NetVirta Terms of Service 1
Verifyt® Platform SaaS Agreement
Version 2021.6
PLEASE READ THIS AGREEMENT BEFORE USING NETVIRTA’S SERVICES. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH THE ONLINE ORDERING PROCESS FOR THE PURCHASE OF THE NV SERVICES THAT INCORPORATES THIS AGREEMENT (THE “ORDERING PROCESS”), YOU (THE “CLIENT” OR YOU) AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, YOU OR CLIENT AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN, IN SUCH EVENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE NV SERVICES. IF YOU SELECT THE “I ACCEPT” BUTTON OR OTHERWISE USE THE NV SERVICES, THIS AGREEMENT CONSTITUTES A BINDING CONTRACT AND AGREEMENT BETWEEN CLIENTYOU AND NETVIRTA.
This Verifyt® Platform SaaS Agreement (“Agreement”) is made between NetVirta, Inc., having its principal place of business at 53 State St., Suite 500, Boston, MA 02109 (“NetVirta”) and Client. NetVirta and Client are each a “Party” and together, they are referred to as the “Parties.”
WHEREAS, NetVirta provides the general public a smartphone application, the Verifyt® app (“App”), which enables consumers to generate 3D models (“3D Model”) of themselves via smartphones.
WHEREAS, NetVirta also provides businesses authorized access to a SaaS platform (“NV Services”) associated with the authorized transfer of certain data produced by the Verifyt® app in accordance with certain plan levels as offered during the Ordering Process (each a “Plan Level”);
WHEREAS, Client desires to access and use the NV Services in accordance with the Plan Level selected by the Client during the Ordering Process and NetVirta desires to provide Client with such access and use to the NV Services in accordance with Plan Level selected by the Client during the Ordering Process, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree:
The Verifyt® app: The App is a smartphone application published and maintained by NetVirta. The App includes the following standard features: (i) it generates a 3D Model of the consumer; (ii) it displays the scanned 3D model and the extracted measurements from the 3D Model (“Measurements”) of the consumer; and (iii) it requires the consumer to register a user account on the App (“Registration”) and to provide consent to NetVirta to create and store consumers data. (iv) it allows consumer to provide consent to NetVirta to facilitate transferring of authorized data to the Client.
NV Services: NV Services is comprised of the key components set forth hereinbelow which when used in conjunction with additional non-key components and the App provides a complete solution platform for Client. NetVirta may from time to time add functionalities to the NV Services. Client understands and acknowledges that not all NV Services are included in each Plan Level. Client should carefully review each Plan Level before completing the Ordering Process and placing its order.
Business Intelligence Portal (“BI Portal”): is a NetVirta-hosted secure website which can be accessed by Client via a web browser using NetVirta assigned Client-specific login credentials. BI Portal may include features such as “Account Management”, “3D Visualizer for Fullbody & Foot Scans”, “ISO & ASTM Measurements”, and “Dashboard Analytics”.
Connects with Verifyt® app (“Link”): is a smartphone specific link in the form of a QR code or a web-link. When clicked in a smartphone or QR-scanned by a smartphone, it brings the smartphone to the download page of the App in the app store. The Link is generated by NV Services.
Web Widget Integration (“Web Widget”): is a widget embedded in the Client’s website. If included in the Plan Level selected during the Ordering Process, it refers consumers to download the App by displaying a set of download instructions which may include the Link.
Application Programming Interface access (“API Access”): if included in the Plan Level selected during the Ordering Process, is an application programming interface that facilitates the Client’s automated retrieval of the data.
Size-recommendation Engine: if included in the Plan Level selected during the Ordering Process, is a backend software algorithm to provide size recommendations of the Client products based on the product information provided by Client and the 3D model of the consumers.
Access Rights: NetVirta hereby grants the following non-exclusive, non-transferable right to access and use only the NV Services included in the Plan Level selected during the Ordering Process during the Term, and solely for the uses in connection with 3D scanning properly Registered consumers and recommending the correct sizes of Client’s products to the consumers.
NetVirta grants Client right to access the BI Portal to use the features included in the Plan Level. NetVirta grants Client the right to use the Link.
NetVirta grants the Client the right to integrate Web Widget into the Client’s website, if included in the Plan Level selected during the Ordering Process.
NetVirta grants the Client the right to access the API Access if included in the Plan Level selected during the Ordering Process.
NetVirta grants the Client the right to access the outputs of the Size-recommendation Engine, if included in the Plan Level selected during the Ordering Process.
Restriction of Use: On behalf of itself and its affiliates, Client agrees:
Not to transfer the 3D Models downloaded from NV Services to any third party. Client agrees not to profit from the sale of the 3D Models downloaded from NV Services. The obligations contained in this clause survive expiration or termination of this Agreement for any reason.
Not to exploit the service by conducting 3D scanning on multiple persons using a single Registration.
