METAVERSE TECHNOLOGIES FRANCE
GENERAL TERMS & CONDITIONS FOR PiXYZ SOFTWARE STORE
Last updated – May 5th 2017
PLEASE READ THE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.
CLICKING THE “I AGREE” BUTTON FOR DOWNLOADED SOFTWARE, OR BREAKING THE SEAL OR OPENING THE SLEEVE OF THE CD-ROM OR DVD-ROM OR MEMORY CARD FOR PRE-INSTALLED SOFTWARE, OR USING THE SOFTWARE OR COPYRIGHT WORKS MEANS THAT YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE CONSUMER, YOU UNDERSTAND AND AGREE THAT BY DOWNLOADING ANY SOFTWARE IMMEDIATELY AFTER ACCEPTING THIS AGREEMENT, YOU ARE HEREBY LOSING YOUR WITHDRAWAL RIGHT.
Your Use of the Software is subject to your acceptance of these General Terms and Conditions as well as your acceptance of additional terms and conditions. The Agreement incorporates by reference the following documents: (i) these General Terms and Conditions containing the general terms and conditions applicable to all Metaverse Technologies Software; (ii) the Specific Terms and Conditions containing the additional terms for the particular Software or Copyright Work you are licensing and related fees, (iii) any Third Party Licenses governing the use of certain third party software which might be embedded in the Software you are licensing under the Agreement. When the term “Agreement” is used in any of these documents, Metaverse Technologies France is referring collectively to all of them i.e. to (i), (ii) and (iii) above. The Agreement is effective as of the date You accept the Agreement as part of Metaverse Technologies France online licensing process through “www.pixyz-software.com” website.
In the event of a conflict between the terms set out in these General Terms and Conditions and the terms set out in the Specific Terms and Conditions, the terms of these General Terms and Conditions shall prevail unless expressly stated otherwise in the Specific Terms and Conditions.
In this Agreement, capitalized terms shall have the meaning ascribed to them in this Section 1 or elsewhere in this Agreement.
“Agreement” includes (i) these General Terms and Conditions, (ii) the Specific Terms and Conditions and (iii) the Third Party Licenses which are incorporated hereto by reference.
“Commercials Terms” means the Fees payable by You as set out on the Metaverse Technologies website (pixyz-software.com), quotes, invoices, price list, or applicable Specific Terms and Conditions as the case might be, for You Use of the Software.
“Metaverse” means “Metaverse Tehcnologies France”, a french limited liability company which is developer and sole owner of the Software, subject to third party’s rights into the Software.
“Commercial Terms” means the Fees payable by You as set out on the Metaverse Website, quotes, invoices, price list, or applicable Specific Terms and Conditions as the case might be for the use of the Software.
“Fee” shall mean any fee, cost and expense as set out in the Commercial Terms that are payable for Your Use of the Software.
“Intellectual Property Rights” means any current and future intellectual property rights, including copyrights, trademarks, trade names, business names, domain names, design rights, inventions, confidential information, trade secrets and know-how including commercial know-how, patents, utility models, database rights, and all similar or analogous proprietary rights of whatever nature and in each case in any part of the world and whether or not registered or registrable including, in relation to the above, all granted registrations and all applications for registration and any renewals, reversions, and extensions.
“Legal Entity” means any company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, proprietorship, joint venture or other form of business organization, and includes, without limitation, any government, non-for-profit, educational or academic institution, including but not limited to any primary or secondary school, vocational school, college or university.
“Consumer” means an individual person acquiring the Software for purposes which are outside of that individual’s trade, business, craft or profession, and that such individual is not making any Commercial Use of the Software.
“Documentation” means the user manuals, instructions and tutorials for the Software owned by Metaverse that Metaverse generally makes available to its end-user customers.
“License” shall mean the limited right to Use the Software as further detailed in these General Terms and Conditions and in the applicable Specific Terms and Conditions.
“Evaluation Software” means a limited version of the Software, which is licensed to You under an Evaluation License.
“Evaluation License” means a License granted to the User for the Evaluation Software for the Evaluation Term, to enable the User to evaluate the Software in connection with the User’s internal business purposes to determine whether to purchase the non-evaluation version of the Software. Commercial Use, publishing or redistribution of the Software is strictly forbidden under an Evaluation License.
