REscan Terms and Conditions
Last Updated June 15, 2018
These REscan Terms and Conditions ("Terms") are binding between REscan, Inc. ("REscan", "we", or "us") and you or the entity that you represent (collectively, "you"). These Terms govern your access and use of the REscan application ("App") in relation to 3D models that are stored in, and remotely accessible from, the REscan service ("REscan Service"). The App is licensed, not sold to you.
1. App and REscan Service.
(a) App License. Subject to the terms and conditions of these Terms, REscan grants you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to download, install, execute, and use the App with the REscan Service in relation to three dimensional models ("Models") to the extent permitted by the version of the App that you are running, and only on a mobile device that is capable of running the App and that you own or control;
(b) REscan Service. In order to access and use the App you must create and register a user account ("Account"). By registering an Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not: (a) create an Account using a false identity or information; or (b) create an Account or use the App or REscan Service if you have been previously removed or banned by us from use of the App or REscan Service. We reserve the right to deactivate your Account or terminate these Terms, at our sole discretion, at any time and with or without notice or liability to you, if you violate these Terms. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your user account. You are solely responsible for any activity originating from your user account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your user account.
2. License Restrictions. You shall not, directly or indirectly, in whole or in part:
(a) copy the App, except for downloading the App from an authorized distribution channel onto your mobile device and execute the App as authorized under the license granted in Section 1(a);
(b) modify, or create derivative works based upon, the App (or any component thereof, including without limitation associated technology) any REscan Technology, as defined in Section 5, or any Models;
(c) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App;
(d) cause or permit any reverse engineering or decompilation of any Model (or any component thereof, including without limitation any REscan Technology embodied in such Model);
(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App or REscan Service, including any copy thereof;
(f) rent, lease, sell, lend, sublicense, distribute, disclose, publish, assign or otherwise transfer your Account, the App, any rights in the App, or any features or functionality of the App, to any third party for any reason, including making the App available on a network that is capable of being accessed by more than one device at any time without REscan's prior written consent;
(g) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the App, Models, or REscan Service or adversely affects REscan's right, title or interest in or to the App, Models, REscan Service, or REscan Technology;
(h) use any robot, spider, or other automatic device, process, or means to access the App, Models, or REscan Service for any purpose, including monitoring or copying any of the material on or through the App;
(i) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the App, Models, or REscan Service or any server, computer, or database connected to the App or REscan Service; or
(j) otherwise attempt to interfere with the proper working of the App, Models, or REscan Service.
3. Prohibited Uses. You may only use the App and REscan Service for lawful purposes and in accordance with these Terms. You agree to not use the App or REscan Service to:
(a) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
(b) promote any illegal activity, or advocate, promote, or assist any unlawful act;
(c) give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
(d) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
(e) use any manual process to monitor or copy any of the material on the App or REscan Service or for any other unauthorized purpose without our prior written consent;
(f) use any device, software, or routine that interferes with the proper working of the App or REscan Service;
(g) use any robot, spider, or other automatic device, process, or means to access the App or REscan Service for any purpose, including monitoring or copying any of the material on the App or REscan Service;
(h) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the App or REscan Service, the server on which the REscan Service is stored, or any server, computer, or database connected to the App or REscan Service;
(j) attack the REscan Service via a denial-of-service attack or a distributed denial-of-service attack; and
(k) otherwise attempt to interfere with the proper working of the App or REscan Service.
4. Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under these Terms, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all of the terms, conditions, and restrictions, under these Terms. REscan and its licensors and service providers reserve, and shall retain, their entire right, title, and interest in and to the App, Models, REscan Service, and REscan Technology including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in Section 1(a) of these Terms.
5. REscan Technology. You acknowledge and agree that the software code underlying the App, Models, and REscan Service is REscan's confidential and proprietary information. At all times, REscan and its licensors will retain ownership of all proprietary rights and confidential information in and to the App, REscan Services and any intellectual property of REscan embodied in the Models (the "REscan Technology"), and any copies thereof, including any copyright, patent, trade secret, trademark or other intellectual property rights therein, look and feel thereof, and any derivatives of the foregoing. REscan and its licensors reserve all rights that are not specifically granted to you hereunder.
6. Rights to Models. You acknowledge and agree that REscan will own all right, title, and interest in and to all Models that are conceived, written or created by REscan or their service providers. You do not acquire any ownership interest in such Models, or any other rights thereto other than to view, measure, and share viewpoints of such Models via email or text message in accordance with the license granted in Section 1(a), and subject to all terms, conditions, and restrictions, under these Terms.
7. Updates. REscan may from time to time in its sole discretion develop and provide App, Models, or REscan Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that REscan has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of these Terms.
8. Reliance on App, Models, or REscan Service Information. The information presented (including measurements) on or through the App, Models, or REscan Service is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you or any other user, or by anyone who may be informed of any of its contents.
