3D QUOTER SERVICES AGREEMENT

Standard Terms and Conditions

Background:  The Company owns and operates 3D Quoter (the “Hosted Services”) which facilitates data processing, request handling, and ordering management for additive manufacturing services.  The Hosted Services comprise a software platform made available to clients as a service via the internet (“Software as a Service” or SaaS”) which comprises an automated workflow program that hosts (on a shared or dedicated basis) and configures data with a view to optimizing the manufacturing process and is made available on the terms of this Agreement.   

Definitions relevant to this Agreement:

1.   “Commercial Order” shall refer to any order made by an End User on the
   Hosted Platform.
2.     “End Users” refers to customers of the Client who are granted access to
   the Hosted Services by the Client.
3.     “Assisted Proposals” services proposals dispatched through the Hosted
   Platform and identified as such
4.     “Third Party Payment Charges“ shall refer to all
   charges incurred from the Client’s use of the Hosted Services that are not
   directly payable to the Company. This shall include (but is not limited to)
   credit card fees and PayPal processing costs.

IT IS AGREED as follows:

1. The Hosted Services

The Company will make the Hosted Services available to the Client provided the Client fulfills its responsibilities in this agreement.

2. Client Responsibilities

The Client agrees:

1. to use the Hosted Services only for its own business purposes,
2. not to use the Hosted Services in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity, including violating or tampering with the security of the Hosted Services,
3. to be responsible for the security and proper use of all passwords for access to the Hosted Services; take all necessary steps to ensure that all passwords are kept confidential, secure, and used properly; be responsible for the acts and omissions of each and every user it authorizes to use the Hosted Services and the Company shall have no liability in respect of such,
4. to  ensure prompt payment for the service provided hereunder by the Company,
5. to be responsible for ensuring that all of its data entered using the Hosted Services is at all times accurate, complete, and up to date,
6. not to resell the Hosted Services or the services provided by Company hereunder. 

3. Term

Signature of this Agreement constitutes an application (“Application”) for an Account and the Agreement between us shall commence one (1) day after the Application is made (“Effective Date”) unless the Client receives an email from the Company indicating that the Application has not been accepted. The contract commitment is 1-month. The Agreement shall continue after that until terminated in accordance with Clause 11. 

4. Hosted Services

4.1   The Company shall ensure that the Hosted Services will, on the Effective Date, implement their account generation process which may take up to 7 days to generate an account for the Client (“Account”) at which point the Client will be provided with login details for that Account.

4.2   The Company hereby grants to the Client a worldwide, non-exclusive license to use the Hosted Services by means of a supported web browser during the Term.

4.3   The license granted by the Company to the Client under Clause 4.2 is subject to the Hosted Services only being used by the officers and employees or consultants, of the Client and End Users.

4.4   Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Company to the Client under Clause 4.2 is subject to the following prohibitions:

1. the Client must not sub-license its right to access and use the Hosted Services;
2. the Client must not permit any unauthorized person to access or use the Hosted Services;
3. the Client must not use the Hosted Services to provide services to third parties other than End Users; and
4. the Client must not republish or redistribute any content or material from the Hosted Services.

4.5   The Company shall use reasonable endeavors to meet the service level targets set out in Part C of the Schedule.

4.6   For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

1. a Force Majeure Event;
2. a fault or failure of the internet or any public telecommunications network;
3. a fault or failure of the Client’s computer systems or networks;
4. any breach by the Client of this Agreement; or
5. scheduled maintenance carried out in accordance with this Agreement.

4.7   The Client must comply with Paragraph 2 (Client Responsibilities) and must ensure that all persons using the Hosted Services with the authority of the Client comply with Paragraph 2.

4.8       The Client must not use the Hosted Services in any way that causes or may cause, damage to the Hosted Services or Hosted Services or impairment of the availability or accessibility of the Hosted Services.

4.9   The Company may suspend the provision of the Hosted Services if any amount due to be paid by the Client to the Company under this Agreement is overdue, and the Company has given to the Client at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

5. Technical Support

5.1         Support will consist of email communication. The levels of support will depend on the pricing tier selected by the Client and these support levels are subject to alteration at any time at the discretion of the Company on the giving of prior notice in writing.

