SUPPLIER TERMS AND CONDITIONS
Whereas, NFINITE, INC. (“Service Provider”) offers a proprietary technology platform that ingests supplier (“Supplier”) provided 2D visuals and other inputs and uses 3D models to produce high quality visuals meeting specified brand guidelines and product imagery standards. Supplier products can also be showcased in custom lifestyle scenes, unique to retailers who carry Supplier’s products (“Retailer”), without incurring the costs associated with original production.NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree:
1. 1 Indemnity.
Service Provider will defend, indemnify and hold harmless Supplier against any final award of damages paid to unaffiliated third parties arising out of any claim that the Services, during the Term, infringe or violate any intellectual property right (“Claim”); provided that: (i) Supplier promptly notifies Service Provider in writing after Supplier’s receipt of notification of a potential Claim; (ii) Service Provider shall have the right to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Supplier provides Service Provider, at Service Provider’s request and expense, with the assistance, information and authority necessary to perform Service Provider’s obligations under this Section. Notwithstanding the foregoing, Service Provider shall have no liability for any Claim to the extent it is based on (i) Retailer or Supplier’s written specifications or direction, or (ii) Retailer or Supplier’s or any agent of Supplier’s modification of the Services. Supplier reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. If, due to a Claim, (i) the Services are held by a court of competent jurisdiction to be or are believed by Service Provider to infringe, or (ii) Supplier receives a valid court order enjoining Supplier from using the Services, Service Provider may at its expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Supplier a license to continue using the Services or (iii) terminate the applicable Supplier Order Form and its indemnity obligation for further activity by requesting that Supplier cease use of the offending Service and then refunding to Supplier the unused fees for those Services at issue hereunder. THE FOREGOING STATES THE ENTIRE LIABILITY OF SERVICE PROVIDER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR OTHERWISE, AND SUPPLIER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.
1.2 Supplier will defend, indemnify and hold harmless Service Provider its officers, directors, employees, subsidiaries, affiliates, successors and assigns from all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from, directly or indirectly, any unaffiliated third party claim related to (i) facts that, if true would constitute a breach of this Agreement by Supplier, (ii) Supplier’s or its users access to, use, misuse or illegal use of the Services or (iii) the Source Material’s violation or infringement of any intellectual property rights.
2. Limitation of Liability.
EXCEPT FOR A PARTY’S OBLIGATION AND LIABILITY TO INDEMNIFY AND DEFEND THE OTHER PARTY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATION UNDER SECTION 3, IN NO EVENT WILL EITHER PARTY, BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING ECONOMIC LOSS ARISING OUT OF OR RELATING TO THE RELATIONSHIP BETWEEN THE PARTIES AND/OR THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, BY FUNDAMENTAL BREACH OF CONTRACT OR THE BREACH OF A FUNDAMENTAL TERM OF ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LAW), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY AMOUNT GREATER THAN THE AMOUNT ACTUALLY PAID OR OWED TO SERVICE PROVIDER UNDER THE APPLICABLE ORDER DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE, LESS IN ALL CIRCUMSTANCES AMOUNTS PREVIOUSLY PAID IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT
3. Confidentiality.
Supplier and Service Provider acknowledge and agrees that the terms of the Agreement, as well as certain information made available to them, (“Recipient”) by the other party or the Suppliers, (“Discloser”) is confidential in nature. For the purposes of the Agreement, confidential information (“Confidential Information”) means information that: (i) is not generally known in the industry in which Discloser is engaged; (ii) is “personal information” under the Personal Information Protection and Electronic Documents Act (Canada), as amended from time to time, or such provincial legislation as is applicable; (iii) would logically be considered confidential and/or proprietary; (iv) would do Discloser harm if divulged; or (v) is marked “Confidential” or “Proprietary”, including all reporting documentation provided by the Service Provider in accordance with the Agreement. Recipient agrees: (i) to hold the Confidential Information in confidence by using the same degree of care to safeguard such Confidential Information as it uses to protect its own information of like character, but in no event less than a reasonable degree of care; (ii) to limit disclosure of the Confidential Information to its employees or agents that need to know the Confidential Information for the purposes of the Agreement; (iii) not to directly or indirectly disclose any Confidential Information to any third party unless and only to the extent required by law; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of the Agreement; (v) to not remove or obscure proprietary rights notices that appear on Confidential Information and copies thereof; and (vi) to advise Discloser to the extent legally permissible) promptly in writing of any unauthorized disclosure or use of Confidential Information. It is understood and agreed that monetary damages would not be a sufficient remedy for any breach of the Agreement by Recipient and that Discloser shall be entitled to specific performance or other equitable relief as a remedy for any such breach, which shall be in addition to all other remedies available at law or equity. Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Recipient in breach hereof; (ii) is or becomes available to Recipient on a nonconfidential basis from any source other than Discloser, which source is entitled to disclose such information without breach of any obligation of confidentiality known to Recipient (iii) was known to Recipient on a nonconfidential basis prior to its disclosure to Recipient by Discloser; or (iv) is independently developed by Recipient without the use of or reference to any Confidential Information.