“Evaluation Term”, means a limited duration, generally of seven (7) days unless agreed expressly otherwise by Metaverse, during which the Evaluation Software may be Used by You under the Evaluation License.
“Floating License” means a License for the Software for Use of the Software by several individual Users simultaneously on any number of computers provided that a License for each such individual User has been purchased. Such Floating License is not available on PiXYZ Software website and must be subscribed separately by contacting Metaverse directly.
“Indie License” means a License to Use the Software granted to commercial Legal entity with annual gross revenue not exceeding US$ 100,000 (or an equivalent amount in another currency) during the prior fiscal year.
“Pro License” means a License to the Software granted (i) to either a professional user or a commercial Legal entity or (ii) an educational, academic, non-for-profit or government Legal Entity, with annual revenues exceeding US$ 100,000 (or an equivalent amount in another currency) during the prior fiscal year.
“Non-Commercial Use” means Your Use of the Software for all purposes in compliance with the terms of this Agreement but excludes expressly all Commercial Use. This type of license is granted to an educational, academic, non-profit or government Legal Entity, or student individual.
“Professional User” means a User making any Commercial Use of the Software, provided that such User may be subscribing to an Indie License or a Pro License.
“Software” means the Metaverse software product, licensed to You under the Specific Terms and Conditions that Metaverse and You entered into.
“Specific Terms and Conditions” means the specific terms and conditions containing the additional terms including the applicable Fees if any, governing Your Use of a particular Software.
“PiXYZ Store” means the proprietary on-line store owned and operated by Metaverse from which a User may purchase the Software and any other products and services that Metaverse distributes from time to time.
“Term” means the duration of the License granted to You under the Agreement as set out in Section 10.1 of the General Terms and Conditions.
“Third Party Licenses” means the terms and conditions of any third party software which is embedded in the Software.
“Use” means the loading, installation and use of the Software in accordance with the terms of the Agreement.
“User” means an individual person who is authorized by Metaverse to Use the Software.
“You” means the User or the Legal Entity Using the Software as licensee.
“Your” means relating to You or made or done by You.
2. CONDITION PRECEDENT TO THE LICENSING OF ANY SOFTWARE
You must accept the Specific Terms and Conditions applicable to a particular Software to be entitled to Use any Software. Your acceptance of these General Terms and Conditions alone does not grant you a right to Use any Software. Furthermore, Your acceptance of the Specific Terms and Conditions for a particular Software does not automatically grant You a right to Use other Software unless and until You accept the Specific Terms and Conditions applicable to the particular Software you intend to Use.
3. GENERAL RESTRICTIONS APPLICABLE TO THE SOFTWARE
With respect to the Software and except as expressly permitted under the Agreement:
3.1 You shall not, and shall not assist, enable or otherwise permit or allow any third party to: (i) copy (except in the course of loading or installing), alter, adapt, modify, translate, create derivative works of the Software, (ii) decompile, disassemble or otherwise reverse engineer or attempt to derive the source code of (unless expressly permitted under applicable law) or any technical data, know-how, trade secrets, processes, techniques, specifications, protocols, methods, algorithms, interfaces, ideas, solutions, structures or other information embedded or used in the Software, (iii) rent, lend, loan, lease, sell, encumber, distribute, sublicense, or otherwise permit use of or access to the Software by third parties, (iv) remove, alter, or obscure any proprietary or restrictive notices affixed to or contained in the Software, (v) circumvent or attempt to circumvent any technological protective measure contained in or supported by, the Software; or any copy, portion, extract or derivative thereof, (vi) Use the Software in any manner that violates any applicable law or regulation whether local, national or international, (vii) Use the Software in any manner that violates any Intellectual Property Rights or privacy rights of Metaverse Technologies or any third party.
3.2 You shall not (i) provide, disclose, display or otherwise make available the Software or any copy, portion, extract or derivative thereof, or permit use of any of the foregoing by or for the benefit of multiple users or any third party, including, without limitation, by uploading the Software to a network or file-sharing service time-sharing, or subscription service basis, on a hosting, cloud, service-bureau, or for carrying out any third party administrative, outsourcing, or other services), (ii) do anything that could cause or result in the Software being subject to any open source license (or similar license) that requires as a condition of use, modification or distribution of the Software including the run-time portion thereof; and specifically that would entail the Software to be: (A) disclosed or distributed in source code form, (B) licensed for the purpose of making derivative works, or (C) redistributable at no charge; and (iii) Use the Software to develop a competing software.