5.2         Support will not include (a) set-up, installation, or configuration of hardware and software required for the Client to access the Hosted Services; or (b) consultation, error correction, or research with respect to the Client’s Clients and information.  Contact details for access to Company’s technical support personnel (‘Technical Support’) can be found at this link.

6. Client Data

6.1     The Client hereby grants to the Company a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, and translate data from the Client and End Users which includes but is not limited to engineering and design files) (the “Client Data”) to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under this Agreement. The Client also grants a non-exclusive, revocable license to the Company to use its name and logo solely for pre-approved marketing purposes in accordance with usage instructions given to the Company by the Client.

6.2     The Client warrants to the Company that the use of the Client Data by the Company in accordance with this Agreement will not:

1. breach the provisions of any law, statute, or regulation; or
2. infringe the Intellectual Property Rights or other legal rights of any person.

In each case in any jurisdiction and under any applicable law and the Client hereby indemnifies the Company for any costs claims damages or expenses (including legal expenses) awarded against or incurred by the Company as a result of any breach of this Clause 6.

6.4     The Company shall use all reasonable endeavors to restore to the Hosted Services the Client Data stored in any backup copy created and stored by the Company. The Client acknowledges that this process will overwrite the Client Data stored on the Hosted Services prior to the restoration.

7. Fees, Billing, and Payment

7.1     In consideration for the use of the Hosted Services, the Client agrees to pay the fees and costs at the times and in the amounts identified in the checkout process. These fees are subject to change at the discretion of the Company subject to Clause 11(a).

7.2     The Company shall have no liability to reimburse the Client for bank or transaction fees incurred by the Bank in the payment of amounts due to the Company or for any other reason whatsoever.

8. Data Protection

Please see the separate “PERSONAL DATA PROCESSING AGREEMENT” at the end of this contract.

9. Warranties

9.1   The Company warrants to the Client that:

1. the Company has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
2. the Company will comply with all applicable legal and regulatory requirements applying to the exercise of the Company’s rights and the fulfillment of the Company’s obligations under this Agreement; and
3. the Company has or has access to all necessary know-how, expertise, and experience to perform its obligations under this Agreement.

9.2   The Company warrants to the Client that:

1. the Hosted Services and Hosted Services will conform in all material respects with the Hosted Services Specification; and
2. the Hosted Services will incorporate security features reflecting the requirements of good industry practice.

9.3   The Company warrants to the Client that the Hosted Services, when used by the Client in accordance with this Agreement, will not breach any laws, statutes, or regulations applicable under Estonian law.

9.4   If the Company reasonably determines, or any third party alleges, that the use of the Hosted Services by the Client in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Company may

1. modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
2. terminate this Agreement.

9.5   The Client warrants to the Company that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

9.6   All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

10. Termination

This agreement may be terminated:

1. by the Client or the Company: (i) immediately on written notice served at any time during the first thirty (30) days of commencement of the Licence (subject to payment of the fee for the first month of the Licence if an onboarding fee has not been paid) ; (ii) with thirty (30) days written notice served at any time after the expiry of one (1) months from commencement of the Licence (Minimum 1-month commitment clause); or (iii) with thirty (30) days notice following receipt by the Client of a notice in writing from the Company increasing the Fees in excess of 10% (other than pre-agreed increments) or of the rolling 12-month inflation average for the country in which the client is based, whichever is higher.
2. by the Company at any time with immediate effect if the Client breaches the terms and conditions of this Agreement, including if the Company has reasonable grounds to believe that the Client is utilizing the Hosted Services for any illegal or disruptive purpose in which case the Company may terminate or suspend all services provided hereunder immediately with or without notice to Client;
3. by signed written agreement by the Parties; and
4. by either party, if the other becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors.

