SaaS Terms of Service

SaaS Terms of Service

SaaS Terms of Service

Last Update: 11/11/2021

This is a legal agreement (“Agreement”) between you and ConfigWise B.V., a limited liability company incorporated under the laws of the Netherlands, having its registered address at Cypresbaan 16a, Capelle aan den IJssel - 2908 LT (“ConfigWise”, “We”, “Us”, “Our”). As used in this Agreement, “you” refers to a user of the service (also referred to as the “Customer”). We strongly recommend you to carefully read this Agreement as it becomes binding on you when you use our services. If you do not agree to the terms set forth herein, you should not use or immediately cease using our services.

Definitions

For the purpose of this Agreement, the capitalized terms as defined below shall have the following meanings whereby these terms may be used in the singular or the plural form and vice versa, as the context so requires.

Business Day means any day except any Saturday, any Sunday, or any other day which is a legal holiday or any day on which banking institutions are authorized or required by law or other governmental action to close in the Netherlands.

Confidential Information means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).

Fee means the consideration to be paid by the Customer to ConfigWise which covers the provision of the Service by ConfigWise to the Customer, in accordance with the terms thereof.

License means permission to use the Service by the Customer in return for a consideration.

Party or Parties means Customer and ConfigWise individually or together.

Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.

Security Breach means accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. It includes, without limitation, denial of service (“DoS”), distributed denial of service (“DDoS”), network sniffing/monitoring, packet spoofing, and forged routing information for malicious purposes.

Service means digitization of Customer’s product into 3D models, uploading them into a content management system (“CMS”), integrating them onto the website of the Customer through 3D viewers with scannable QR codes and enabling the possibility of viewing products directly in augmented reality, whether in web or app.

Service Provider means ConfigWise that provides the Service as set out in this Agreement.

Support Hours means working days which cover business days (excluding weekends and official holidays) in the Netherlands and from 9 a.m. to 5 p.m.

Term means a period of time during which the Agreement is in force between the Customer and the ConfigWise.

Website means the website of ConfigWise which is located at https://www.configwise.io

1. General Terms

ConfigWise owns, or holds the relevant rights to the Service and will license the use of the Service to the Customer.

The Customer wishes to license the Service from the Service Provider.

This Agreement sets out the terms upon which the Service Provider has agreed to grant a license to the Customer to use the Service. This Agreement is binding on any use of the Service and applies to the Customer from the time that the Service Provider provides the Customer with an account to access and use the Service.

By accessing and/or using the Service you: (i) you acknowledge that you have carefully read and understood this Agreement, and (ii) you warrant that you have legal capacity to enter into this Agreement or, if you are under 18 years of age, you have your parent’s or legal guardian’s permission to access and use the Service and they have agreed to the terms set forth in this Agreement.

2. License

In consideration for payment of the fees which are set out on the relevant section of our Website, ConfigWise grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the Service in accordance with the terms set forth in this Agreement. The License starts from the day the Customer is granted access to the Services by ConfigWise.

Nothing in this Agreement shall be deemed to constitute the grant of a license of any sort or any other right in our proprietary software, patents, trade and service marks, rights, copyrights interests, (personal) data, or any other interest in the mobile and web application or computer program, including source code, forms, schedules, manuals, other proprietary items or intellectual property utilized or provided by ConfigWise in connection to this Agreement.

3. License Restrictions

The Customer is only permitted to access or use the Service in compliance with the Licence and the terms of this Agreement.

The Customer agrees and acknowledges that it must not and will not permit any person to: a) resell, assign, transfer, distribute or provide others with access to the Service; b) “frame”, “mirror” or serve any of the Service on any web server or other computer server over the Internet or any other network; c) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Service; or d) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the Service.

The Customer shall not use the Service in any way which is in breach of any statute, regulation, law or legal right of any person within the Netherlands or the jurisdiction in which the Customer is located.

4. Prohibited Use of the Service

The Customer shall not use the Service for any of the following prohibited use cases. It is the duty of the Customer to ensure that it will not, and will ensure that any authorized user by the Customer does not use the Service: a) to violate any legal rights of any person, the Customer or other entity in any jurisdiction; b) in relation to crimes such as theft and fraud; c) in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy.

