Twinstant Terms of Sale

Twindom Twinstant 3D Scanner Terms of Sale

This Twindom Twinstant 3D Scanner Terms of Sale (the “Agreement”) is made between the customer (“Customer”) and Machinables, Inc., a Delaware corporation (“Company”) and governs the sale and use of the Twinstant Full-Body 3D Scanning System (“Appliance”) and embedded control software as defined below. To generate 3D models from images the Customer produces with the Twinstant Full-Body 3D Scanning System, the Customer must also subscribe to the Twindom Platform, which is subject to periodic subscription and processing fees. Use of the Twindom Platform is subject to the Twindom Platform Subscription Agreement. Please read the Twindom Platform Subscription Agreement carefully at http://twindom.com. Future software (as defined below) updates may be governed by their own agreement, which you must agree to prior to receiving the updates.

BY CLICKING “I AGREE” IN CONNECTION WITH THESE TERMS OF SALE, BY ELECTRONICALLY OR MANUALLY SIGNING THESE TERMS OF SALE, AND/OR BY ACCEPTING DELIVERY OF THE APPLIANCE, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS OF SALE.

The Twindom Twinstant 3D Scanner Terms of Sale are as defined below.

Definitions. Capitalized terms not defined in context shall have the meanings assigned to them below:
1. “Appliance” means Company’s Twinstant Full-Body 3D Scanning System. “Products” means the Software and Appliance provided to Customer under this Agreement.
2. “Software” means computer programs, including firmware and computer programs embedded in the Appliance, third party software, the object code version of the software that is provided or made available to Customer as well as any corrections, enhancements, and upgrades to such software that are made available to Customer pursuant to this Agreement, and all copies of the foregoing.
Appliance Sale. Subject to the terms of this Agreement, Company sells to Customer, and Customer purchases from Company, that number of Appliances stated on the Customer’s invoice, at the price stated on the Customer’s invoice.
General. Company reserves the right to revise these Terms of Sale in its sole discretion at any time without prior notice to Customer by updating these Terms of Sale at http://twindom.com, provided that such changes shall be effective from the moment a revised posting is made only with respect to Appliances purchased after the revision date. Thus, you should visit http://twindom.com/ periodically to review changes. If you disagree with these Terms or any changes thereto, Customer’s sole remedy is to discontinue future Appliance purchases. Acceptance by Customer of an Appliance after a change has been posted constitutes Customer’s acceptance of the change thereafter.
Software License.
1. General. Subject to the terms of this Agreement, Company grants to Customer, and Customer accepts from Company, a non-exclusive, non-transferable, and non-sublicensable license to access and use the Software when imbedded in the Appliance, for Customer’s internal business purposes. Company retains ownership of the Software and reserves all rights not expressly granted to Customer.
  1. Third Party Software. The Software contains certain third party software, as outlined in Exhibit A(the “Third Party Software”). Company believes that it has obtained licenses permitting the use of the Third Party Software in connection with Customer’s use of the Products consistent with this Agreement. As a condition of those licenses, Company is required to distribute the Third Party Software subject to specific terms and conditions, which may be different from or additional to those contained in this Agreement. Links to such terms and conditions are provided in Exhibit A. Furthermore, Customer agrees that Customer will only use the Third Party Software for Customer’s internal business purposes. The Third Party Software is licensed to Customer “AS IS.” Company shall have no obligation under this Agreement to support or maintain any such Third Party Software, nor will Company have any liability under this Agreement, for any claim arising from or related to Customer’s use, misuse, or reliance on the Third Party Software.
  2. Open Source Software. A portion of the Third-Party Software may contain or consist of open source software, which Customer may use under the terms and conditions of the specific license under which the open source software is distributed, as indicated in Exhibit A. THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL COMPANY, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Restrictions. Except and only to the extent where such exclusions and limits are prohibited by applicable law, Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software, or any part thereof. In addition, Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Products, or any part thereof; (ii) resell, sublicense or distribute the Products; (iii) provide, make available to, or permit use of the Products, in whole or in part, by any third party (except as expressly set forth herein) without Company’s prior written consent; (iv) use the Products to create or enhance a competitive offering or for any other purpose which is competitive to Company; (v) remove Software that was delivered on an Appliance from the Appliance on which it was delivered and load such Software onto a different appliance without Company’s prior written consent; (vi) use the Products in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party; or (vii) perform or fail to perform any act which would result in a misappropriation or infringement of Company’s intellectual property rights in the Products. Customer may not use any license keys or other license access devices not provided by Company, including but not limited to “pirate keys”, to install or access the Software.