Any notice of termination served by the Client under this Clause 10  must be sent to support@quoter.ai

11. Confidentiality

Neither the Company nor the Client shall during the Term or thereafter use or disclose to any person, firm, or company any confidential information it receives from the other except where such disclosure is necessary for the implementation of this Agreement, and in the event of such disclosure the party receiving the information shall restrict such disclosure to only those individuals as need to know the same to discharge its obligations and shall ensure, prior to such disclosure, that the individual is subject to obligations of confidentiality corresponding to those which bind the party receiving the information. These obligations shall not apply to confidential information which has already entered the public domain otherwise than through an unauthorized disclosure or where written consent to the disclosure has been provided by the party disclosing the information. This clause shall survive termination of this Agreement.

12. Limitation of Liability

12.1   The Client acknowledges that complex software such as the Hosted Services is never wholly free from defects, errors, and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services (including upgrades) will be wholly free from defects, errors, and bugs ;

12.2       The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services (including upgrades) will be entirely secure or that they will be free from viruses, worms, Trojan horses, ransomware, spyware, adware, and other malicious software programs.

12.3   The Client acknowledges that the Hosted Services and upgrades are designed to be compatible only with that software and those systems, and the Company does not warrant or represent that they will be compatible with any other software or systems.

13. Limitations and exclusions of liability

13.1   Nothing in this Agreement will:

1. limit or exclude any liability for death or personal injury resulting from negligence;
2. limit or exclude any liability for fraud or fraudulent misrepresentation;
3. limit any liabilities in any way that is not permitted under applicable law; or
4. exclude any liabilities that may not be excluded under applicable law.

13.2   The limitations and exclusions of liability set out in this Clause 13 and elsewhere in this Agreement:

1. are subject to Clause 13.1; and
2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

13.3   Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

13.4   Neither party shall be liable to the other party for any loss of profits or anticipated savings.

13.5   Neither party shall be liable to the other party for any loss of revenue or income.

13.6   Neither party shall be liable to the other party for any loss of use or production.

13.7   Neither party shall be liable to the other party for any loss of business, contracts, or opportunities.

13.8   Neither party shall be liable to the other party for any loss or corruption of any data, database, or software;

13.9   Neither party shall be liable to the other party for any special, indirect, or consequential loss or damage.

13.10     The Hosted Services incorporate the facility to re-configure Client Data and/or suggest alterations to the design or manufacturing process. THE CLIENT CONFIRMS THAT IT WILL NOT MANUFACTURE ITEMS OR MAKE CHANGES TO ITS MANUFACTURING PROCESS AS A RESULT OF THE USE OF THE HOSTED SERVICES WITHOUT FULLY SATISFYING ITSELF AS TO THE EFFICACY OF ANY SUCH CHANGES. THE LIMITATIONS OF LIABILITY IN THIS CLAUSE 14 ARE UNDERSTOOD AND ACCEPTED IN THIS CONTEXT. THE CLIENT SHALL ENSURE THAT ITS END USERS ARE AWARE OF THESE LIMITATIONS AND ACCEPT THEM

13.11     The liability of the Company to the Client for any event or series of related events shall not exceed EUR 10,000.

14. Notices

Any notice (other than a notice of termination served by the Client under Clause 10) required to be given under this Agreement shall be in writing and shall be delivered by email. 

15. Indemnity

The Client shall indemnify and shall keep the Company indemnified from and against all losses, damages, costs, or expenses incurred by the Company arising out of or in connection with any third-party claim, which would not have arisen but for a breach by the Client of this Agreement.

16. Third-Party Rights

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

17. Force Majeure

No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to power, telecommunications, electrical, internet, and communication line failure; strikes; civil unrest; fire, flood, storms, earthquakes; acts of terrorism; acts of war; and governmental action.

18. Amendment Waiver

This Agreement may only be amended in writing and signed by an authorized representative of each party.  No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach or any other provision.

19. Relationship of the Parties

Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency, or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

20. Assignment

The Client may not assign its rights or obligations under this Agreement.

