TOOLKIT3D ACCESS AGREEMENT

Section 1. Definitions

Words used in this Agreement with their initial letters capitalized and not otherwise defined will have the meanings specified in Appendix A.

Section 2. Customer’s Rights in the Toolkit3d Platform 

2.1 Rights to Use the Toolkit3d Platform. Toolkit3d hereby grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable, revocable right during the Term to: 

(a) access, use, and make available to Authorized Users the Toolkit3d Platform; and

(b) invite and enable Customer’s employees or other designees and, pursuant to Section 4 of this Agreement, End Users (collectively, “Authorized Users”) to create an Account and access and use the Toolkit3d Platform. Customer is responsible for all Authorized Users’ compliance with this Agreement. 

2.2 Restrictions; Limitations. Customer may not use the Toolkit3d Platform in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Toolkit3d Platform or using or accessing the Toolkit3d Platform to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the Toolkit3d Platform; (c) downloading (other than page caching) of any portion of the Toolkit3d Platform or any information contained on the Toolkit3d Platform; (d) performing or disclosing any benchmarking or performance testing of the Toolkit3d Platform; (e) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the Toolkit3d Platform except as authorized in this Agreement; or (f) using the Toolkit3d Platform other than for its intended use. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the Toolkit3d Parties, any patent infringement or other intellectual property infringement claim regarding the Toolkit3d Platform that Customer or any Authorized User has used. The rights granted under this Section 2 are conditioned on Customer’s continued compliance with this Agreement (including, without limitation, Authorized Users’ compliance with this Agreement), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement. 

2.3 Changes to Toolkit3d Platform. Toolkit3d may change the Toolkit3d Platform from time to time, including by changing or removing features or functionality from the Toolkit3d Platform. Toolkit3d will notify Customer of any discontinuation of the Toolkit3d Platform. 

2.4 Suspension of Toolkit3d Platform. Toolkit3d may, in its sole discretion, immediately temporarily suspend access to or use of the Toolkit3d Platform by Customer or any Authorized User if Customer or any Authorized User violates a material restriction or obligation of Customer or Authorized Users in this Agreement (including any Policies), or if in Toolkit3d’s reasonable judgment, the Toolkit3d Platform or any component thereof is about to suffer a significant threat to security or functionality. Toolkit3d will provide advance notice to Customer of any suspension in Toolkit3d’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Toolkit3d will use reasonable efforts to re-establish the affected Toolkit3d Platform promptly after Toolkit3d determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Toolkit3d may terminate access to the Toolkit3d Platform if any of the foregoing causes of suspension are not cured within thirty (30) days after Toolkit3d’s initial notice thereof. Any suspension or termination by Toolkit3d under this Section 2.4 will not excuse Customer from its obligation to make payment(s) under this Agreement. If any Authorized User breaches any term or condition of the Policies, then, in addition to any other remedies available to Toolkit3d, Toolkit3d will have the right, in its sole discretion, to immediately suspend access to the Toolkit3d Platform by the Authorized User who failed to comply with the terms and conditions of the Policies. Any suspension under this Section will remain in effect until the applicable breach, if curable, is cured. 

Section 3. Eligibility; Registration; Support; Data Practices; Toolkit3d Responsibilities

3.1 Eligibility. Customer’s representative entering into this Agreement will be at least 18 years old (or the age of legal majority in his or her state of residence) to execute this Agreement, access and use the Toolkit3d Platform and invite Authorized Users. Customer will ensure all Authorized Users are at least 18 years of age. Customer represents and warrants that it and all Authorized Users are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, Russia, Belarus, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.

3.2 Registration. In order to access and use the Toolkit3d Platform, Customer and each Authorized User will need to register for an Account on the Site. Each Account may only be used by one person - a single Account shared by multiple people is not permitted. Customer will ensure that Customer and each Authorized User that is invited to register for an Account: (a) provides accurate, truthful, current and complete information when creating an Account; (b) maintains and promptly updates all Account information; (c) maintains the security of the Account by not sharing its password with others and restricting access to the Account and their computer or mobile device; (d) promptly notifies Toolkit3d if Customer or any Authorized User discovers or otherwise suspects any security breaches related to an Authorized User’s Account; and (e) takes responsibility for all activities that occur under the Authorized User’s Account and accepts all risks of unauthorized access. Each Account login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. Toolkit3d may prohibit an Authorized User’s access to and use of the Toolkit3d Platform at any time for any reason, including upon request from Customer. If an Authorized User’s right to access and use the Toolkit3d Platform is terminated, the terms set forth in Section 5.3 will continue to apply to the terminated Authorized User.