Additionally, the Customer must ensure that it or any of its authorised users, if any, will not a) make any unauthorised copy of any copyrighted material owned or licenced by the Service Provider, b) introduce malicious programs into the Service Provider’s information systems (e.g. viruses, worms, trojan horses, etc.), c) reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or its authorised users, d) use the Service to make fraudulent offers of goods or services, e) use the Service to carry out Security Breaches or disruptions of a network.

5. Service Provider’s Warranties

To the best of its knowledge, ConfigWise represents and warrants that the Service does not infringe on the intellectual property rights of any other parties, and that there are no actual or threatened proceedings for any intellectual property infringements in relation to the Service.

ConfigWise makes no warranties that the Service will be error-free or uninterrupted, or that, except as expressly stated in this agreement, the Service will be performed in the manner intended by the Customer or that the Service will meet the Customer's requirements.

The Customer acknowledges and agrees that each 3D modeling of an original product image will render a visualization of that product, and therefore may not entirely represent all visual characteristics of the original product.

The Customer also acknowledges and agrees that ConfigWise reserves the right to review, approve and reject its 3D models and product images at any time during the Term of this Agreement.

The delivery date of the Service is determined at sole discretion of the ConfigWise. Exceeding the delivery date does not entitle the Customer to any compensation or dissolution of this Agreement, without prejudice to the statutory provisions regarding the purchase by a consumer.

ConfigWise may change the queue of the Service requests based on our priority and premium tickets. The Customer acknowledges and agrees that losing its queue to those who purchase our priority or premium tickets will not give rise to any claim against ConfigWise.

We rely and are dependent on certain underlying third party software and platforms such as Amazon Web Services (AWS), Apple and Android (“third-party platform”). If these companies change their software or cease to support their software we will try our best to make the changes to our Service in order to be able to continue regular functioning of our Service. However, we disclaim any responsibility in case the third-party platforms decommission certain software, library, frameworks.

During the Term, the Service Provider may provide support services to the Customer during the Support Hours, where required by the Customer, provided that the Customer assists with investigating and ascertaining the cause of the fault and provides to the Service Provider all necessary information relevant to the fault.

ConfigWise shall maintain reasonable security measures to ensure the safety and protection of all Confidential Information in its possession or control, or in the possession or control of its personnel, from unauthorised access, use, copying or disclosure.

6. Customer’s Responsibilities and Obligations

The Customer is responsible for its use of the Service and must ensure it does not use the Service: a) to break any law or infringe any person’s rights including but not limited to intellectual property rights, b) to transmit, publish or communicate content that is defamatory, offensive, abusive, or menacing, or c) in any way that damages, interferes with or interrupts the supply of the Service.

The Customer also acknowledges and explicitly agrees that: a) it is responsible for all users, including its Personnel, using the Service, b) its use of the Service will be at its own risk; and c) it is responsible for the security of its account and password and that the Service Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation.

The Customer represents and warrants that all materials, 3D models and product images it sends to us, shall not violate, or infringe any existing copyrights, trademarks, publicity rights, trade secrets, patents, or any other proprietary rights. Moreover, you remain solely liable for all expenses and losses incurred by you as a result.

The Customer acknowledges and agrees that, in case its annual worldwide revenue exceeds one (1) million Euros, ConfigWise will have sole discretion to decide to limit its subscription plan to enterprise license only in relation to such Customer.

The Customer shall only request the Service in relation to the actual products it is (re)selling. In case of misuse of the Service, the Service Provider has the right to ban the Customer from its platform.

The Customer shall publish the 3D content created by ConfigWise on its website. Failure to publish the said content may result in suspension of the Service to the Customer, provided that the Service Provider notifies the Customer of its obligation to publish the 3D content, but the latter fails to perform the said obligation within seven (7) Business Days.

The Service provided by ConfigWise is performed in relation to one domain address (website) only and the use of the same 3D content for a second domain address will trigger another subscription.

The Customer grants ConfigWise and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store, and use any information recorded and/or stored in its account in connection with the operation of the Service.

7. Accepted Usage Policy

Your access and use of the Service is conditioned upon the following prohibitions. Accordingly you must not:

(a) copy or adapt the Service’s software code;

(b) modify, make derivative works, disassemble, reverse compile or reverse engineer any part of the website, or Services;

(c) distribute any software virus, worms, trap door, or any other harmful or disruptive code, mechanism or program intended to damage or alter a computer system or data;

(d) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service;

(e) sell the Service or any part thereof including but not limited to user accounts and access to them in exchange for anything of value;

(f) allow another person or entity to use your identity in order to access the Service, or

(g) violate any applicable law and regulations.