Proprietary Rights. Customer understands and agrees that (i) the Software are protected by applicable intellectual property and other laws, including but not limited to copyright, (ii) Company owns all titles, rights, and interests in the Software, (iii) the Software and Appliance contain trade secrets of Company, including, but not limited to, the specific internal design and structure of individual programs and associated interface information; (iv) the Software is licensed, and not sold, and (v) Company reserves any and all rights implied or otherwise, which are not expressly granted to Customer in this Agreement.
Termination. This Agreement is effective until terminated. This Agreement may be terminated (i) by mutual agreement of Company and Customer, or (ii) automatically or otherwise cease to be effective without notice from Company if Customer fails to comply with any provision of the Agreement.
1. Upon termination of this Agreement, all rights granted to Customer for the applicable Software shall immediately cease and Customer shall immediately cease using the applicable Software. Customer acknowledges that Company has a right, in its sole and absolute discretion, (i) to disable or uninstall the Software remotely, such that Customer may no longer use the Software, whether or not Company has provided any prior notice to Customer, or (ii) to require that Customer remove all copies, installations, and instances of the applicable Software from the Appliance, all Customer computers, and any other devices on which the Software was installed, and give Company a written certification, within ten days, that Customer has complied with all of the foregoing obligations. Termination of this Agreement shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement.
2. Any provision of this Agreement that requires or contemplates execution after termination of this Agreement is enforceable against the other party and their respective successors and assignees notwithstanding termination, including, without limitation, the “Restrictions,” “Termination,” “Warranty Disclaimer,” “Limitation of Liability,” and “Miscellaneous” Sections of this Agreement.
Maintenance Services.
1. Description. During the Maintenance Period (as defined below) and for the applicable fees, Company shall repair or replace any part of the Appliance proving defective in material or workmanship, and shall assume the expenses of replacement; provided however, Customer shall assume the expenses of labor and shipping (the “Maintenance Services”). In order to obtain the Maintenance Services, Customer must notify Company by calling the toll-free number (844) 894-6366 and notifying Company of any defect, malfunction, or nonconformity promptly upon discovery. A Company representative shall, at Customer’s expense, ship parts for the purpose of repairing or replacing the defective part within fourteen (14) days of receipt of the call. A Company representative may ask for the defective part(s) to be shipped to Company located at 1101 Cowper St. Berkeley, CA 94702, also at Company’s expense.
2. Restrictions. Company shall not provide Maintenance Services for the following purposes, as determined in its sole discretion: (i) service calls to correct the installation of the Appliance; (ii) repairs necessitated by use other than normal use; (iii) damage resulting from misuse, abuse, accidents, alterations, or improper installation; and (iv) corrective work necessitated by repairs by anyone other than a Company-authorized service technician.
3. Maintenance Period. The period for which Customer is entitled to receive Maintenance Services begins on the date of the initial delivery of the Software and ends (_365_) days thereafter (the “Maintenance Period”).
Limited Warranties.
1. Limited Warranty. Company warrants that, at the time that the Products are delivered to Customer, the Products, as provided by Company, will not contain any viruses, worms, Trojan horses, or other malicious or destructive code designed by Company to allow unauthorized intrusion upon disabling of the Products, and to the best of Company’s knowledge, Customer’s use of the Products is not an infringement on any third party’s intellectual property rights. Company also warrants that the Products are free from defects in materials and workmanship under normal use. Except for the foregoing, the Products are provided “AS IS.”
2. Warranty Exclusions. The warranties set forth in this Section shall not apply to any non-conformance (i) that Company cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the applicable Products or by using the Products in a manner that is inconsistent with this Agreement; or (iii) arising from modification of the Products by anyone other than Company. The warranties set forth in this Section also shall not apply to the Third Party Software.
3. Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION OR IN AN ORDER ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY COMPANY HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS. This disclaimer shall apply even if the express limited warranty above fails of its essential purpose.
4. Breach of Warranty. Any action for breach of this limited warranty must be commenced within one year of the expiration of the warranty. Because some jurisdictions do not allow any limit on the length of an implied warranty, the above limitation may not apply to this Customer. If the law does not allow disclaimer of implied warranties, then any implied warranty is limited to (_365_) days after delivery of the Products to Customer. In case of a breach of this limited warranty, Customer’s exclusive remedy is as follows: Customer will return the Products to Company, at Customer’s cost. (Customer can obtain a step-by-step explanation of this procedure, including a return authorization code, by contacting Company at 1101 Cowper Street, Berkeley, CA 94702 or by phone at (844) 894-6366. At Company’s option, Company will either send Customer a replacement of the Products, at Company’s expense, or issue a full refund.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Furthermore, and not in limitation of the foregoing, Customer expressly acknowledges that the Appliance is, of necessity, a large and heavy object that, if improperly positioned, secured, maintained, or used, may cause significant damage and/or bodily harm, and that Customer is solely responsible for guarding against such damage and/or bodily harm. To the full extent permitted under applicable laws, Customer releases Company from and indemnifies Company against any and all liability, injury, harm, and damages that may result from the Appliance, or any part thereof, falling on or otherwise causing injury to any person or objects.