4. USE OF THE SOFTWARE
4.1 Software License Terms
Subject to the terms and conditions of the Agreement including the applicable Specific Terms and Conditions for a particular Software, and Your compliance therewith including Your payment of all Fees payable if any, Metaverse grants You, for the Term of this Agreement, a limited, non-exclusive, personal, non-transferable, non-sublicenseable, revocable License, solely to install and execute one (1) copy of the executable form of the Software, solely for Your internal Use by a single User, for the purpose of developing Your Licensee Content.
The License for the Software grants You the right to get access to the Documentation specific to the Software You are licensing.
The Software shall be provided to You in object code. In no event shall the source code of the Software be made available to You.
4.2 One Copy per User
Each User of the Software must hold one (1) valid License of the Software. The License may only be installed once on one (1) computer by the User.
4.3 Floating License
If You wish to Use any particular Software simultaneously on different computers, You must purchase a Floating License for each individual User Using the Software at any one time. You may install such Software on as many computers as needed for Use by any authorized User provided that there is one (1) license per concurrent individual User. The terms of such Floating license are not available online but they may be provided to You upon request to Metaverse.
The SOFTWARE is protected by an anti-copy technical device in the form of a digital key (hereafter referred as “KEY”). This KEY is generated according to the technical features of the machine on which the Software will be used. Without this KEY, the Software cannot be used. The User who wants a new KEY because of any change of computer may send a written request to Metaverse attesting that the Software is not used anymore on the previous computer, with a copy of the identification document (ID card, passport) of the signatory of the statement, and not more than two (2) times per calendar year.
License for PiXYZ REVIEW is purchased for one year, and is not automatically renewed (credit card informations are not stored). To renew Your License, you may connect to your PiXYZ Software account and go to the LICENSE MANAGEMENT tab. At the end of the renewal purchasing process, the License duration will be extended for one (1) additional year (including current remaining days).
5. INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE
5.1 You acknowledge and agree that the Software is licensed to You only and in no event can the Software be considered as being sold to You.
5.2 You acknowledge and agree that Metaverse (or their licensors or other third party as applicable) own and shall retain all right, title and interest in and to the Software (including without limitation any copies, portions, extracts or derivatives thereof, and any developments, modifications or enhancements thereto) including all Intellectual Property Rights.
5.3 Further, in the event that You provide to Metaverse any comments, suggestions, submissions, and other feedback (whether oral, in writing, or in electronic or any other form) with respect to the Software or the Metaverse Copyright Work (together “Feedback”), You hereby irrevocably agree to grant Metaverse all the Intellectual Property Rights in such Feedback.
5.4 You acknowledge and agree that (i) the Software and the Metaverse Copyright Works are original in whole and in any element thereof, alone or combined, including algorithms, interfaces, functionality, screen design, and other elements thereof, and (ii) based on the Berne Convention for the Protection of Literary and Artistic Works as well as the French Intellectual Property Code, and other applicable Intellectual Property Rights laws and treaties, Metaverse is the owner of the Software.
5.5 You agree that You will not delete or in any manner alter any Metaverse or third-party copyright, trademark or other proprietary notices appearing on or in the Software or the Copyright Work.
6. FEES AND TAXES
Where applicable, You agree to pay all amounts due for the Software as set forth in the applicable Specific Terms and Conditions, online stores, quote and/or invoice. All Fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. You will be responsible for, and will promptly pay all taxes including but not limited to sales, use and withholding taxes associated with this Agreement and/or Your receipt or Use of the Software, except for taxes based on Metaverse net income, if any. In the event that Metaverse is required to collect any tax for which You are responsible, You will pay such tax directly to Metaverse. If You pay any withholding taxes that are required to be paid under applicable law, You will promptly provide Metaverse with written evidence from tax authorities of the payment of such taxes.