3.3 Violations. Customer is responsible for any access or use of the Toolkit3d Platform under each Authorized User’s Account, including by any third parties that use any Authorized User’s Account. The acts or omissions of any Authorized User or third party under an Authorized User’s Account are considered the Authorized User’s acts or omissions, as applicable.

3.4 Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Toolkit3d Platform, including, without limitation, modems, hardware, including in-store scanning devices, servers, software, networking, and third-party services to send/receive messages (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Accounts, passwords (including but not limited to administrative, Customer and Authorized User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. 

3.5 Support. During the Term and in its sole discretion, Toolkit3d may provide reasonable levels of technical support to Customer and Authorized Users relating to the use and operation of the Toolkit3d Platform. Any technical support will only be available during business hours (Monday through Friday, 9 AM to 5 PM ET) and will be limited to answering questions concerning the implementation, configuration, use, and operation of the Toolkit3d Platform. Toolkit3d will not be obligated to provide technical support for the Toolkit3d Platform to ensure its proper operation or compatibility with any third-party software or third-party hardware used by Customer, or to correct any errors or defects in the Toolkit3d Platform. From time to time, Toolkit3d may need to access and view Customer Data in order to maintain, debug or repair an issue.

3.6 Toolkit3d Responsibilities. 

(a) Toolkit3d Personnel. Toolkit3d is responsible for the performance of its employees and contractors and their compliance with Toolkit3d’s obligations under this Agreement. Toolkit3d may use non-employee contractors or agents for the purpose of providing the Toolkit3d Platform. 

(b) Security; Third Party Service Providers. Toolkit3d will, at its sole discretion, provide or arrange for all facilities and equipment that it reasonably considers necessary to develop, host, and maintain the Toolkit3d Platform and may use Third Party Service providers to (1) host portions of the Toolkit3d Platform, including hosting Toolkit3d’s servers as virtual instances; and (2) host and process Customer Data on distributed networks owned and maintained by the Third Party Service providers, who are responsible for securing the network and the Customer Data. Toolkit3d will not make any substantive changes to the Third Party Service provider’s applicable services that would be reasonably anticipated to result in any material loss of security, functionality or performance of the Toolkit3d Platform as compared to the Toolkit3d Platform as of the Effective Date. Toolkit3d will have no restriction (a) on selecting a Third Party Service provider to host portions of the Toolkit3d Platform or to store or process Customer Data or (b) regarding the location of the facilities operated by Third Party Service providers.

Section 4. Order Management Services. 

4.1 OMS. Toolkit3d provides certain services integrated into the Toolkit3d Platform that synchronizes with the Toolkit3d Platform and enables merchants to (a) unify their commerce activities, including to manage products, inventory, payments, fulfillment, shipping, business operations, marketing and advertising, and engage with existing and potential customers, either (i) directly by using manufacturing execution systems (each an “MES”) provided by Toolkit3d via the Toolkit3d Platform (the “Toolkit3d OMS”), or by synchronizing Customer’s Toolkit3d Platform with third-party MES (the “Third-Party EMS” and, collectively with the Toolkit3d OMS, the “OMS”) and (b) generate designs, including all measurements, specifications, images, and drawings contained therein (“Outputs”) via a customizer application that is configured by and for Customer to produce Outputs that can be used to design and manufacture Products. Not all OMS or features will be available to all Customers at all times and Toolkit3d is under no obligation to make any OMS or features available in any jurisdiction.

4.2 Customer Responsibilities. In connection with its use of the OMS, Customer:

(a) acknowledges and agrees to provide public-facing contact information, a refund policy and order fulfilment timelines for all orders from End Users made through the Toolkit3d Platform (“Orders”).  