Delivery. Delivery of the Products shall be made on the Estimated Delivery Date either by Customer pickup at Company’s premises or by a mutually agreed upon carrier at Company’s premises. For the avoidance of doubt, Delivery shall be F.O.B. Shipping Point, which means Customer shall pay all shipping and transportation costs, and risk of loss passes to Customer at the point of shipment, as further set forth in this Section.
1. Estimated Delivery Date. Unless otherwise agreed in writing by the parties, Company shall deliver the Products on the Estimated Delivery Date indicated on the Customer’s invoice. Company shall make every effort to meet the Estimated Delivery Date but will not be liable for any loss arising from a delay in the Estimated Delivery Date. Customer and Company may change the Estimated Delivery Date with mutual written consent.
2. Delivery by Customer Pickup.If so indicated on the Customer’s invoice, Company shall deliver the Products, and Customer shall take possession of the same, at Company’s premises (either in person or through a third party) on the Estimated Delivery Date. If delivery is to be made at a date after the execution of this Agreement, it is Customer’s duty, either in person or through a third party to appear at Company’s premises during standard business hours on the Estimated Delivery Date to inspect and accept the Products. RISK OF LOSS PASSES TO CUSTOMER UPON PHYSICAL DELIVERY OF THE PRODUCTS AT COMPANY’S PREMISES.
3. Delivery by Carrier. If so indicated on the Customer’s invoice, Company shall deliver the Products at Company’s premises to the Carrier specified in the Customer’s invoice on the Estimated Delivery Date. All shipping and transportation expenses, including, but not limited to, transportation insurance, shall be born by Customer. RISK OF LOSS PASSES TO CUSTOMER UPON PHYSICAL DELIVERY OF THE PRODUCTS TO THE CARRIER AT COMPANY’S PREMISES.
4. Acceptance of Delivery.Unless otherwise agreed to by Company in writing, payment must be received by Company in cleared funds on or before delivery of the Products to Customer. The Products remain the sole property of Company until the Total Price indicated on the Customer’s invoice has been paid in full.
Payment Terms. Payment is due and payable on the terms as indicated on the Customer’s invoice. Payment for the Products shall be made by credit card, automated clearing house, check, or wire transfer. Payment shall be made in USD, unless otherwise agreed in writing by the parties.
1. Invoices.From time to time, in its discretion, Company may send invoices to Customer. Company is not responsible for pricing, typographical or other errors on any invoice.
2. Prices. The prices charged for the Products shall be the amount set forth on the Customer’s invoice. Quoted prices will remain in effect only until the Estimated Delivery Date. Such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors.
3. Default in Payment. In the event of Customer’s default in payment for the Products, Customer shall be responsible for all reasonable costs and expenses incurred by Company in collection of any sums owing by Customer (including attorneys’ fees).
4. Liquidated Damages. In the event that Customer breaches or terminates this Agreement prior to Company’s receipt of all payments as set forth in the Customer’s invoice, Company shall be entitled to liquidated damages in the amount indicated. Customer acknowledges that actual damages to the Company for its breach of this Agreement would be impracticable or difficult to determine but that such amount is a fair and reasonable estimate of the amount of damages that Company would likely incur.
Changes or Discontinued Products or Software. Company’s policy is one of ongoing update and revision. Company may revise or discontinue Products or Software at any time without prior notice to Customer. A change in Products or Software may occur after Customer places an order but before Company delivers the Products. As a result, Products or Software Customer receives might display minor differences from the Products or Software that Customer orders. However, the Company-branded Software or Products will meet or exceed all material specifications of such order.
Miscellaneous.
1. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in San Francisco County, California or Alameda County, California. Each party hereby agrees to submit to the jurisdiction of such courts. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
2. Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign, sublicense, or transfer any part of this Agreement, the license granted under this Agreement or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise without the prior written consent of Company. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void.
3. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
4. Indemnification. Customer agrees to defend and indemnify Company and hold Company harmless from all claims, losses, damages, complaints, or expenses connected with or resulting from Customer’s business operations.
5. Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. Each party acknowledges that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement.

EXHIBIT A

LIST OF THIRD PARTY SOFTWARE LICENSES

CUSTOM - http://www.imagemagick.org/script/license.php

ImageMagick

GNU FREE DOCUMENTATION LICENSE - https://www.gnu.org/software/wget/manual/wget.html#GNU-Free-Documentation-License

GNU GENERAL PUBLIC LICENSE - http://www.gnu.org/licenses/gpl.html

MeshLab

Curl

THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

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