Please read these Terms of Service carefully as they contain important information regarding your rights and obligations. By accessing or using the Prevu3D Platforms, you agree to be bound by these Terms of Service.

Subjects of the GDPR are also bound by the Data Processing Addendum.

Last update: September 30, 2022.

These Terms of Services (the “Terms”) constitutes a valid agreement between the entity identified on an Order Form (the “Customer”, “you”) and Prevu3D, Inc. with a registered address at 201-4911 Rue Dagenais, Montréal, Québec, H4C1L8 Canada (“Prevu3D”, “we”, “us”).

These Terms enter into force upon the acceptance of an Order Form, or otherwise upon the acceptance of the Terms by the Customer (the “Effective Date”). If you are entering into these Terms on behalf of the Customer, you represent and warrant that you are authorized to enter these Terms on behalf of the Customer.

These Terms define the legal relationship between you and us, in connection with the Services. If you have any questions related thereto, you can reach us at [email protected]. If you are entering into these Terms on behalf of the Customer, you agree:

DEFINITIONS

●      “3D Processing Services” means the Services provided by Prevu3D, which involves the processing of the Data Inputs by Prevu3D, as agreed upon by the Parties in an Order Form, such as for processing the various compatible Data Inputs to be used, modified, and accessed in the Platform Services.

●      “Applicable Laws” means any statute, regulation, rule, code, ordinance, constitution, treaty, common law, judgment, decree, or other requirement of any federal, municipal, provincial, territorial, or foreign government or one of its political subdivisions or of any arbitrator, court or tribunal of competent jurisdiction which are applicable to the performance of the Services, these Terms, or otherwise to the use of the Input Data by Prevu3D.

●      “BETA Services” means any version of the Services, including any functionality and any Platform Licence (as defined below), that is made available to the Customer to try at its option, and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

●      “Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including proprietary information and trade secrets. Confidential Information must be indicated as confidential information, or it must be clear at the time of the disclosure that the information ought to be handled as Confidential Information. Without limiting the generality of the foregoing, the Input Data is Customer’s Confidential Information.

●      “Documentation” means the documentation approved by Prevu3D which describes any specifications for the Services, such as Data Inputs processing parameters and formats.

●      “Defined Area” means the specific area, in square feet (ft2) or meter (m2), as described in the Order Form, which is the subject of the Services.

●      “End User” means each user who is authorized by you to use and access the Services during the Subscription Term.

●      “Input Data” means the data collected by Customer or by Prevu3D as part of the Turnkey Services and which are processed by Prevu3D pursuant to this Agreement, including in the Platform Services, and the resulting products that result from said processing.

●      “Order Form” means an order form describing the Services provided to the Customer, such as the Subscription Term for Platform Services, the project schedule, the Fees, the Defined Area for the performance of the 3D Processing Services, and any other terms and conditions agreed upon by the Parties for the performance of the Services. The Order Forms are deemed part of the Terms, and the Order Form shall prevail in case of a conflict with the Terms.

●      “Platform Services” means the Platform Basic Services and the Platform Premium Services, indiscriminately.

●      “Platform Basic Services” means the version of the Platform Services which contains basic functionalities that are available from time to time. The Platform Basic Services may not be available as a web application and may be subject to a Platform Licence (as further defined below).

●      “Platform Premium Services” means the software-as-a-service web application provided to the Customer and its End Users to upload, store, and modify the Input Data, such as for optimization, cloud meshing and texturing or organizing environments. The Platform Services are provided pursuant to a Subscription Term, as indicated in an Order Form.

●      “Representatives” means a party’s Affiliates, subsidiaries, resellers, agents, and subcontractors, as well as the respective employees, directors, officers and developers of each of these third parties, and those of the concerned party, as the case may be.

●      “Services” means the Turnkey Services, the Platform Services, the 3D Processing Services, and any other services agreed upon in an Order Form from time to time.

●      “Subscription Term” means the period during which the Platform Premium Services are made available to you (including to your End Users), as set forth in the Order Form from time to time.

●      “TSS” means the technical support services and maintenance provided as part of the Platform Premium Services, and as described herein.

●      “Turnkey Services” means the 3D scanning services required to collect the Input Data, the processing of such Input Data, and access to the Platform Services, for the Subscription Term, as set forth in an Order Form from time to time.