(b) acknowledges and agrees that the OMS are not a marketplace, and any contract of sale made through the OMS is directly between the Customer and the End User. The Customer is the seller of record for all items it sells through the OMS and is responsible for the creation and operation of any content, including all photos, images, graphics, written content, code, information or other data submitted to Toolkit3d (the “Customer-Furnished Materials”), the goods and services that Customer may sell through the OMS (the “Products”), and all aspects of the transactions between Customer and End Users. This includes, but is not limited to, authorizing the charge to the End User for any purchases, refunds, returns, fulfilling any sales or customer service, fraudulent transactions, required legal disclosures, regulatory compliance, and alleged or actual violation of applicable laws (including but not limited to consumer protection laws in any jurisdiction where Customer offers products or services for sale). Customer represents and warrants that Customer, its Customer-Furnished Materials and the Products will be true, accurate and complete, and will not violate any applicable laws, regulations or rights of third parties, including but not limited to laws applicable to Customer’s exchange of email or text communications with End Users. For the avoidance of doubt, Toolkit3d will not be the seller or merchant of record and will have no responsibility for any Products sold to customers through the OMS.

(c) is solely responsible for (a) the Products that it may sell through the OMS (including description, price, fees, tax that Customer’s calculates, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any applicable laws or regulations; and (b) Product fulfillment and Order management, including carrier selection, carrier relationships, warehousing, pick-pack-and-ship, returns, and other on-the-ground operations related to fulfillment and return of Orders.

(d) will comply with all applicable laws, rules and regulations (including but not limited to obtaining and complying with the requirements of any license or permit that may be necessary for Customer to operate and perform its obligations hereunder) and the provisions of this Agreement.

Section 5. OMS Subscriptions; Product Pricing

5.1 Enrolling in an OMS Subscription. Customer may choose to enroll in an automatically renewing subscription for access to the OMS. Subscriptions are on either a monthly or yearly basis (“Subscription Periods”). The recurring fee applicable to the Subscription Period will be identified at the time Customer enrolls in the subscription (“Subscription Fee”), subject to the terms below. Such subscriptions (“Recurring Subscriptions”) are continuous until canceled by Customer. 

5.3 Subscription Fees. Customer will be charged the then-current Subscription Fee both (i) when Customer initially enrolls in a Recurring Subscription and (ii) at the beginning of each subsequent Subscription Period until cancellation. Customer authorizes Toolkit3d and its payment processors to use Customer’s Payment Information to automatically charge the Subscription Fee as stated above. If Customer’s Payment Information cannot be charged for a Subscription Fee, Tookit3d may in its sole discretion (i) bill Customer for the Subscription Fee and suspend its Recurring Subscription until payment is received or (ii) seek updated Payment Information through third-party sources (i.e., Customer’s bank) to use as Customer’s updated Payment Information on a going forward basis.

If Customer believes that Customer has been charged or billed in error or has other fee inquiries, Customer must notify Toolkit3d within thirty (30) days of the charge or billing date by contacting customersuccess@toolkit3d.com. Tookit3d will not issue credits or refunds after the thirty (30) day period has passed, except where required by applicable law.

5.4 Managing Subscriptions. Customer may pause or cancel a Recurring Subscription by contacting customersuccess@toolkit3d.com at least 15 days before the Recurring Subscription renewal date. Customer will not be entitled to any refund as a result of canceling a Recurring Subscription, and the Recurring Subscription will be cancelled at the end of its then-current Subscription Period.

5.5 Price Changes. Toolkit3d may change the Subscription Fee charged for Recurring Subscriptions at any time upon providing notice of the change; provided, however, that the Subscription Fee for any Recurring Subscription will remain in force for the duration of any Subscription Period for which Customer have already paid. After that Subscription Period ends, Customer will be charged at the then-current Subscription Fee on a going forward basis. If Customer does not agree to a Subscription Fee change, Customer must cancel its Recurring Subscription at least 24 hours before the Subscription Period to which the new Subscription Fee applies. It is Customer’s responsibility to ensure that the email address associated with its account remains updated and that such email account will receive notice emails from Toolkit3d.

5.6 Product Pricing. Customer may design and purchase products on a per product basis through the Toolkit3d Platform. Each product purchased will be subject to the per unit product pricing provided via the Toolkit3d Platform at the time of the order.

Section 6. Payments, and Taxes

6.1 Service Fees. Customer will pay service fees \ specified in Section 5 above (the “Fees”). 

6.2 Pricing and Availability. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. Toolkit3d reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which may be sent by email). 

