Modest3D End User License Agreement (EULA)

IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between You, the End User (Either an Individual or a Single Entity), and Modest Tree Media Inc., (“Modest Tree”, “we”, “our” or “us”) for the Modest3D™ Software product and any associated software development kits, media, printed materials “online” or electronic documentation and associated sample model files or content (Collectively “Software”) accompanying this EULA.

By installing, accessing, copying, downloading or using the Software You accept all the terms and conditions of this Agreement. If You do not agree with the terms of this license agreement, promptly return the unused Software. Taking possession of a license key for this Software shall be considered your irrevocable acceptance of this agreement.

This Software is licensed, not sold. This Software is protected by copyright law, international copyright treatises, as well as other intellectual property laws and treaties. You acknowledge and agree that Modest Tree owns all legal right, title, and interest in and to the Software, including any intellectual property rights which subsist in the Software (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

  1. Definitions.
    1. “Authorized Internal Use” shall mean the use by Licensee of the Software for its business purposes, and not for distribution or resale. For hosted cloud installations Authorized Internal Use is solely for internal use by a single person with a single named user login to develop Licensee Content during the applicable license term. For standalone licenses Authorized Internal Use shall include the right to use the Software by an individual on a single terminal connected to a single computer. For client-hosted installations of the Software Authorized Internal Use is the right by a single person with a single named user login to develop Licensee content during the applicable term.

    2. “Licensee” shall mean the end-user licensing the Software.
    3. “Software” shall mean Modest3D programs in all configurations, underlying branch products, and optional extension modules, along with associated media and printed materials, and any online or electronic documentation. “Software” also includes any software updates, add-on components, web services and/or supplements that Modest Tree may provide to You or make available to You after the date You obtain Your initial copy of the Software to the extent that such items are not accompanied by a separate license agreement or terms of use.

    4. “Creative Works” shall mean the graphical content created by “You” through the use of the “Software”.

    5. “Redistributable Modest3D Player (Modest3D Player)” shall mean the exported file that is provided to distribute the interactive lesson via a browser or as an executable file.

    6. “You” or “Your” means the Licensee.

    7. “Subscription License” means a license to install, use and run one copy of the Software by an individual that is purchased for a period of time. The licensee has access to the software during the subscription period and receives all updates to the software during the subscription period.

    8. “ User” This includes the use of the Licensed Software a single named user login.

  2. License Grant (Software) Upon compliance with the terms and conditions of this Agreement and payment of all applicable fees, Modest Tree grants to Licensee a non-exclusive, non-transferable license for the Authorized Internal Use of the Software only. Licensee is responsible for obtaining and operating all equipment and software necessary for Licensee and for Licensee’s employees to use and access the Software and to connect to the internet. Nothing herein grants any rights to Licensee to rent, resell, or to remarket the Software, or to provide access to the Software, to any third party, except that (i) Licensee may use the Software to provide the derivative (“Creative Works”) to their Clients. Licensee shall not provide any output of the Software in a form that is modified or which removes any of the proprietary marks on the Software, unless agreed by Modest Tree in a separate agreement. Licensee acknowledges that each end user related to any particular account will be required to accept these click-through Terms of Use before each account is permitted to first access the Software;

    1. License Term. Licensing of the standalone or cloud version of Modest3D is purchased on a Subscription Period. The Subscription Period is one year from date of purchase, unless otherwise negotiated under a separate agreement with a Licensee. Purchasers may opt for multiple annual Subscription Periods to take advantage of additional discounts on License subscription cost. Modest Tree will bill or invoice Licensee no more frequently than once per Subscription Period at the start of the Subscription Period, unless otherwise agreed to with Licensee. Modest Tree is under no obligation to maintain Licensee’s Creative Works in the event that the licensee terminates the subscription to the Software. Modest Tree will notify Licensee of the end of the Subscription Period by way of the Registration Information that the Licensee provided us prior to the end of the Subscription Period, but we cannot guarantee that Licensee’s Creative Works will be maintained if Licensee allows a Subscription Period to expire.

      If you are using the Software on a trial basis the license granted under this Agreement will remain in effect for a period of 30 days, unless earlier terminated in accordance with this Agreement.

    2. Trial Use Restrictions. If you are using the Software on a trial basis, you may not publish or distribute any Creative Works.