The use of our Services for any unlawful or illegal actions leads to the immediate termination of this Agreement in accordance with the relevant Section in this Agreement.

8. Fees and Payment Terms

The Customer will pay ConfigWise the then applicable Fees. The applicable Fees and Service plans can be found at the following URL: https://www.configwise.io/pricing . The Customer remains solely responsible for payment of the Value Added Tax (VAT) that may apply in your country.

Payment will be made by Customer in accordance with the Service Provider’s payment terms and, if applicable, those of any third party payment processor.

ConfigWise may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by us within fourteen (14) days after the date of issuance of the invoice. Unpaid amounts are subject to an interest charge of five percent (5%) per month.

The Customer understands and agrees that all fees and charges are payable in advance and are non-refundable and irrevocable, and the Service Provider never makes refunds for partially used subscription periods. Failing to pay the subscription Fee gives rise to the right for us to suspend your subscription until the time the subscription Fees are paid.

ConfigWise always reserves the right to change all applicable Fees and other charges that will apply for each new subscription period, without prior notice to you.

In case you decide to perform a credit card chargeback or attempt to reverse a payment in any other way, we may immediately terminate our Services and terminate your account with immediate effect.

9. Confidentiality

  1. keep confidential all Confidential Information;
  2. not disclose any Confidential Information to any other party;
  3. not use any Confidential Information for any purpose other than as contemplated by this Agreement;
  4. not make any copies of, record in any way or part with possession of any Confidential Information; and
  5. ensure that, as applicable, none of its directors, officers, employees, consultants, agents or advisers does any act which, if done by that Party, would be a breach of this provision.

Either Party may disclose any Confidential Information to:

  1. any Consultant engaged in the performance of the Service;
  2. any of their subcontractors, substitutes, or suppliers;
  3. any governmental or other authority or regulatory body; or
  4. any of the employees or officers of any aforementioned party.

Disclosure to any of the bodies listed above may only be made to the extent necessary for the purposes described in this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential.

Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.

The provisions of this clause shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

10. Intellectual Property Rights

All materials that are part of the Service are owned, controlled, or licensed by ConfigWise, unless otherwise is expressly provided in writing. The entire contents of the Service (including, but not limited to, all visual content, audio visual content, text, source code) (hereinafter the “Content”), and the arrangement, sequence, structure, and organization of the Service, are copyrighted under the applicable national and international laws and treaties. ConfigWise and ConfigWise logos are our trademarks, regardless of whether they are registered or not, and may not be used without our express written permission. You do not acquire any ownership rights by using the Service or downloading material from our Website. You acknowledge that you only have a limited right to use the Service during the Term of this Agreement.

Any violation of the intellectual property rights shall be sanctioned by the payment of a monetary penalty at least equal to the payment received by the the Service Provider during the last six (6) months of the existence of this Agreement, or up to five (5) times as much as what is cumulatively paid by the Customer to the Service provider during the existence of this Agreement, whichever is higher. The Service Provider will, however, be entitled to claim full damages compensation should the violation result in severe damages to the Service Provider.

We may use a special notice (ie. a watermark) visible in all the 3D models we develop in order to discourage the violation of IP rights we have in the created Content. This notice may not be subject to removal, unless we introduce a new subscription plan which gives you the right to remove the notice from 3D models created by us.

If you submit any essay or other works of authorship or comments, feedback, suggestions, ideas and other submissions to ConfigWise with respect to your use of or otherwise relating to the Service, whether in writing or orally (collectively, “Submissions”), you agree in consideration of your use of the Service that ConfigWise may use such Submission (including reproduce, distribute, perform and display), modify such Submission, and act on such Submission (by executing on an idea, practicing a process, making, offering and selling a product, or creating further ideas, processes or products from or incorporating your Suggestion), in each case without owing any royalty or otherwise accounting to you, and you agree to not assert any right you may have in such Suggestion against ConfigWise or any party ConfigWise authorizes to act on the foregoing rights or any successor-in-interest to ConfigWise. You agree such rights may be exercised or further authorized anywhere in the world and will survive any termination of your account(s), the Service, or this Agreement.