6.3 Payment.

(a) Customer will provide payment via credit or debit card or other form of payment that Toolkit3d may approve from time to time. 

(b) Certain restrictions and terms and conditions apply to certain payment methods. Customer’s payment card may not be accepted, for example, if: (i) the name on the payment card does not match the billing name given; or (ii) the billing address given does not match bank records. Customer represents and warrants that Customer has the right to use any payment method or card submitted in connection with a transaction. Toolkit3d may receive updated information from Customer’s issuing bank or our payment service providers about any payment method Customer has stored on the Toolkit3d platform. Customer authorizes Toolkit to charge the provided payment method, including any updated payment method information Toolkit3d receives, for any charges Customer is responsible for under this Agreement. Verification of information may be required prior to the acknowledgment or completion of any transaction and Customer acknowledges that Toolkit3d will not supply any products until payment is verified and confirmed. Customer will pay all charges it incurs or incurred on its behalf through the Services, including all taxes and shipping and handling charges applicable to the product purchases. In the event legal action is necessary to collect on balances due, Customer will reimburse Tookit3d and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. 

6.4 Taxes. Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s use of the Toolkit3d Platform. Toolkit3d will collect applicable sales tax if it determines that Toolkit3d has a duty to collect sales tax. Toolkit3d will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.

6.5 Refunds. With regards to the OMS, Toolkit3d does not provide refunds. All refunds will be the responsibility of the Customer and will be handled between the Customer and the End User, unless the parties mutually agree otherwise.

Section 7. 

7.1 Term. The term of this Agreement will commence on the Effective Date and will continue until the expiration or termination of Customer’s recurring subscription or otherwise terminated by Toolkit3d in its discretion (the “Term”). 

7.2 Effect of Termination. In the event of any termination of the Term:

(a) all of Customer’s and each Authorized User’s rights under this Agreement will immediately terminate, the license granted to Customer in this Agreement will terminate and Customer and all Authorized Users will immediately cease any access or use of the Toolkit3d Platform;

(b) if Toolkit3d terminates Customer’s access to the Toolkit3d Platform under Section 2.4, then Customer will remain responsible for the remaining balance of the Fees in Customer’s Order Form and Customer will pay within thirty (30) days all amounts, as well as all sums remaining unpaid for other Order Forms under the Agreement plus related taxes and expenses; 

(c) Toolkit3d, at its sole discretion, may remove and forward to Customer any Customer Data from the Toolkit3d Platform or may permit Customer to access the Toolkit3d Platform for thirty (30) days after the Effective Date of termination solely in order to remove any Customer Data from the Toolkit3d Platform. Thereafter, Toolkit3d will have no obligation to maintain any Customer Data or to forward any Customer Data to Customer or any third party; and 

(d) Sections 1, 2.2, 3.3, 5, 6, 7.2, and 8 through 13 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.

Section 8. Indemnification 

To the fullest extent permitted by applicable law, Customer will defend, indemnify, and hold harmless the Toolkit3d Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party or Authorized User claim concerning: (a) Customer’s or Authorized Users’ unauthorized use of the Toolkit3d Platform including, without limitation, any use of the Toolkit3d Platform other than as permitted under this Agreement; (b) any Customer Data or other data or content related to Customer, End Users, or Authorized Users that Customer or its End Users provide, upload, or input into the Toolkit3d Platform; (c) the combination of the Customer Data with other applications, content or processes; (d) Customer’s violations of any law or the rights of a third party; and (e) any aspect of the transaction between Customer and any End User, including but not limited to refunds, fraudulent transactions, alleged or actual violation of applicable laws (including but not limited to federal and state consumer protection laws), product liability or Customer’s breach of this Agreement. Customer will be responsible for any breach of this Agreement by its affiliates, agents or subcontractors and will be liable as if the breach was its own. If Toolkit3d is obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Customer will also reimburse Toolkit3d for reasonable attorneys’ fees, as well as the time and materials spent by Toolkit3d’s employees and contractors responding to the third-party subpoena or other compulsory legal order or process at Toolkit3d’s then-current hourly rates. For any claims under this Section 7.1, Customer will obtain Toolkit3d’s written consent prior to (i) selecting and retaining counsel to defend against any claim under this Section 7.1 and (ii) agreeing to any settlement. Toolkit3d may also assume control of the defense and settlement of any claim subject to this Section 7.1 at any time.