10. Feedback. If you provide any suggestions, ideas, feedback, or recommendations to us regarding the App, Models, or REscan Service (collectively, "Feedback") then we may use such Feedback for any purpose, provided we will not associate such Feedback with you. So that we may incorporate Feedback into our products and services, you hereby grant REscan, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in and to the Feedback for any purpose and you hereby irrevocably and unconditionally grant such Feedback and all such rights to us free of charge. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in the Feedback.
11. Term and Termination. The term of these Terms commences when you download the App and will continue in effect until terminated by you or REscan as set forth in this Section. You may terminate these Terms by discontinuing use of, and deleting the App and all copies thereof. REscan may terminate these Terms at any time with or without notice. In addition, these Terms will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Terms. Termination will not limit any of REscan's rights or remedies at law or in equity. Upon termination: (i) all rights granted to you under these Terms will also terminate; and (ii) you must cease all use of the App, Models, or REscan Service and delete all copies of the App. Sections 2, 4, 5, 8, 10, 12, 14, 15, 17, and 19 shall survive the termination of these Terms.
12. Third Party Claims and Indemnification. You agree to indemnify, defend, and hold harmless REscan and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to: (a) your use or misuse of the App, Models, or REscan Service; or (b) your breach of these Terms. REscan reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without REscan's prior written consent.
13. US Government Rights. The App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
14. Limitation of Liability.
(a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RESCAN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY ARISING FROM OR RELATED TO THE APP, THE MODELS, RESCAN SERVICE OR RESCAN TECHNOLOGY OR YOUR USE OF OR INABILITY TO USE THE APP, THE MODELS, RESCAN SERVICE OR RESCAN TECHNOLOGY FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF RESCAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF RESCAN ARISING FROM OR RELATED TO THESE TERMS AND THE APP, THE MODELS, RESCAN SERVICE AND RESCAN TECHNOLOGY, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED $50. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
(c) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL RESCAN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY OF ANY NATURE FOR ANY HARM THAT IS BASED ON OR ARISES OUT OF THE INACCURACY OF ANY MEASUREMENTS TAKEN THROUGH THE APP, OR RELIANCE ON THE ACCURACY OF ANY SUCH MEASUREMENTS. IN ADDITION, IN NO EVENT WILL RESCAN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY THIRD-PARTY USE OR MODEL VIEWPOINT THAT YOU SHARE.
(d) YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE ESSENTIAL ELEMENTS OF THE BARGAIN AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE FINANCIAL AND OTHER TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
15. Warranty Disclaimer. THE APP, THE MODELS, RESCAN SERVICE AND RESCAN TECHNOLOGY IS PROVIDED "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RESCAN, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THESE TERMS AND THE APP, THE MODELS, RESCAN SERVICE AND RESCAN TECHNOLOGY INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, RESCAN PROVIDES NO WARRANTY, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP, THE MODELS, RESCAN SERVICE AND RESCAN TECHNOLOGY WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, THAT THE APP, THE MODELS, RESCAN SERVICE AND RESCAN TECHNOLOGY WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS. RESCAN MAKES NO WARRANTY OR GUARANTEE WHATSOEVER REGARDING THE ACCURACY OF ANY MEASUREMENTS TAKEN THROUGH THE USE OF THE APP. YOU ACKNOWLEDGE THAT RESCAN'S LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS UNDER THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16. Export Regulation. The App may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the US.
17. Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to these Terms or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Redwood City, San Mateo County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18. Severability. If any provision of these Terms are illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect.
19. Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or the App, the Models, REscan Service and REscan Technology, must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
20. Miscellaneous. You may not assign or otherwise transfer any of your rights hereunder without REscan's prior written consent, and any such attempt is void. These Terms may be assigned or transferred by REscan without restriction. These Terms are binding upon and is for the benefit of the respective successors and permitted assigns of the parties hereto. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. You agree that these Terms will not be construed against REscan by virtue of having drafted the Terms. As used in these Terms, the word "including" means "including but not limited to". Any failure by REscan to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The parties acknowledge and agree that a material breach of these Terms adversely affecting REscan's proprietary rights would cause irreparable harm to REscan for which a remedy at law would be inadequate and that REscan shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. These Terms are the complete agreement between REscan and you concerning your use of the App, the Models, REscan Service and REscan Technology, and supersedes any and all prior agreements and representations between REscan and you related to the same subject matter. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (a) if to REscan, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to 541 Jefferson Ave, Ste 100, Redwood City, CA-94063; or (b) if to you, by in-App notification, email, or by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier to your mailing address set forth in.
21. Contact. If you have any questions regarding the App, the Models, REscan Service and REscan Technology or these Terms, please contact us at firstname.lastname@example.org .