You represent and warrant that any Submissions are your original creations, that you have all rights to the Submissions, and that the Submissions do not infringe or violate the rights of any party, including without limitation any intellectual property rights or rights or privacy or publicity.

11. Disclaimers, Limitation and Waiver of Liability

OUR SERVICE MAY CONTAIN FAULTS, ERRORS OR INACCURACIES THAT COULD LEAD TO SYSTEM FAILURES OR THE LOSS OF DATA AND INFORMATION. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE RISK AS TO SATISFACTORY PERFORMANCE, ACCURACY AND OVERALL QUALITY OF THE SERVICE ALWAYS REMAIN WITH YOU. THE SERVICE IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, WITH ALL POSSIBLE ERRORS AND WITHOUT WARRANTY OF ANY KIND.

WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CONFIGWISE SOFTWARE AND THE SERVICE EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING AND WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, INCLUDING NON INFRINGEMENT OF THIRD PARTY RIGHT, OR COMPATIBLENESS WITH FUTURE WEB-BASED, MOBILE AND OTHER THIRD-PARTY PRODUCTS AND SERVICES.

YOU FULLY ACKNOWLEDGE AND AGREE THAT THE CONFIGWISE SOFTWARE AND THE SERVICE ARE NOT INTENDED OR SUITABLE FOR USE IN SURROUNDINGS WHERE INACCURACIES, ERRORS, OR DELAYS IN THE TRANSMISSION AND STORAGE OF DATA OR INFORMATION BY OR THROUGH THE CONFIGWISE SOFTWARE OR THE SERVICE, COULD LEAD TO DEATH, PERSONAL INJURY, OR FINANCIAL, PHYSICAL OR PROPERTY DAMAGE.

IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INVALID AND UNENFORCEABLE,

THE PARTIES INSTEAD AGREE THAT THE CONFIGWISE OR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, SERVICE PROVIDERS, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS, OR ANYONE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SERVICE WILL NOT BE HELD LIABLE TO YOU FOR MORE THAN THE GREATER OF THE AMOUNT YOU HAVE PAID CONFIGWISE IN THE SIXTY (60) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.

12. Indemnification

You agree to hold harmless the ConfigWise and its shareholders, officers, employees, service providers, and agents harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Service or that of any individual you provide access to use the Service, (ii) your breach or alleged breach, or that of any individual you provide access to use the Service, of any term, condition, obligation, representation or warranty in this Agreement, and/or (iii) your violation of applicable laws or regulations. You expressly agree that the provisions in this paragraph will survive any termination of this Agreement.

13. Privacy and Data Protection

At ConfigWise we care about the privacy of our Customers, and it is important for us to ensure that your privacy rights are protected. Information collected from you and any individual you provide access to use the Service is subject to our Privacy Policy. Please make sure to read our Privacy Policy in order to get more information about how we collect and use your personal information. You, by accepting this Agreement, agree to all of the terms of the Privacy Policy, which form an integral part of this Agreement.

14. Force Majeure

Neither the Service Provicer nor the Customer shall be liable for any failure or delay in performance of its responsibilities and obligations under the current Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God, earthquakes, fires, floods, wars, civil or military disturbances, acts of terrorism, sabotage, strikes, epidemics, riots, power failures, computer failure and any such circumstances beyond its reasonable control as may cause interruption, loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service, accidents, labor disputes, acts of civil or military authority, and governmental actions.

The affected Party, upon giving prompt notice to the other Party, shall be excused from the performance of the Agreement to the extent of such prevention, restriction, or interference (and the other Party shall likewise be excused from performance of its obligations until the delay, restriction or interference has ceased), provided however, that the Party so affected shall use diligent efforts to avoid or remove such causes of non-performance and both Parties shall proceed whenever such causes are removed or cease.

15. Governing Law and Jurisdiction

This Agreement and all aspects of the Service will be governed by and construed in accordance with the laws of the Netherlands, without regard to conflict of laws provisions, regardless of your location. The Dutch Civil Court in Rotterdam, the Netherlands shall hear any claim that may arise out of this Agreement.

16. Dispute Resolution

Subject to the provisions of this Agreement regarding applicable law and competent court, Parties agree not to commence any legal proceeding with respect to any dispute that may arise out of this Agreement. Parties agree to take the following steps in the event of a dispute, conflict or disagreement (“Dispute”).