Section 9. Ownership

9.1 The Toolkit3d Platform and Services. As between Toolkit3d and Customer, Toolkit3d owns all right, title, and interest in and to the Toolkit3d Platform including all Toolkit3d Technology incorporated therein, and all updates and improvements thereto, together with all Intellectual Property Rights therein and thereto, but excluding any customizations or implementations to the Toolkit3d Platform made specifically for and by Customer. Customer owns all right, title, and interest in and to all such customizations and implementations, excluding the underlying Toolkit3d Platform or Toolkit3d Technology incorporated or embodied therein. Toolkit3d reserves all rights not expressly granted in this Agreement, and except as expressly granted in this Agreement, no licenses are granted by Toolkit3d to Customer under this Agreement, whether by implication, estoppel or otherwise.

9.2 Customer-Furnished Materials. Toolkit3d does not claim ownership of the Customer-Furnished Materials Customer provides to Toolkit3d. Customer hereby grants a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, translate and create derivative works of any Customer-Furnished Materials provided by Customer in connection with the OMS. Toolkit3d may use its rights under this license to operate, provide, and promote the OMS and to perform its obligations and exercise its rights under this Agreement. Customer represents, warrants, and agrees that it has all necessary rights in the Customer-Furnished Materials to grant this license. Customer agrees that Toolkit3d may, at any time, review and delete any or all of the Customer-Furnished Materials submitted to the OMS, although it is not obligated to do so.

9.3 Ownership of Outputs. As between the parties, Customer owns and will own all right, title and interest in and to the Outputs. Customer hereby grants to Toolkit3d a worldwide, non-exclusive, perpetual, irrevocable, transferable, and sublicensable (through multiple tiers) license to (a) copy, reproduce, transmit, distribute, create derivative works based on the Outputs; (b) make, have made, sell, offer for sale, import, and otherwise exploit products or services that derive from or are materially similar to the Outputs, in each case in order to provide services to other customers and provided that Toolkit3d’s exploitation of its rights granted herein does not include or incorporate any Customer-Furnished Materials.

9.4 Feedback. Customer and Authorized Users may voluntarily provide Toolkit3d with Feedback and may make Authorized Users available to Toolkit3d on a reasonable basis for this purpose. Customer will not, and will ensure Authorized Users do not, provide any Feedback to any third party without Toolkit3d’s prior written consent in each instance. Any Feedback Customer or Authorized Users provide to Toolkit3d may or may not be treated confidentially by Toolkit3d, and will become the sole property of Toolkit3d. Toolkit3d will own, and Customer and Authorized Users hereby assign, all exclusive rights, including, without limitation, all Intellectual Property Rights, in and to Feedback and Toolkit3d will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer or any Authorized Users. 

9.5 Trademarks. As between Toolkit3d and Customer, Toolkit3d owns all right, title and interest in and to the Toolkit3d Marks and any goodwill arising out of the use of the Toolkit3d Marks will remain with and belong to Toolkit3d and its licensors. The Toolkit3d Marks may not be copied, imitated or used without the prior written consent of Toolkit3d or the applicable trademark holder. Customer hereby grants to Toolkit3d a non-exclusive, worldwide, limited, sublicensable, transferable, royalty-free, irrevocable right and license to use Customer Marks solely as may be necessary to provide Toolkit3d Platform to Customer as a white labeled offering. 

9.6 Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the Toolkit3d Platform and related Intellectual Property Rights referred to in Section 9.1. Customer will immediately notify Toolkit3d of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer or Authorized Users, Customer will take all steps reasonably necessary to terminate the Unauthorized Use. Customer will immediately notify Toolkit3d of any legal proceeding initiated by Customer in connection with any Unauthorized Use. Toolkit3d may, at its option and expense, assume control of the proceeding. If Toolkit3d assumes control, Toolkit3d will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide assistance related to the proceeding as Toolkit3d may reasonably request. Customer will assist Toolkit3d in enforcing any settlement or order made in connection with the proceeding.