Service Level Commitments: NetVirta guarantees that the NV Services will be accessible to Client at least 99.9% of the time during each Term (defined in Section 11), excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure, (c) malicious attacks on the NV Services, (d) issues associated with the Client’s computing devices or internet connections, or (e) inability to deliver services because of acts or omissions of Client. NetVirta reserves the right to take the NV Service offline for scheduled maintenance for which Client has been provided reasonable notice and NetVirta reserves the right to change its maintenance window upon prior notice to Client.
Client Responsibilities: Client agrees to provide feedback regarding the NV Services, and NetVirta is permanently licensed to use such feedback as it deems appropriate. Client agrees to use reasonable efforts, to share aggregated statistics in Client’s product return rate and conversion rate improvements as a result of adopting NV Services. Client is responsible for maintaining the security and confidentiality of all access credentials used to access NV Services. Client agrees to notify NetVirta immediately of any unauthorized use of such credentials or any other known or suspected breach of security.
Publicity: Either Party may publicly announce or publicize the relationship under this Agreement by press releases, website announcements, or other publicity, provided that each press release or other publicity is subject to the other Party’s approval, not to be unreasonably withheld or delayed.
Intellectual Property; Rights in Branding
“Intellectual Property” means proprietary or intellectual property rights and interests recognized by applicable law, including copyright, trademarks, service marks, patents, trade secret rights, moral rights, and other proprietary rights (whether or not these are registered and including any application for registration) and all rights or forms of legal protection of a similar nature.
Each Party retains all ownership rights in its own Intellectual Property. No ownership rights in Intellectual Property are granted by this Agreement; No rights or licenses are created by implication.
Client agrees that NetVirta is the sole owner of, and retains all right, title and interest in and to, the NV Services and any and all computer programs, computer code, graphics, text, images and other materials in whatever form used or supplied by NetVirta in connection with the NV Services and otherwise performing services or incorporated into the NV Services and other deliverables, which were developed, created or acquired by or on behalf of NetVirta, or controlled by NetVirta, prior to or after the Effective Date, including all Intellectual Property rights therein. NetVirta is the sole owner of, and retains all right, title and interest in and to, all parts of the NV Services, and all Intellectual Property acquired after the Effective Date or conceived, discovered, developed, generated, created, made or reduced to practice or fixed in a tangible medium of expression solely by employees or consultants of NetVirta at any time prior to the Effective Date or after the Effective Date.
Client agrees not to: (i) use or exploit the NV Services except as expressly authorized herein or to permit any third party to do so, (ii) decompile, disassemble, or reverse engineer the NV Services, or (iii) use or permit the use of the NV Services to design or create any product or program. Each Party retains all rights to its trademarks. Each Party grants the other Party a limited, non-exclusive and non-sublicensable license during the Term to display its branding for use in this Agreement solely for the purposes expressly set forth herein. Each Party agrees to provide reasonable branding Guidelines to the other Party, and each Party agrees to adhere to such branding Guidelines.
Confidentiality
“Confidential Information” means all non-public information in any form, whether or not tangible or visible, disclosed or communicated by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), or accessed by, or to which is disclosed to the other Party under this Agreement. Confidential Information includes, without limitation, configuration, code, interfaces, methods, algorithms, technical data, information relating to the financial affairs, assets or liability of a Party, or any information relating to the internal management of a Party, its personnel, policies, plans, strategies, clients, suppliers, products or services and information regarding the intellectual property or other proprietary information or materials of a Party. Confidential Information does not include information or material which: (i) is already publicly available, or becomes publicly available other than due to a breach of this Agreement by the Receiving Party; (ii) can be proven by written evidence to be already known by the Receiving Party other than through any disclosure under this Agreement; or (iii) is obtained from a source other than the Disclosing Party or any of its affiliates or authorized representatives, where that source is entitled to disclose it without an obligation of confidence to the Disclosing Party or its affiliate.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but never less than reasonable care) and will (i) not use or disclose any Confidential Information of the Disclosing Party except as provided in this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its affiliates or contractors who need that access for purposes consistent with this Agreement. All affiliates and contractors shall have executed written confidentiality obligations consistent with this Agreement prior to receiving any Confidential Information. Receiving Party will remain liable to Disclosing Party for unauthorized use or disclosure of Confidential Information by its affiliates and contractors.
Upon termination of this Agreement, each Party will cease use of the Confidential Information of the other Party and will either (i) return all of the other Party’s Confidential Information and all copies thereof in the Party’s possession or control to the other Party, or (ii) at the other Party’s instruction, destroy all Confidential Information and all copies thereof in the Party’s possession or control. The Party will then promptly certify the same in writing.
In case a Party receives a legal process that demands or requires disclosure of the Disclosing Party’s Confidential Information, such Party will notify the Disclosing Party within (no less than five (5) business days) of said demand, if legally permitted, to enable the Disclosing Party to challenge such demand and/or obtain a protective order or other legal relief.
The obligations contained in this clause survive expiration or termination of this Agreement for any reason.