ACCESS TO THE PREVU3D SERVICES

2.1.         Prevu3D offers the Services agreed upon in an Order Form from time to time. The Order Form may be executed by digital acceptance, through signature, or otherwise by the issuance of a corresponding payment or purchase order by the Customer. Prevu3D hereby grants you a limited, non-exclusive, non-transferable and non-sublicensable, except to End Users, and except as set forth in these Terms, right and licence to access, use, install, and copy (but only for business continuity purposes) the Platform Services, which may include a desktop application for which the licence is provided for the Subscription Term as Platform Premium Services, and thereafter, as Platform Basic Services (the “Platform Licence”). The Platform Licence is only for the intended use, on a device owned or controlled by the Customer, and subject to these Terms.

2.2.         If indicated accordingly in an Order Form, Prevu3D will perform the 3D Processing Services on the Data Inputs provided by the Customer. Prevu3D is not responsible for the accuracy, quality or adequacy of any Data Inputs collected by the Customer, and Prevu3D will not be liable if the 3D Processing Services cannot be performed in accordance with the Documentation or an Order Form due to circumstances attributable to the Data Inputs collected by the Customer. The Turnkey Services include the 3D scanning of the Customer’s Defined Area and the processing of the Input Data in accordance with an Order Form.

2.3.         You agree and understand that you are responsible for:

●      Providing us with timely and accurate information to perform the Services.

●      Preparing the Defined Area for any on-site visit and ensuring that you have access to the Defined Area, including that you are authorized to access the Defined Area.

●      Ensuring that you are available for on-site visits at the agreed upon date.

●      Applying adequate security measures while on-site.

●      Following the 3D Scanning Guidelines provided by Prevu3D.

2.4.         During the Subscription Term, (a) Prevu3D will deploy commercially reasonable efforts to ensure that the Platform Services are available 7 days / 7 days, and 24 hours / 24 hours and (b) Prevu3D will provide TSS in response to technical requests and support requests regarding the Services (each a “TSS Request”) within a reasonable delay and based on the relative severity of each TSS Request. Prevu3D will not be obliged to provide TSS if you are in breach of these Terms.

2.5.         We reserve our right to change our Services from time to time except that such changes shall not result in adverse material impacts on your use of the Services. We may change these Terms from time to time. We will also understand that you agree with the latest version of the Terms if you enter into the subsequent Order Form, which refers to these Terms. For the avoidance of doubts, the version of the Terms applicable to your Services will be the latest version agreed to in an Order Form. If the Customer has subscribed to the Premium Platform Services, we will provide you with a written notice of such changes at least fifteen (15) days before they enter into force. If you do not agree with these changes, you must reach out to us within this delay; otherwise, we will understand that you agree with these changes.

2.6.         During the Subscription Term, or within three (3) months of the delivery of the Turnkey Services or 3D Processing Services (the “Warranty Term”), we represent and warrant that the Services will be (a) performed substantially in accordance with an Order Form and the Documentation; (b) in a professional and workmanlike manner, in accordance with reasonable industry standards for such Services (the “Services Warranties”). If Prevu3D breaches the Services Warranties during the Warranty Term, Prevu3D will, at its sole discretion, (i) re-perform the non-compliant Services at no additional costs to the Customer; (ii) reimburse the Customer for the performance of the non-compliant Services or (iii) provide the Customer with a discount corresponding to the value of the non-compliant Services, and the Customer agrees that the foregoing shall be Customer’s sole remedy for a breach of the Services Warranties.

PLATFORM SERVICES

3.1.         You are required to have an account to use the Platform Services. You are responsible for provisioning accesses to End Users, and for removing such accesses when End Users no longer need access to the Platform Services. End Users may modify Input Data and provide access to Input Data to third parties. We are not responsible for any breach of these Terms, including an unauthorized disclosure of Input Data, resulting from End Users use of the Platform Services.

3.2.         The Subscription Term will renew automatically for subsequent period of twelve (12) months, unless either party notifies the other party that it does not intend on renewing the Subscription Term within thirty (30) days of the end of the then-current Subscription Term. Upon the expiration of the Subscription Term, you will still have access to the Input Data through the Platform Basic Services, but you will not have access to certain functionalities and modules which are only accessible as part of the Platform Subscription Services. The Platform Basic Services do not include any TSS.