9.7 Customer Data. 

(a) In connection with the Toolkit3d Platform, Toolkit3d will collect Customer Data. More information regarding how Toolkit3d uses Customer Data can be found in the Toolkit3d Privacy Policy, located at [insert link]. Customer will own all Customer Data and hereby instructs and authorizes Toolkit3d to provide services to and communicate with Authorized Users about their Accounts and Toolkit3d products and services (the “Purpose”). As between Toolkit3d and Customer, Customer retains all right, title and interest in and to any Customer Data. Except as provided in this Section 9, Toolkit3d obtains no rights under this Agreement from Customer to the Customer Data, including any related Intellectual Property Rights.

(b)  Toolkit3d reserves the right to: (i) disclose Customer Data to its service providers and where required by applicable law or court order; (ii) disclose aggregated Customer Data to third parties; and (iii) store Customer Data in the United States and other countries.  

(c) Customer hereby grants to Toolkit3d a perpetual, irrevocable, nonexclusive license to collect, use, store, maintain, and make Customer Data available to third parties as authorized by the Purpose. 

 (i) By using or distributing access to the Toolkit3d Platform, Customer consents, on behalf of Customer and Authorized Users (as applicable), to have Customer Data (including personal information) transferred to and processed in the United States or any other country in which Toolkit3d operates, where Customer or Authorized Users may have fewer rights than under local law.  

 (ii) Customer will provide all legally required notices to ensure that Customer and Toolkit3d may collect, use and disclose Customer Data in accordance with the terms of this Agreement without violating any applicable laws, including by providing notice of a privacy policy that accurately describes how Customer collects, uses and discloses information from Authorized Users, as applicable. Without limiting the generality of the foregoing, Customer will ensure that Customer’s privacy policy discloses that information from Authorized Users may be shared with Toolkit3d, including as described in this Section 8.5.  Customer’s privacy policy will apply to all of Customer’s interactions with Authorized Users.

Section 10. Limited Warranties and Remedies

10.1 Mutual Warranties. Each party represents and warrants that: 

(c) it is validly existing and in good standing under the laws of the place of its establishment or incorporation. 

(d) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement.

(e) this Agreement is valid, binding and enforceable against it in accordance with its terms.

10.2 Customer Warranties. Customer represents and warrants that: 

(a) it possesses all necessary rights and consents to grant Toolkit3d the rights set forth in this Agreement with respect to all Customer Data.

(b) it has collected all Customer Data in accordance with all applicable laws, rules, and regulations.

(c) neither the Customer Data, nor Customer’s use of the Customer Data in accordance with this Agreement, will (i) infringe, misappropriate, or otherwise violate any rights of any third party or (ii) violate applicable laws, rules, or regulations.

(d) Customer will use Toolkit3d Platform in accordance with all applicable laws, rules, and regulations.

10.3 DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SITE AND THE TOOLKIT3D PLATFORM (INCLUDING, WITHOUT LIMITATION, THE OMS SERVICES) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (B) CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND REGARDING THE SITE, THE TOOLKIT3D PLATFORM OR ANY ADDITIONAL SERVICE, INCLUDING ANY WARRANTY THAT (I) THE SITE, THE TOOLKIT3D PLATFORM OR ANY ADDITIONAL SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, (II) THE INFORMATION OBTAINED BY THE CUSTOMER THROUGH THE SITE, THE TOOLKIT3D PLATFORM OR ANY ADDITIONAL SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS OR (III) ANY MATERIALS OR CUSTOMER DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE BE LOST OR DAMAGED AND (C) TOOLKIT3D AND ITS SUPPLIERS DISCLAIM ALL LIABILITY FOR ANY AND ALL (I) DELAYS, DELIVERY FAILURES OR OTHER LOSSES INHERENT IN THE USE OF COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, (III) DELAYS IN THE PERFORMANCE BY TOOLKIT3D CAUSED BY CUSTOMER’S LACK OF COOPERATION OR BY DELAYS IN CUSTOMER PROVISION OF MATERIALS TO TOOLKIT3D, AND (IV) MATERIALS, PRODUCTS OR SERVICES THAT CUSTOMER MAY DESIGN, CREATE OR OTHERWISE DERIVE USING OR IN RELIANCE ON THE SITE, THE TOOLKIT3D PLATFORM OR ANY ADDITIONAL SERVICE.