21. Severance

In the event that any provision of this Agreement is found to be unlawful, invalid, or otherwise unenforceable, that provision shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

22. Law and Jurisdiction

Where the Client is an entity incorporated or domiciled in the United States, Mexico, or Canada this Agreement shall be governed by, and construed in accordance with, the laws of the State of [Delaware] in the United States, and any dispute, controversy, proceedings or claim between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of Delaware. In all other cases, this Agreement shall be governed by, and construed in accordance with, the laws of Estonia, and any dispute, controversy, proceedings, or claim between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of Estonia.

PERSONAL DATA PROCESSING AGREEMENT

1. Introduction

This personal data processing agreement (”Annex”) is incorporated within the 3D Quoter Services Agreement signed between ZM Artworld OÜ (”Provider”) and (”Customer”) for the provision of 3D Quoter (the “Hosted Services”) and related services (”Agreement”).

The Hosted Services comprise a software platform made available to clients as a service via the internet (“Software as a Service” or SaaS”) which comprises an automated workflow program that hosts (on a shared or dedicated basis) and configures data with a view to optimizing the manufacturing process and is made available on the terms of this Agreement.

The purpose of this Annex is to ensure an adequate level of privacy and data protection of the personal data of the Customer that the Provider processes. This Annex defines the principles and terms of data protection and data security, that the Provider commits to abide by when providing the Customer with services.

This Annex is a written agreement between the parties on the processing of personal data as required by the General Data Protection Regulation of the European Union (“GDPR”).

2. Definitions

In accordance with the GDP, the terms below are defined as follows:

“controller” shall mean the Customer, who shall define the purposes and methods of personal data processing.

“processor” shall mean the Provider, who shall process personal data on behalf of the controller based on the Agreement.

“Processing” shall mean any operation or set of operations which is performed on personal data or sets of personal data using automated means or manually, such as data collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“personal data” shall mean any information relating to an identified or identifiable natural person, hereafter “data subject”; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“personal data breach” shall mean means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.

3. Relation to the Agreement

Terms of this Annex shall supersede any conflicting terms in the Agreement in relation to the processing of personal data.

The service term (i.e. duration of the processing), the nature and purpose of the processing, the type of personal data and categories of data subjects, and the Customer´s instructions shall be defined in the Agreement. In addition, the parties have agreed on the following:

This Annex expires in relation to the Agreement when the processing of personal data under the Agreement and this Annex has been finally completed.

4. The general obligations of the Provider regarding privacy and data protection

The Provider shall prepare and maintain proper documents reflecting risk management processes and plans of action relating to data storage and processing.

The Provider shall have sufficient expertise and resources to fulfill the privacy and data protection measures defined herein. The Provider shall, if necessary, cooperate with the Customer’s personnel in charge of privacy and data protection.

5. Data protection and processing personal data

5.1 Obligations of the Provider and the Customer

The Provider processes the personal data of the Customer on the Customer’s behalf. The Customer shall be the controller and the Provider shall be the processor of the data processed in the service. The parties undertake to abide by the applicable legislation, decrees, and authority orders and guidelines concerning personal data processing.

As the controller, the Customer shall be liable for ensuring that it has the necessary rights and that it has obtained the necessary consents (if any) for the processing of personal data. The Customer shall be liable for drafting the necessary privacy policy and providing relevant information to data subjects.

The Provider is entitled to process the personal and other data of the Customer only pursuant to the Agreement, this Annex, and the written guidance of the Customer and only in so far as it is necessary for providing the service.

The Provider shall be liable for all obligations, actions, and claims (including reasonable attorney’s fees) to the Customer, its management, staff, personnel, or its contracting parties that result from the Provider processing the personal or other data of the Customer in conflict with legislation, this Annex or the written guidance of the Customer.

5.2 Subcontractors

The Provider may not use subcontractors in processing the personal data of the Customer without the general written or subcontractor-specific prior approval of the Customer. Additionally, the Provider shall inform the Customer of all of its subcontractors and changes thereof. The Customer may, on reasonable grounds, deny the use of new subcontractors.

With the signature of this Annex, the Customer hereby approves the subcontractors of the Provider listed in Section 3 above.