BETA SERVICES

4.1.         Notwithstanding anything to the contrary, and to the full extent permitted by Applicable Laws, the BETA Services are provided without warranty or representation of any kind, and Prevu3D disclaims all warranties and representations whether implied or express. The BETA Services are provided “as is” and “whereas”, at Customer’s sole risks. There may be some bugs, and we may also ask for feedback. If you are accessing the Beta Services, you are accessing it for as long as we decide, regardless of any Subscription Term, and we may end the Beta Services upon written notice.

INTELLECTUAL PROPERTY

5.1.         Input Data. You own all rights, titles, and interests in the Input Data. By providing Input Data to Prevu3D, you hereby grant Prevu3D a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify or aggregate the Input Data (a) for the purpose of formatting for display, and distribute your Input Data, in whole or in part, as required to provide you with the Services or to perform our obligations under these Terms; (b) for the purpose of supporting the benchmarking or development of new features or products, the training of machine learning models and algorithms in an anonymized and de-identified fashion or the improvement of our Services generally. You represent and warrant that (a) you have all rights, titles and interests to allow us to process the Input Data as intended herein; (b) the processing of the Input Data by Prevu3D to perform the Services, as requested in or inferred from an Order Form, does not result in a breach of a third party’s Intellectual Property or other moral rights, such as privacy rights, and (c) the processing of Input Data by Prevu3D does not constitute a breach of Applicable Laws, including any export control legislation applicable to the Input Data.

5.2.         Prevu3D. We own all rights, titles and interests in the Services and our Confidential Information. Notwithstanding anything to the contrary, we are the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including any End Users, to Prevu3D, so long as they relate to the Services. You hereby assign, without limitation of any kind, all of your rights, title and interests to said suggestions, enhancement requests, recommendations, and feedback, and we accept this assignment.

ACCEPTABLE USE OF THE SERVICES

6.1.         You agree that neither you nor your End Users will use our Services to transmit, use or process any Input Data which (a) contain viruses or malicious codes; (b) violates the privacy rights of individuals; (c) is subject to export control laws, and for which the processing by either the Customer or Prevu3D constitutes a violation of Applicable Laws; (d) which constitutes a breach of another party’s Intellectual Property; and (e) is threatening, abusive, hateful or constitutes or encourages conduct that would be considered a fraud, a criminal offence or likely to give rise to civil liability.

6.2.         You also agree that you will not use the Services in a manner which involves (a) the use of a robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms or methodology to access, acquire, copy or monitor the Services or any portion thereof; (b) the sharing of credentials, identifiers and passwords among End Users or among End Users and third parties; (c) the use of time-sharing service, service bureau, network and other means of sharing accesses; (d) decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or ideas or algorithms of any of the Services underlying technology by any means whatsoever or (e) that involves penetrating our security, attempting to hack any security requirements or processes within or about the Services or otherwise manipulating identifiers to disguise the origin of any Data Inputs transmitted or uploaded on to the Services.

CONFIDENTIAL INFORMATION

7.1.         Confidential information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure, (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party; or (iii) was independently developed by the Receiving Party without any reliance on the Confidential information belonging to the Disclosing Party.

7.2.         The Receiving Party will only use and disclose the Disclosing Party’s Confidential Information to provide or improve the Services, or in accordance with Applicable Laws, including any legal requests requiring the divulgation of Confidential Information and which the Receiving Party is reasonably required to comply with. If the Receiving Party is required to disclose Confidential Information to a third party, the Receiving Party will ensure that the recipient is subject to commercially reasonable confidentiality obligations, which shall be minimally as substantive as set forth herein. The Receiving Party will securely delete any Confidential Information which is no longer needed to provide the Services. The Customer agrees and understands that the Services are not intended as a repository for the Input Data, and the Customer is solely responsible for maintaining an adequate backup.

FEES; PAYMENT TERMS

8.1.         Subject to these Terms, you agree to pay us for the fees agreed upon in an Order Form from time to time, along with any costs and expenses, and any applicable taxes (the “Fees”). The Fees are non-cancellable and non-reimbursable, except as set forth otherwise in the Terms. All Fees are in Canadian dollars unless indicated otherwise in an Order Form. Unless stated otherwise in an Order Form, you agree to pay for the Fees within thirty (30) days of the invoice date. Any unpaid portion of the Fees past the due date is subject to interests of 1,5% monthly (18% annually).