  1. The Party who claims first there is a Dispute, will send the other Party a written notice setting out the nature of this dispute;
  2. The Parties will subsequently make an attempt to resolve the Dispute through direct negotiation among the Parties, or by persons who have been assigned to resolve the dispute by means of direct negotiations;
  3. If the Parties are unable to resolve the dispute within fourteen (14) Business Days from the day of receipt of the notice referred to in subparagraph 1, the Dispute will be submitted to an independent person or institution that will deliver a non-binding opinion regarding the dispute;
  4. If the Parties are unable to resolve the dispute within ten (10) Business Days after receiving the non-binding opinion as described in the preceding subparagraph 3, the Dispute will be submitted to mediation or another alternative dispute resolution procedure, excluding arbitration, agreed by the Parties.
  5. If the Parties are still unable to resolve the dispute within fourteen (14) Business Days after submitting the Dispute to an alternative dispute resolutions procedure, either Party may initiate legal proceedings before the court exclusively designated under this Agreement.

17. Use of Names for Marketing Purposes

Each Party may use the other Party's name and credentials in an appropriate and acceptable manner for standard marketing promotions, provided that such Party agrees to cease or alter such use at the other Party's request if such use is inconsistent with the other Party's branding policies, could cause market confusion, or is otherwise objectionable to such Party. Client listings, press releases, surveys, interviews, reputable business periodicals, television, and website presentation and promotion are examples of acceptable and customary marketing promotions. Separately, ConfigWise may request that the Customer enable one (or more) of the Customer's projects to be used for similar promotions as mentioned above. The Customer has the option to decline such use.

18. Termination

Unless there is an agreed term for termination of this Agreement, the Customer may terminate the Agreement by giving ConfigWise a 1-month prior written notice. The Customer may also terminate the Agreement if ConfigWise is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, ConfigWise has failed to remedy the breach within one (1) month of receipt of written notice from the Customer describing the breach and calling for it to be remedied.

ConfigWise may also terminate this Agreement by giving at least one (1) month written notice to the Customer or if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within one (1) month of receipt of written notice from ConfigWise describing the breach and calling for it to be remedied.

Furthermore, this Agreement, including the Service and all related rights and obligations will terminate with immediate effect when:

  1. You fail to accept any new terms;
  2. You violate or infringe upon the provisions in this Agreement and after we have become aware of such a breach and sent you a notice of breach, and you have not cured such breach within ten (10) Business Days thereafter;
  3. You fail to pay your subscription fees, or in case you becomes insolvent, file for bankruptcy or dissolve;
  4. You engage in any fraudulent, unlawful or misleading act(s) in relation to this Agreement, our Service, and any third-party involved.

19. Changes to Terms

We reserve the right to change, modify, add to, supplement or delete any of the terms of this Agreement at any time, at our sole discretion. We will provide you with notification of any material changes by email, website posting, pop-up screen or in-service notice. If any future changes to this agreement are unacceptable for you, then you must immediately stop using the Service. Your use of the Service following any revision to this agreement constitutes your acceptance of any and all such changes.

20. Final Provisions

The Customer acknowledges that it has entirely read the Agreement, understands its contents and understands that it is bound by the terms of this Agreement. The Customer also agrees that the Agreement is the complete and exclusive statement of the agreement between ConfigWise and the Customer which supersedes any proposal or prior agreement, whether oral or written, and any other communications between the Parties relating to the subject matter of the Agreement.

Any notice in connection with this Agreement must always be in writing. We shall be regarded to have given you notice when we send it to and deliver it to the email address you provided us. All notices to ConfigWise shall be deemed given when you send them to legal@configwise.io and we receive them. By sending a written notification to the above-mentioned email address, you may alter your email or postal address(es).

Both Parties, as well as their respective heirs, personal and legal representatives, affiliates, successors, and permitted assignee, will be bound by and benefit from this Agreement.

The headings used in this Agreement are included for benefit of the Parties and shall have no effect whatsoever on the terms or its interpretation or meaning.

The failure by either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach of the Agreement will not be deemed a waiver by that Party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches.

If any provision of this Agreement becomes invalid or unenforceable for any reason, including being rendered invalid by a court decision, the remaining parts of the Agreement will remain valid and enforceable.