    3. License Grant (Redistributable Runtime Module). If you have licensed a version of the Software other than a trial or educational version, upon Your registration with Modest Tree, and in conjunction with your distribution of Your Creative Works, you are authorized to distribute the MODEST3D PLAYER to run Creative works developed with the licensed Software. As between You and Modest Tree, Modest Tree does not claim any rights to any Creative Works or the intellectual property that You create using the Software, except as may be specified in Section 5.6. This module must be distributed with Your Creative Works with all legends and splash screens intact, unless otherwise authorized in writing by Modest Tree. This module may not be used for any purpose other than the execution of your Creative Works.

    4. Fees; Payment Terms. Licensee’s rights under these Terms of Use are subject to fees payable by Licensee as set forth during the Subscription Period. All fees invoices will be in U.S. Dollars, unless specifically agreed to be denominated in a different currency. Licensee will pay each amount due under these Terms of Use in full within thirty (30) days of receipt of the applicable invoice. Licensee will pay interest of two and a half percent (2.5%) per month on the amount shown on any invoice that is paid later than the due date, or the maximum amount allowed by law, if lower. If Licensee declines to pay fees invoiced by Modest Tree, then Modest Tree may suspend or terminate (at Modest Tree’s discretion) access to the Software or terminate these Terms of Use (and all applicable login credentials and the Subscription Periods) with respect to Licensee effective ten (10) days after delivery of notice of termination to such Licensee, unless such payments are made to Modest Tree prior to the end of that ten (10) day period. All fees payable under this Agreement are net amounts and are payable in full. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or your receipt or use of the Software. In the event that Modest Tree is required to collect any tax for which you are responsible, you will pay such tax directly to Modest Tree.

    5. Licensee Support. Each Licensee receives access to online videos,user documentation and email support during the subscription period. To contact the Modest Tree support team online a licensee may log a support request through the support page on www.modest3d.com. Modest Tree will respond to all email support requests from the licensee within 24 hours of the business day following receipt of the request. A member of the Modest Tree support team will review the support request and contact the licensee with a resolution, course of action or to seek further clarifications to aid in diagnosing the issue. Modest Tree can provide phone support at an additional charge, to be agreed under a separate support contract with Modest Tree. Modest Tree may provide user training to employees of Licensee via online or in-person training sessions, and such training at an additional charge, to be agreed under a separate support contract with Modest Tree.

    6. Updates. All software updates completed during the subscription period are provided to the Licensee. Updates through the cloud software are provided automatically. Updates on the Standalone version of software are provided to the Licensee via secure download link.

  3. Limitations on License. You shall not modify, enhance, distribute, sell, lease or sublicense the Software, or any component thereof; nor shall You copy or reproduce the Software, or any component thereof. Standalone users may store a single hard disk or CD ROM, and only then if the original is retained solely for backup purposes.

  4. Licensee Responsibility. Licensee shall have the sole obligation to assure that the Software is are properly installed and operated, and that adequate and sufficient quality assurance procedures are instituted and maintained in conjunction with its use. Licensee agrees that the Software provided to Licensee, along with the pricing and subscription plan are the confidential information of Modest Tree; Licensee agrees not to disclose any of such confidential information to any third party except to the extent expressly permitted by these Terms of Use and to use such confidential information solely for the purposes of these Terms of Use.

    1. Export Compliance. Licensee shall not in any form export, re-export, ship, divert or cause to be diverted, directly or indirectly, the Software or MODEST3D PLAYER to any country for which the Canadian government, any agency thereof, or any other sovereign government, at the time of export or re-export, requires an export license or other governmental approval without first obtaining such license or approval. Any such unauthorized transfer will result in forfeiture of Licensee to the Software. Licensee shall be responsible for all losses and liabilities to Modest Tree for any violations of this section, including but not limited to losses and liabilities resulting from piracy, reverse engineering, cloning, transfer to any country or entity under restriction by the Canadian government or deliberate misrepresentation of the product. Such losses and liabilities include but are not limited to reasonable legal expenses required to block further unauthorized use of the Software and any fines or legal expenses with regard to any regulatory action to address export and technology transfer liabilities and violations.