4. Intellectual Property.
a. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:
3D Product Model” means a 3D model of a Product that captures its mathematical representation (or point cloud) based on the coordinates of its three-dimensional surface.
“3D Lifestyle Model” means a 3D or other model of a Lifestyle Scene that captures its mathematical representation (or point cloud) based on the coordinates of its three-dimensional surface.
“Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party. "Control," for purposes of this definition, means ownership or control, directly or indirectly, of more than fifty (50) percent of the voting interests of the subject entity.
“Deliverables” means Supplier Deliverables and Retailer Deliverables.
“Supplier Deliverables” means 3D Product Models and Product Visuals ordered by Suppliers and delivered to Suppliers by Service Provider.
“Intellectual Property Rights” means intellectual or industrial or proprietary rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; derivative works; and all other related rights including any other statutory provision or common law principle applicable to protecting intangible property, and any and all applications and registrations in any of the foregoing.
“Lifestyle Scene” means a visual representation of an environment such as, but not limited to, kitchens, living rooms, bedrooms, patios, and workplaces.
“Lifestyle Visuals” means the visuals produced by Service Provider using 3D Product Models and 3D Lifestyle Models that feature Products in Lifestyle Scenes.
“Nfinite Platform” means Service Provider’s proprietary technology platform that ingests Source Materials and uses 3D Product Models and 3D Lifestyle Models to produce Product Visuals and Lifestyle Visuals.
“Product” means the product designated in a Supplier Order Form that Supplier has chosen to use the Services to visually present to Retailer and Supplier’s customers.
“Product Visuals” means the visuals produced by Service Provider, using 3D Product Models as set out in the attached Schedule A.
“Source Materials” means 3D Models, and/or visuals, and/or other inputs provided by Retailer and/or Supplier, meeting Service Provider’s specifications, for use by Service Provider in developing 3D Product Models, 3D Lifestyle Models, Product Visuals, and Lifestyle Visuals.
“Supplier 3D Model(s)” means 3D Models provided to Service Provider as Source Materials pursuant to this Agreement.
“Custom Lifestyle Visuals” means a Lifestyle Visual that was produced by Supplier for Retailer using a Custom 3D Lifestyle Model.
“Custom 3D Lifestyle Model” means a 3D or other model of a Lifestyle Scene that captures its mathematical representation (or point cloud) based on the coordinates of its three-dimensional surface, and meets custom specifications provided by Retailer.
b. General. As between Retailer, Supplier and Service Provider, Supplier is and will be the exclusive owner of all of the following, including Intellectual Property Rights therein (collectively, the “Supplier Intellectual Property”):
(i) all Supplier Deliverables (or any portion of a Supplier Deliverable) authored, developed, conceived, or created for Supplier by Service Provider, either alone or in collaboration with third-party subcontractors (except as set forth in subsection (d) below);
(ii) all Supplier Source Materials; and
(iii) any and all enhancement, adaption, reduction, change, replacement, update, upgrade, revision, transformation or improvement, or derivative works (excluding Lifestyle Visuals provided to Retailer under the terms of this Agreement) to any of the Supplier Source Materials and Supplier Deliverables by Service Provider (“Modification”).
Service Provider shall not use Supplier Intellectual Property except to the extent needed to perform its obligations and exercise its rights under this Agreement. Service Provider shall use reasonable efforts to cause third parties to comply with, respect, and protect Supplier Intellectual Property. Service Provider shall notify Supplier immediately of any infringement of Supplier Intellectual Property.
c. Assignment of Rights. Service Provider hereby irrevocably assigns, and shall cause each of Service Provider’s directors, officers, employees, agents, consultants, invitees, subcontractors and representatives involved either directly or indirectly in the performance of the Service Provider’s obligations under this Agreement (each a “Service Provider Representative”) to irrevocably assign to Supplier, in each case, without additional consideration, all right, title and interest in and to the Supplier Intellectual Property, including all Intellectual Property Rights therein. Service Provider shall, and shall cause each Service Provider Representative to irrevocably waive, any and all moral rights or claims Service Provider or Service Provider Representative may now or hereafter have to moral rights or rights of droit moral with respect to the Supplier Intellectual Property in favor of Supplier, and its successors, assigns and licensees. Service Provider may not seek, and it must prohibit its employees and third-party subcontractors from seeking, Intellectual Property Rights protection for any Supplier Intellectual Property. Service Provider will not claim, and must prohibit its employees and third-party subcontractors from claiming, Intellectual Property Rights in any Supplier Intellectual Property. Service Provider and its Service Provider Representatives have no right to disclose or use Supplier Intellectual Property for any purpose whatsoever and must not divulge to or use Supplier Intellectual Property (or any portion or details of the Supplier Intellectual Property) for any third party except as set forth in this Agreement.