8.2.         If the Fees have not been paid within sixty (60) days from the initial invoice date, Prevu3D may suspend the Services (or part of the Services) without further notice, until all past invoices are paid. During such suspension period, Prevu3D shall have no obligation to provide the Customer with the Services, until the Fees are paid in full. Notwithstanding the foregoing, we may charge you for the Premium Platform Services Fees during the Subscription Terms as if the Premium Platform Services were delivered. Upon payment of all due Fees and any applicable interests, Prevu3D will resume the performance of the Services without undue delays.If the Fees are not paid in full, with applicable interests, within ninety (90) days, then you agree that you will be liable for any collection costs, including reasonable attorneys’ fees, which we incur to recover any unpaid Fees.

8.3.         If applicable, you hereby authorize us to debit the Fees from your bank account or credit card, as the case may be, and you represent and warrant that you have provided us with accurate and truthful financial information as required for us to debit the Fees in your bank account or on your credit card.

8.4.         If we are required to collect any taxes from you in accordance with Applicable Laws, or the administration thereof, you agree to pay these taxes to us in addition to the payment of the Fees (and any consideration payable under these Terms).

8.5.         The Customer shall make all payments under these Terms without any deduction or withholding for or on account of any tax (“Tax Deduction”), unless a tax deduction is required by Applicable Laws. If a Tax Deduction is required by the Applicable Laws, then (i) the customer must, as soon as he learns that he has to make a Tax Deduction (or that there is a change in the rate or basis of a Tax Deduction), inform Prevu3D and (ii) the  Customer must remit the amount of the Tax Deduction to the competent tax authorities in due time. Prevu3D will use commercially reasonable efforts to mitigate, reduce or eliminate any Tax Deduction.

TERMINATION

9.1.         These Terms enter into force at the Effective Date and continue in full force for as long as the Customer (including its End Users) is using the Services (the “Term”). Sections 4, 5, 7, 10, 11, 12, and  13 will  survive the Term for a period of 5 years. The Subscription Term will renew automatically for subsequent periods of twelve (12) months, unless terminated by either party by written notice at least thirty (30) days before the end of the then-current Subscription Term.

9.2.         In case of a material breach of these Terms, either party may terminate these Terms upon written notice to the other party if this party does not cure the material breach within 30 days of a notice to this effect. If the Terms are terminated due to a material breach by Prevu3D, Prevu3D will reimburse any Fees corresponding to Services which have not been rendered at the date of termination.

9.3.         If you breach these Terms, or as reasonably necessary to protect our infrastructure and other clients, we may suspend your access to the Services. When practicable, we will provide you with a written notice prior to any suspension; otherwise, we will notify you without undue delays after such suspension. Each suspension will be to the minimum extent required to enforce these Terms, or to protect our infrastructure and other clients. We will reactivate the Services as soon as the circumstances leading to the suspension are resolved.

DISCLAIMERS OF WARRANTIES; INDEMNITY

10.1.         Notwithstanding anything to the contrary, and to the full extent permitted by Applicable Laws, you are alone responsible for determining if the Services offer adequate safeguards for the handling of the Input Data, and for ensuring that the use of the Services is appropriate for your intended use. Prevu3D does not guarantee that the Services will meet your intended uses, nor that the Services are adapted for your needs.

10.2.         Notwithstanding anything to the contrary, and to the full extent permitted by Applicable Laws, you are alone responsible for the accuracy, truthfulness and quality of Input Data and any content or information directly or indirectly delivered through or passed through the Services by Customer (or its End Users). We exercise no control over and accept no responsibility for the accuracy, truthfulness, and quality of Input Data. The Services are not intended as a data repository, and the Customer is solely responsible for ensuring that proper backups and copies of the Input Data are stored internally in accordance with the Customer’s procedures for data recovery, disaster recovery and business continuity. Except as set forth herein, Prevu3D will not be held responsible for any losses of Input Data.