    2. Improper Activities. You agree that You will not authorize or facilitate any attempt by another person to use our Website or Software, including without limitation any Creative Works that: (a) transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Modest Tree in its absolute and unfettered discretion; (b) use a name or language that Modest Tree, in ts sole discretion, deems offensive; (c) post defamatory statements or images; (d) post hateful or offensive content or content that disparages any ethnic, racial, sexual, gender, religious, or other group; (e) post content that depicts or advocates the use of illegal drugs; (f) post content that characterizes violence as acceptable, glamorous or desirable; (g) post content which infringes another’s copyright, trademark or trade secret; (h) post unsolicited advertising or unlawfully promote products or services; (i) harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity; (j) impersonate another person or company; (k) exploit children under 18 years of age; (l) engage in disruptive activity; (m) introduce viruses, worms, Trojan horses and/or harmful code to the Website; (n) obtain unauthorized access to any computer system through the Website; (o) invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age); (p) solicit personal information from children under 13 years of age; (q) violate any federal, state, local, or international law or regulation; or (r) encourage conduct that would constitute a criminal or civil offense. In addition, you may not use automated scripts to collect information or otherwise interact with our Software or the any Modest Tree operated websites. Modest Tree reserves the right to consider other conduct to be prohibited; this section is intended to be illustrative.

    3. Consent to Data Collection. You acknowledge and accept Modest Tree’s Privacy Policy. You agree that the Software may send data to Modest Tree to: (a) check for Software updates; (b) provide aggregated usage statistics of your use of the Software (c) provide analytics and; and (d) validate license keys in order to prevent unauthorized use. You acknowledge and agree that Modest Tree may deliver messages and contact you about the Software.

    4. Indemnification. To the extent allowed by law, Licensee shall indemnify and hold harmless Modest Tree , its agents, employees, successors and assigns by any third party from and against any and all liabilities, losses, damages, suits, costs, expenses, charges, actions, claims and demands, including attorney’s fees, whether in tort or in contract, of whatsoever kind and nature imposed on, incurred by, or asserted against Modest Tree , its agents, successors, and assigns by any third party which arise from or are in any way connected with a breach of any provision of this Agreement by Licensee, including but not limited to failure to comply with export requirements, or from unauthorized use of the Software or MODEST3D PLAYER by Licensee.

  5. Property Rights. The Software and MODEST3D PLAYER are owned by, and proprietary to, Modest Tree. All applicable rights to patents, copyrights, trademarks, trade secrets and other proprietary rights in the Software, MODEST3D PLAYER and all components thereof are, and shall remain the property of Modest Tree.

    1. No Transfer of Possession. Licensee shall not, temporarily or permanently, transfer possession or access to the Software to any third party without the express written consent of Modest Tree (including by password or other credential sharing). Any such unauthorized transfer will result in forfeiture of Licensee to the Software. If such unauthorized transfer occurs, Licensee shall be responsible for all losses and liabilities to Modest Tree including reasonable legal expenses required to block further unauthorized use of the Software. Clause 5.1 does not apply to the MODEST3D PLAYER.

    2. Documentation: If the Software contains documentation that is provided only in electronic form, You may print one copy of such electronic documentation.

    3. No reverse Engineering or Cloning. Licensee shall not (and shall not permit others to), in whole or in part, reverse engineer, clone, decompile, disassemble, enhance, modify, rent, lease, or create derivative works of the Software or MODEST3D PLAYER for any purpose or in any manner. Licensee agrees that all content and materials related to the Software and MODEST3D PLAYER are protected by Modest Tree 's copyright, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws (whether registered or not). Licensee shall not sell, rent, transfer, reproduce, publicly display, modify, adapt, translate, or create derivative works of, the Software. Licensee shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from the Software or MODEST3D PLAYER. Licensee shall not reproduce the functionality of the Software or MODEST3D PLAYER nor shall Licensee engage any third party to do so.

    4. Legends. Licensee shall not remove, obscure, or deface any proprietary legend, copyright notice, or other restrictive notice or legend relating to Modest Tree ‘s rights, on or from the Software or MODEST3D PLAYER. Licensee shall reproduce all copyright notices, and other restrictive legends, appearing thereon and include the same on all copies it makes in whole or in part. Such copyright notices may appear in any of several forms, including machine-readable form. Licensee shall reproduce such notice in each form in which it appears. This EULA does not grant You any rights in connection with any trademarks or service marks of Modest Tree.