The Provider shall make a written agreement with all of its subcontractors (also the ones listed in Section 3) and is liable that the subcontractors abide by the terms of this Annex. The Provider is liable to regularly supervise the actions of its subcontractors and is liable for the actions of its subcontractors as for its own.

5.3 Processing outside of the United States

The data of the Customer may not be stored, moved, disclosed, altered, used, or otherwise processed in real-time, in an archive, in backups, or in other forms in a country outside the United States, without the prior written approval of the Customer. The Parties shall agree in writing to all transfers or processing of personal data outside of the United States.

5.4 Data subject requests in relation to personal data

The Provider shall immediately forward all requests to inspect, rectify, erase, or deny the processing of data or other requests received from the data subjects, to the Customer. If requested by the Customer, the Provider shall support the Customer in fulfilling the requests of the data subjects.

The Provider shall forward all inquiries received from data protection authorities directly to the Customer and shall await further guidance from the Customer. Unless otherwise agreed, the Provider is not authorized to represent the Customer or act on behalf of the Customer in relation to such requests.

5.5 Auditing

The Provider shall show if requested, that it and its subcontractors abide by the terms of this Annex. Upon 14 days prior written notice, the Customer or an auditor authorized by the Customer (however not a competitor of the Provider) may annually undertake an inspection to ensure that the Provider and its subcontractors are processing Customer data in accordance with this Annex. The Provider shall rectify any identified defects and shortcomings without delay. Save as set out below, the parties shall each bear their respective costs incurred in connection with the audit. If the inspection shows that the Provider has acted in conflict with this Annex in an essential way, the Provider shall compensate the Customer for the costs of the inspection and the third-party costs incurred from the inspection and from inspecting the rectifications, all as invoiced by the auditor.

6. Data security

The Provider shall be liable to implement the appropriate technical and organizational security measures required by legislation in order to protect the personal data it processes. The available technical options, the special risks concerning the data processing in question, and the sensitivity of the personal data shall be taken into account. E.g. the following rules shall be followed when processing:

• The personnel taking part in the processing of the data of the Provider and the Provider’s subcontractors (and their personnel processing the data) must commit to non-disclosure obligations regarding the data.
• The systems and communications used in processing the data of the Customer shall be protected by adequate and up-to-date data protection solutions in accordance with the best available practices of the industry.
• The personal data shall not be used in the development or testing of the Provider’s services nor for any other purposes of the Provider.

The Provider shall be liable for the backing up of the data of the Customer unless otherwise agreed.

7. Data breaches

The Provider shall inform the Customer without delay of data security breaches, such as data breaches, accidental or illegal destruction of data, deletion, alteration, or unauthorized disclosure or access to the data. The notification shall describe, when possible, what has occurred, whose data and what data the breach concerns, and the estimated amounts.

The Provider shall without delay inspect the cause and effects of the breach and carry out the appropriate measures to end the breach, minimize the effects, and prevent comparable breaches. The Provider shall without delay document and report the results of the inspection, and the measures carried out, to the Customer.

The Provider shall cooperate with the Customer and ensure that the Customer has the documentation required by legislation and the data protection authorities at hand concerning data security breaches.

The party whose actions have caused the data breach and who, according to applicable data protection legislation is liable for a data breach, shall be liable for the costs incurred from the breach and the rectification thereof, taking into account the order or decision of a competent authority or a court of law.

8. Other provisions

After the expiry of the Agreement, the Provider shall return and/or delete the personal data according to the guidelines given by the Customer. If the Customer has not given the Provider guidance within one month of the expiry of the Agreement, the Provider shall inquire the Customer for guidance in writing concerning the deletion and return of personal data and shall store the data of the Customer for six months. The Provider shall support the Customer in the extent requested by the Customer in transferring the data of the Customer. Afterward, the Provider shall take care of the destruction of the data in its or its subcontractor's control and shall confirm the destruction thereof to the Customer in writing.

The Provider is obligated to inform the Customer of all changes that may affect its ability or chances to abide by this Annex and the written guidance of the Customer.

The Parties shall agree on addition and amendments to this Annex in writing.