Section 11. Limitations of Liability

11.1 Force Majeure. Neither party will be liable for, or be considered to be in, breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond the party’s reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party.

11.2 Limitation of Liability. IN NO EVENT WILL ANY OF THE TOOLKIT3D PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF CUSTOMER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITE, THE TOOLKIT3D PLATFORM OR ANY ADDITIONAL SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, OR THE PERFORMANCE OF SERVICES EXCEPT FOR (A) A PARTY’S VIOLATION OF SECTION 5 (PAYMENTS AND TAXES) OR SECTION 8.6 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (C) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE TOOLKIT3D PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF (1) THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO TOOLKIT3D FOR THOSE SERVICES FOR THE 30 DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (2) $250,000. 

Section 12. Confidential Information

Each party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect the Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 11 will not be interpreted or construed to prohibit any use or disclosure of information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) that is independently developed by the Recipient; (c) that is acquired by the Recipient from another source without restriction as to use or disclosure; (d) that is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (e) that is required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (f) that is made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce those obligations. 

Section 13. Miscellaneous

13.1 Independent Contractors. Each party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligations or liability upon either party. Further, neither party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other party.

13.2 Reference Program. Customer may voluntarily consult with Toolkit3d and work in good faith to agree on quotes and statements about Customer’s experience with the Toolkit3d Platform. If Customer or an Authorized User volunteers quotes or statements, Toolkit3d may, at its option, use the quotes and statements in connection with its sales and marketing activities. 

13.3 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.4 Assignment. Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Toolkit3d. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.

13.5 Nonwaiver. The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of the party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.

13.6 No Third-Party Beneficiaries. No person or entity who is not a party to this Agreement will have any right to enforce any provision herein, regardless of whether the person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this will not affect the rights of any permitted assignee or transferee of this Agreement.

13.7 Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond the party’s control, without the party’s fault or negligence and that by its nature could not have been foreseen by the party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Customer’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or supplier actions or contract disputes will not excuse performance by Customer under this Section 12.7. Customer will give Toolkit3d prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event and the anticipated duration of the Force Majeure Event. Customer will use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement. Toolkit3d may terminate this Agreement for a delay caused by a Force Majeure Event that lasts more than 30 days.

13.8 Applicable Law and Venue.  This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. If federal jurisdiction exists, the parties consent to exclusive jurisdiction and venue in the federal courts of the Western District of Washington located in King County. If not, the parties consent to exclusive jurisdiction and venue in the state courts located in Whatcom County, Washington. Both parties waive all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

(a) If a dispute arises between Toolkit3d and Customer, then executives of each party will meet in virtually or in person at a mutually agreed upon location within ten (10) days of the notice from one party to the other of the dispute and attempt in good faith to negotiate and resolve the dispute.  If the dispute is not resolved by the executives within fifteen (15) days after the meeting, then either party may submit the dispute for mediation upon written notice to the other party. The mediator will be selected by the parties, acting in good faith, from mediators in Whatcom County, Washington skilled in mediating complex commercial contract disputes. 

(b) The mediator will conduct the mediation as he/she determines, with the agreement of the parties. The parties will discuss the dispute in good faith and attempt, with the mediator’s assistance, to reach an amicable resolution of the dispute. The mediation will be treated as a settlement discussion and will therefore be confidential. The mediator may not testify for either party in any later proceeding relating to the dispute. The mediation proceedings will not be recorded or transcribed.

(c) Each party will bear its own costs in the mediation. The parties will share equally the fees and expenses of the mediator.

(d) If the parties have not resolved a dispute within thirty (30) days after the initial mediation discussion or forty-five (45) days after the written notice to initiate mediation, whichever is first, the mediation will terminate and the dispute will be settled by arbitration.