  6. Limited Warranty. THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. MODEST TREE AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MODEST TREE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

    1. LIMITATION OF LIABILITY. In no event shall Modest Tree be liable for any special, incidental, punitive, indirect or consequential damages, (including loss of economic advantage, business, profits, data or inaccuracy of data), in connection with or arising out of this agreement or from use of Software, whether or not Modest Tree has been advised of the possibility of such damages and regardless of the form of action or legal theory (whether in contract or in tort, including strict tort liability, or based on a warranty) under which the liability may be asserted. Modest Tree’s total liability to you from all causes of action under all theories of liability will be limited to the greater of the amounts paid by you for the software.

  7. Termination. In the event of a material breach of this Agreement by Licensee, including any action in derogation of Modest Tree’s rights to the Software and MODEST3D PLAYER licensed hereunder, Modest Tree may immediately terminate this Agreement. In addition, Modest Tree may terminate this Agreement immediately should the Software, MODEST3D PLAYER, or any portion thereof, become, or in Modest Tree’s opinion be likely to become, the subject of a claim of infringement of a patent, trade secret, copyright, mask work right, or other proprietary right.

    1. Licensee’s Obligations Upon Termination. Either party may terminate these Terms of Use, and the Subscription Period hereunder, at any time upon thirty (30) days’ written notice in the event of a breach by the other party that is not cured in such thirty (30) day period. Licensee may terminate these Terms of Use upon the end of a Subscription Period. Modest Tree may terminate these Terms of Use, effective immediately and with no notice, if Licensee has not paid for an additional Subscription Period at the end of the preceding Subscription Period. Modest Tree may also terminate these Terms of Use as of the end of the Subscription Period without cause in the event that Modest Tree ceases to make available the Software to its customers generally. In such a case, Modest Tree will make reasonable efforts to provide Customers with access to retrieve their Creative Works.

  8. Miscellaneous

    1. Creative Works. Licensee expressly assumes any and all responsibility and liability for all Creative Works defined as end user applications and products into which Modest Tree Software is included.

    2. Applicable Law. The laws of the Province of Nova Scotia shall govern this Agreement, without regard to Nova Scotia’s conflict of law provisions. To the maximum extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods shall not govern this EULA or the performance thereof or any aspect of any dispute arising there from or relating there from, regardless of whether such convention enters or shall have entered into force with respect to the Canada or any other country.

    3. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.

    4. Entire Agreement. By using the Software, Licensee acknowledges that it has read and understood this Agreement and agrees to be bound by its terms and conditions. Licensee further agrees that this Agreement sets forth the sole and entire understanding with respect to this Software License, and merges and supersedes all prior oral and written agreements, discussions, and understandings, express or implied, concerning all matters related thereto. This Agreement may not be modified, amended or cancelled, in whole or in part, except by written agreement signed by both parties.

    5. Assignment. Licensee may be granted the option to assign this Agreement to another member of their company upon submission to Modest Tree of a completed Modest Tree license transfer form. Upon assignment, the new user must agree to be bound by the same EULA and the former user must certify to Modest Tree that any copies of the Software in Licensee’s possession have been destroyed.

    6. Survival. Paragraphs 4.4 (Indemnification), 5 (Property Rights), 6 (Limited Warranty) and 7.1 (Licensee’s Obligations on Termination) and any other provision of the EULA whose terms or context requires survival shall survive termination, expiration or assignment of this Agreement.

    7. Relationship between Modest Tree and Licensee: It is agreed and understood that Licensee is not the agent or representative of Modest Tree and has no authority or power to bind or contract in the name of or to create any liability against Modest Tree in any way or for any purpose. Nothing herein contained shall be construed to create a partnership or joint venture or employment relationship or agency relationship between the Parties.

    8. Attorney's Fees: If Modest Tree employs attorneys to enforce any rights arising out of or relating to this EULA, and if Modest Tree is the prevailing party, Modest Tree shall be entitled to recover its reasonable attorneys' fees and costs from You.

    9. Venue: The parties consent to the exclusive jurisdiction and venue in the federal or provincial courts sitting in Halifax, Nova Scotia. You expressly waive all defenses of lack of personal jurisdiction and “forum non-conveniens”. Process may be served on either party in the manner authorized by applicable law or court rule.

    10. Headings: The headings in this EULA are inserted for ease of reference only and shall not affect the construction or interpretation of this EULA.