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
Governing Law. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by the appropriate court located solely and exclusively in Cook County, Illinois. Licensee agrees to such exclusive jurisdiction in Cook County, Illinois, and waives any jurisdictional claims in respect thereto (including, without limitation, forum non conveniens). In any such proceeding, the substantially prevailing party shall be entitled to reimbursement by the non-prevailing party for all attorneys' fees expended in such matter.
Non-Solicitation. During the term of this Agreement and for a period of 1 year following the termination of this Agreement for any reason, Licensee shall not, either directly or indirectly, solicit or hire any employee of Inventables or any individual that was an employee of Inventables at any time during the 1-year period immediately preceding the date of proposed hire.
Export. The Platform, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations. The Platform may not be used, sold, resold, sublicensed, diverted, transferred or otherwise exported or re-exported by Licensee: (i) in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies; (ii) in, into or through any country for which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the United States Department of Commerce's Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury's Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government or any of its agencies as a party with which it is unlawful to do business.
Usage of Platform. The following terms and conditions govern general use of the Platform:
1. Permitted Uses. Licensee may use the Platform only in good faith for the purposes described herein. Licensee may not use the Services to promote another business or commercial venture unless separately agreed with Inventables.
2. Distribution. Except as expressly permitted under other provisions of this Agreement, Licensee may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any data or content within the Platform.
3. Infringement. Licensee may not use the Platform or any other materials from the Platform in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Inventables or any third party.
4. Other Prohibited Uses. Licensee may not use the Platform for any purpose that:
  1. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or otherwise violates Inventables’ rules or policies;
  2. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
  3. invades any person’s or entity’s privacy or other rights;
  4. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
  5. misidentifies Licensee or impersonates any person or entity, including, without limitation, any employee or representative of Inventables, or falsely states, implies, or otherwise misrepresents Licensee’s affiliation with a person or entity by, for example, pretending to be someone other than Licensee or pretending to represent a company or organization that Licensee is not affiliated with or authorized to represent; or
  6. could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
5. Harm to Minors. Licensee may not take any action in connection with the Platform to harm minors in any way.
6. Solicitation. Licensee may not use the Platform in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Inventables shall be entitled to subcontract various of the services to be performed hereunder to third parties. This Agreement supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). Licensee shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Inventables’ income derived hereunder. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by Licensee other than to an entity acquiring substantially all of its business and assuming all of its obligations. Any notice pursuant this Agreement shall be deemed effective when delivered in person, or one day after sending such notice to: (i) in the case of Inventables, 600 W Van Buren St, Suite 215, Chicago, Illinois 60607; and (ii) in the case of Licensee, to the last address provided by Licensee to Inventables in writing, in either case by reputable overnight courier with confirmation of next-day receipt. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.