(e) Except for any IP Dispute, any dispute submitted for arbitration pursuant to this Section 12.8 will be arbitrated under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including, if applicable, Supplementary Procedures for International Commercial Arbitration, in English at Seattle, Washington, before one neutral arbitrator who may be a national of any party and who will be a member of the AAA's Large Complex Case Panel. Any issues about the arbitrability of a dispute will be determined by the arbitrator. All documents and information relevant to the dispute in the possession of any party will be made available to the other party not later than sixty (60) days after the demand for arbitration is served, and the arbitrator may permit depositions or other discovery deemed necessary for a fair hearing. The arbitrator will have the power to require discovery of third parties (including testimony and documents) to the fullest extent allowed by federal law or the laws of the State of Washington. The hearing may not exceed two days. The arbitrator’s award will be rendered within 120 days of the demand. The arbitrator may award interim and final injunctive relief and other remedies, but may not award damages limited in Section 10 above whether under contract, tort, statute, or any other basis for liability unless they are required by statute as determined by the arbitrator. No class arbitration will be allowed, but other parties may be joined as necessary to resolve the dispute. No time limit herein is jurisdictional. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction. Notwithstanding anything to the contrary in this paragraph, Toolkit3d may, at any time, bring court proceedings or claims against each other (a) solely as part of separate litigation commenced by an unrelated third party, or (b) solely to obtain temporary or preliminary injunctive relief or other interim remedies before the federal courts of the Western District of Washington located in King County, Washington, pending conclusion of the arbitration. In the case of contradiction between the provisions of this Section 12.8 and the Commercial Arbitration Rules of AAA, this Section will prevail. The limitations on remedies described above may be deemed inoperative to the extent necessary to preserve the enforceability of the agreement to arbitrate. If any provision of this agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions will remain valid and enforceable.

13.10 Publicity. Either party may issue a press release or similar public statement regarding this Agreement without the prior approval of the other party. The parties will meet at least once annually, or on a cadence as the parties may otherwise mutually agree, to discuss and agree upon specific marketing and publicity initiatives, including case studies, reports, white papers and other, similar opportunities.

13.11 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.

13.12 Entire Agreement. This Agreement, together with any agreement or other policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. 

 
Appendix A Definitions

“Account” means a single user electronic account permitting Customer or End Users to access and use the Toolkit3d Platform. 

“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs).  

“Customer Data” means any data or information provided by Customer or any Authorized User to Toolkit3d collected through the Toolkit3d Platform or otherwise. For example, Customer Data includes log-in information for Authorized Users. This includes sensitive, confidential, or personally identifiable information that is transmitted by, processed in some way, or stored in electronic media.

“Customer Marks” means any trademarks, service marks, service or trade names, logos, branding, and other designations of Customer and its affiliates. 

“Discloser” means a party that discloses any of its Confidential Information to the other party.

“Documentation” means the online documentation relating to the Toolkit3d Platform furnished or made available by Toolkit3d to Customer. 

“End User” means any consumer that purchases or receives products or services from Customer through the Toolkit3d Platform. 

“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the Toolkit3d Platform.

“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).

“IP Dispute” means any dispute, cause of action, claim, or controversy relating to Customer’s or Toolkit3d’s Intellectual Property Rights.

“Policies” means all restrictions described on the Site related to the Toolkit3d Platform, and any other policies and procedures related to Customer’s and Authorized Users’ access and use of the Toolkit3d Platform. 

“Recipient” means a party that receives any Confidential Information of the other party.  

“Services” means services described in this Agreement.

“Site” means https://toolkit3d.com/, and any successor or related web site designated by Toolkit3d. 

“Third Party Materials” means any software, technology or other materials that is acquired or licensed by Toolkit3d from a third party that is included in the Site, the Toolkit3d Platform or the Toolkit3d Technology, including all improvements, updates, bug fixes or upgrades thereto.  

“Third Party Services” means software or services acquired or licensed by Toolkit3d from a third party that is included in the Toolkit3d Platform or otherwise made available to Customer or its Authorized Users.

 
“Toolkit3d Marks” means any trademarks, service marks, service or trade names, logos, branding, and other designations of Toolkit3d and its affiliates. 

“Toolkit3d Parties” means Toolkit3d and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents. 

“Toolkit3d Technology” means any existing software, technology or other materials, excluding Third Party Materials, to which Toolkit3d retains all right, title, and interest and which are included in the Site or the Toolkit3d Platform, including all improvements, updates, bug fixes or upgrades thereto.

“Toolkit3d Platform” means the software as a service provided by Toolkit3d under this Agreement along with any improvements, updates, bug fixes or upgrades thereto.

“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the Toolkit3d Platform or Documentation of Toolkit3d that is not expressly authorized under the Agreement or otherwise in writing by Toolkit3d.