Orders, Fees, Taxes and Payment
Orders. Client shall select one of the Plan Levels for the NV Services offered during the Ordering Process. All NV Services shall be governed exclusively by this Agreement.
Fees. Fees for each Plan Level are provided during the Ordering Process. All fees for each Plan Level are due and payable to NetVirta as provided in the Ordering Process for the Term selected for the applicable Plan Level during the Ordering Process. Fees for each Plan Level are exclusive of taxes.
Taxes. Client shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Client’s purchase and use of the NV Services, except for taxes based on NetVirta’s net income. NetVirta shall bill Client for applicable taxes as a separate line item on each invoice.
Payment. All payments are due and payable in United States dollars. Payment to NetVirta shall be made by credit card. NetVirta charges a 3% credit card transaction fee per transaction.
Term and Termination
The NV Services provided under this Agreement shall be provided for the Term selected during the Ordering Process, unless earlier suspended or terminated in accordance with this Agreement. The NV Services will auto renew for additional Terms in accordance with the originally selected Term, unless NetVirta provides Client written notice no later than thirty (30) days prior to the end of the applicable Term of its intention not to renew such NV Services. Client can terminate auto renewal of Term by selecting the cancel auto renewal Term feature in the BI Portal.
Client payment obligations are non- cancelable, and fees paid are non-refundable.
Fees will continue unchanged from the previous Term unless NetVirta notifies the Client in writing of changes in fees at least thirty (30) days prior to the expiration of each Term.
NetVirta, in its sole discretion, may suspend or terminate Client’s access to the NV Services if Client has failed to comply with clause 4 (Restriction of Use).
If Client fails to make payment within the four (4) weeks after payment is due, NetVirta has the right to suspend or terminate Client’s access to the NV Services.
During the Term, either Party may terminate this Agreement immediately for the other Party’s uncured material breach that is not cured within thirty (30) days, after the breaching Party’s receipt of written notice specifying the breach in detail.
Upon termination of this Agreement for any reason, all rights granted to Client shall immediately terminate, and the Client shall cease using the NV Services. Client will promptly pay any remaining fees due through the date of termination. The following clauses and provisions will survive termination: 4, 8, 9, 11, 12, and 13, along with accrued obligations.
Disclaimers and Exclusions
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH IN THIS AGREEMENT, NEITHER PARTY WARRANTS THAT THE SERVICES, PRODUCTS OR TECHNOLOGIES SUPPLIED HEREUNDER (INCLUDING THE NV SERVICES) WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE BUSINESS RESULTS THAT THE OTHER PARTY MAY OBTAIN BY REASON OF THIS AGREEMENT.
Except with regard to (i) provisions regarding confidentiality or (ii) copying, access to, use or disclosure of the NV Services or the Parties’ respective intellectual property that is unauthorized by this Agreement, neither Party will be liable for loss of anticipated or actual profits, earnings or revenue, loss of business opportunities, goodwill or contracts, lost savings, lost data, substitute or replacement solutions or technology, or other incidental, consequential, punitive, special, or exemplary damages.
Except with regard to (i) fees due and other amounts payable to NetVirta as provided for herein, (ii) provisions of this Agreement regarding confidentiality, or (iii) copying, access to, use or disclosure of the NV Services or the Parties’ respective intellectual property that is unauthorized by the terms of this Agreement, in no case will either Party be liable in the aggregate for any amount in excess of the amounts paid or payable to NetVirta under this Agreement during the twelve (12) month period before the claim arose.
General
Governing Law. This Agreement will be governed in all respects by the laws of the State of Delaware as they apply to agreements entered into and to be performed entirely within Delaware, without regard to conflict of law provisions.
Compliance with Laws. NetVirta shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the NV Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data
No Third Party Beneficiaries. Except as specifically identified in this Agreement, nothing in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations, or liabilities whatsoever.
Force Majeure. Neither party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions, natural disasters, acts of terrorism or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable. In the event any failure to perform because of a force majeure event remains uncured for a period of sixty (60) days, the other party may terminate this Agreement, without liability, by providing written notice to the other party. In no event shall a force majeure event excuse payment of any fees due hereunder.
Assignment. Neither party may assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the nonassigning party (which will require written consent from the nonassigning party), either party may assign this Agreement without obtaining the consent of the other party, to an affiliate or to any entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
Dispute Resolution. Except with respect to (i) intellectual property rights and (ii) Confidentiality Information, if a dispute arises between the Parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the Parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.
No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other provision of this Agreement. All waivers must be in writing and signed by the party waiving its rights.
Notices. All notices or other communications that are required or permitted under this Agreement must be in writing and will be sufficient if delivered personally or sent by nationally-recognized overnight courier or by certified mail, postage prepaid, return receipt requested, to the address of NetVirta set forth at the beginning of this Agreement, to the address of Client as provided in the Ordering Process, or to any other address provided in accordance with this section.
Severability. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.
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