10.3.         Notwithstanding anything to the contrary, and to the full extent permitted by Applicable Laws, (a) you agree and understand that the Services are not intended for the processing of personally identifiable information; (b) you agree that it is your responsibility to ensure that the Input Data does not include any personally identifiable information, including representations of individuals and (c) you agree that the Services are intended for industrial, commercial, and professional uses, for the 3D modelling of Defined Areas, such as industrial, commercial, professional or public buildings (the “Intended Purposes”), and not for the 3D modelling of individuals or documents with personal or confidential information. Notwithstanding anything to the contrary, and to the full extent permitted by Applicable Laws, (i) we provide no representation or warranty whatsoever if your use of our Services is in violation of the Intended Purposes or is otherwise in violation of these Terms; (ii) we have no responsibility whatsoever regarding any processing of personally identifiable information in violation of the Terms; (iii) you agree to indemnify, hold us harmless and defend us, and our Representatives, from any third party claims, damages, allegations, costs and expenses (including reasonable attorneys’ fees) (together, the “Losses”) resulting from your use of our Services in violation of the Intended Purposes

10.4.         Notwithstanding anything to the contrary, to the full extent permitted by Applicable Laws, and except as provided in these Terms (i) we do not warrant that the Services will be uninterrupted or error free; (ii) we do not make any warranty as to the results that may be obtained from the use of the Services; (iii) Prevu3D is the sole authorized person to make any representations or warranties on its behalf (iv) the Services are provided on an “as is”, “where is” and “as available” basis; (v) we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, quality, reliability or completeness of any outputs or information provided as a by or as a result of using the Services; and (vi) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in these Terms, you hereby waive your rights in any of the foregoing warranties, representations, or conditions, whether express or implied. No other oral advice, written or electronically delivered information given by us or our Representatives shall create any warranty.

10.5.         Notwithstanding anything to the contrary, and to the fullest extent permitted by Applicable Laws, the parties each agree to indemnify, hold us harmless and defend the other and the other party’s Representatives against any Losses resulting from, and to the proportionate extent of the indemnifying party’s liability for, material breach of these Terms, negligence, fraud, or wilful misconduct.

LIMITATION OF LIABILITY

11.1.         To the maximum extent permitted by Applicable Laws, and except as it relates to any indemnity granted under these Terms, neither party nor its Representatives will be liable to the other party and its Representatives for any indirect damages, including reputational damages, consequential damages, special damages, costs of notification, costs of data retrieval, losses of business and opportunities.

11.2.         Notwithstanding anything to the contrary, to the maximum extent permitted by Applicable Laws, our aggregate liability to you for any Losses arising out or in connection with these Terms or the performance of the Services, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by you to Prevu3D pursuant to an Order Form during the twelve (12)-month period preceding the events which gave rise to such damages.

GOVERNING LAW; DISPUTE RESOLUTION

12.1.         The courts of competent jurisdiction in the Province of Québec (“Designated Courts”) shall have exclusive jurisdiction to hear any dispute between the parties arising from the application or interpretation of the Terms, including the delivery of the Services, not resolved by discussions between the parties’ senior management within thirty (30) days of a parties’ receipt of written notice of the dispute from the other party, and the parties hereto irrevocably consent  to and waive any jurisdictional or forum non conveniens objection to such jurisdiction i

12.2.         These Terms (including the performance of the Services) are governed by and constructed in accordance with the laws of the Province of Quebec without giving effect to any choice or conflict of law provision or rule. Specifically excluded from application to the Terms is that law known as the United Nations Convention on the International Sale of Goods.

GENERAL PROVISIONS

13.1.         Neither party will be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labour disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence, to the extent that it notifies the other party without undue delays.

13.2.         Prevu3D is an independent contractor, and the parties agree that these Terms do not create a partnership, joint venture, or agency relationship between the parties.

13.3.         The waiver of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of these Terms is in violation of any law, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. These Terms describe the entire understanding of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.

13.4.         We may assign these Terms, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign these Terms, or part of it, to any other person without our prior written approval. Any attempt by you to assign these Terms without our consent is void. These Terms will inure to the benefit of permitted assigns and successors.

13.5.         The parties acknowledge that they have required these Terms and all related documents to be prepared in English only.  Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous documents qui s’y rattachent soient rédigés uniquement en langue anglaise.