d. Service Provider Intellectual Property. Service Provider owns all Intellectual Property Rights in Service Provider’s preexisting proprietary information, Service Provider-owned materials, document templates, and software and project tools used by Service Provider to deliver the Services, including but not limited to the Nfinite Platform, 3D Lifestyle Models, Lifestyle Scenes, Custom 3D Lifestyle Models and Custom Lifestyle Visuals (collectively, “Service Provider Intellectual Property”). In addition to the license granted in subsection (e) below, if (i) Service Provider Intellectual Property is made part of the Deliverables , Service Provider grants to Retailer and the applicable Supplier a nonexclusive, worldwide, royalty-free, irrevocable, perpetual license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works of the Service Provider Intellectual Property incorporated in such Deliverables and authorize others to do any or all of the foregoing in connection with Retailer’s and Supplier’s use of the Deliverables.
e. License to Supporting Visuals. Subject to the terms of this Agreement, Service Provider grants to Supplier a worldwide, non-exclusive, non-transferable, royalty-free, irrevocable license for the duration of the copyright protection to host, copy, forward, use, reproduce, and display Product Visuals and Lifestyle Visuals delivered to Supplier by Service Provider under this Agreement for the purposes of promoting, advertising, and selling the Products.
f. License to Custom Lifestyle Visuals. Subject to the terms of this Agreement, Service Provider grants to Retailer and its Affiliates a worldwide, exclusive, non-transferable, royalty-free, irrevocable license for the duration of the copyright protection to host, copy, forward, use, reproduce, and display Custom Lifestyle Visuals for the purposes of promoting, advertising, and selling the Products.
g. Subject to all terms and conditions of this Agreement, Service Provider hereby grants to Supplier the right to access and use the Nfinite Platform during the Term as expressly agreed in applicable Order(s) and strictly limited to Supplier’s lawful business purposes. Subject to the terms of this Agreement, Service Provider grants to Supplier and Supplier accepts from Service Provider a limited, revocable, non-exclusive, non-transferable limited license and right to use and access the Nfinite Platform, during the Term, in strict accordance with this Agreement and written guides and guidelines that describe the Nfinite Platform, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Supplier (“Documentation”).
h. Supplier grants to Service Provider a worldwide, non-exclusive, non-transferable, royalty-free, irrevocable license for the duration of the copyright protection to host, publish, reproduce, edit, create derivative works, and sublicense the Supplier Deliverables to Retailers for the purposes of promoting, advertising, and selling the Products.
5. Supplier grants to Service Provider
A non-exclusive, non-transferable, worldwide, commercial, perpetual, irrevocable, royalty-free license to use de-identified data from Supplier’s use of the Service to: (i) provide and maintain Services; (ii) improve or offer new Services; (iii) measure performance of Services; or (iv) for any other lawful business purpose. For clarity, de-identified data, which may include metadata or aggregated data, used by Service Provider under this Section will never identify Supplier. To the extent that Supplier provides any suggestions, enhancement request, correction, ideas or other feedback regarding the Services (“Feedback”), Supplier grants Service Provider a non-exclusive, worldwide, irrevocable, royalty-free license to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of Services.
6. Restrictions of Use for Service Provider Services.
a. Except as otherwise set forth in this Agreement, Supplier agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Services, expand the rights of access or use beyond the rights granted by Service provider, or make the Services available to any third party via sublicense, rent service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Services or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Services; (iii) disclose or publish, without Service Provider’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Services; (iv) use the Services to develop a competitive product offering promote or support any product or service that is competitive with the Services; (v) attempt to gain unauthorized access to the Services, including access to other Service Provider customer’s data; (vi) remove any identification, patent, trademark, copyright, or other notice from the Services; (vii) interfere with or disrupt the integrity or performance of the Services, or unreasonably burden the infrastructure utilized by Service Provider to deliver the Services; (viii) use the Services in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; or (ix) use, reproduce, distribute, or permit others to use, reproduce, or distribute any harmful code.
b. To the extent that Supplier has been granted any right or license to use Deliverables, Supplier shall strictly comply with any such rights or licenses.
c. Supplier is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of any technology outside of the Services, including but not limited to, the Supplier’s websites, applications, or other technology that may be used to interface with the Service.
d. Supplier shall comply with all applicable laws in the performance of its obligations hereunder and shall promptly notify Service Provider if it reasonably believes that any use of the Services (i) violates law or the terms of this Agreement, or (ii) if Supplier becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords in connection with the use of the Nfinite Platform, or any other breach or suspected breach of security related to the Services.
7. Entire Agreement; Governing Law; Counterparts.
The provisions contained in the Agreement constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior negotiations, representations, conversations or agreements relating thereto, whether oral or written. Any pre-printed terms and conditions on a Supplier purchase order or similar document shall be of no force and effect, even if signed by both parties. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.