7. MODIFICATION OF THE GENERAL TERMS AND CONDITIONS OR THE SPECIFIC TERMS AND CONDITIONS
Metaverse may revise the General Terms and Conditions and the Specific Terms and Conditions (the “Terms” for the purpose of this Section 7) at any time for legal, best practice or any other reason. Metaverse will not use this right to make substantial changes to the Terms to Your detriment without giving You a chance to agree. Metaverse will inform You in advance of any revision of the Terms by sending an email to You.
If You do not agree to the changes made to the Terms, You may terminate any License. You are expected to check for revisions to the Terms regularly as they are binding on You. Any subsequent Use by You of any Software or Copyright Works after a change in the Terms shall imply that You accepted the revised Terms.
8. CONSENT TO DATA COLLECTION
You understand and agree that the Software may connect to the Internet and report information about your Use back to Metaverse to (i) check for Software updates; (ii) provide aggregated usage statistics of Your Use of the Software; and (iii) validate or block license keys in order to prevent unauthorized Use.
In the event You have a query about the Software, You may contact Metaverse support team by email at the address provided on the Metaverse website (www.pixyz-software.com).
10. TERM AND TERMINATION
10.1 Duration of the Agreement
All Evaluation License for the Evaluation Software shall be effective for a period of 7 days from the date You downloaded the Evaluation Software, unless otherwise agreed expressly between Metaverse and You.
Unless expressly provided otherwise in the applicable Specific Terms and Conditions, all subscription Licenses which are subject to the payment of recurring Licenses Fees shall be effective from the date You downloaded the Software, and will stay in force for as long as You are current with the payment of the License Fees.
Unless expressly provided otherwise applicable Specific Terms and Conditions, all paid-in full Licenses for any Software granted under the Agreement shall be effective for the duration of the applicable legal copyright protection, unless earlier terminated in accordance with the Agreement.
10.2 Consequences of Termination
In the event You breach this Agreement including if You fail to pay the Fees where applicable, this Agreement shall automatically terminate in its own right and Metaverse shall be under no obligation to provide a prior notice thereof.
Upon termination of the Agreement, You shall, at Metaverse’s option, either promptly delete and destroy, or return to Metaverse all copies of the Software in Your possession or control. Metaverse may also disable the Software upon the expiration of any License.
All provisions in connection with the Intellectual Property Rights in the Software or the Copyright Work shall survive the termination of this Agreement.
11. NO WARRANTY
THE SOFTWARE IS PROVIDED TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. METAVERSE 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. METAVERSE FURTHER DOES NOT WARRANT THAT THE SOFTWARE WILL ALWAYS FUNCTION UNINTERRUPTED OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM METAVERSE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. LIMITATION OF LIABILITY
METAVERSE AND ITS LICENSORS’ TOTAL LIABILITY TO YOU ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE CAUSE OF ACTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT PRODUCT LIABILITY), INDEMNITY, OR OTHERWISE AND WHETHER OR NOT METAVERSE OR ITS LICENSORS HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND EVEN IF SUCH DAMAGES WERE FORESEEABLE WILL BE LIMITED TO THE GREATER OF THE AMOUNTS PAID BY YOU FOR THE SOFTWARE. IN NO EVENT SHALL METAVERSE TECHNOLOGIES OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE OR THE COPYRIGHT WORK, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 10, METAVERSE TECHNOLOGIES AND ITS LICENSORS LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13.1 The Software and the Metaverse Copyright Works and any copies, portions, extracts and derivatives thereof (including the source code of, or any technical data, know-how, trade secrets, processes, techniques, specifications, protocols, methods, algorithms, interfaces, ideas, solutions, structures, technical architecture or other information embedded or used in any of the foregoing) and any other non-public information and technology disclosed by Metaverse to You in connection with this Agreement constitutes the confidential information of Metaverse (the “Metaverse Confidential Information”). You shall hold the Metaverse Confidential Information in strict confidence and shall not disclose it to any third party except to Your designees who need to have access to it and who are bound in writing by confidentiality obligations at least as protective of the Metaverse Technologies Confidential Information as those contained herein. You shall not use the Metaverse Confidential Information for any purpose other than as necessary for Your Use of the Software as expressly authorized in this Agreement. You shall exercise the same care that You exercise to protect Your own confidential and proprietary information of similar importance.
13.2 In the event Metaverse receives confidential information from You, Metaverse undertakes to hold Your confidential information in strict confidence and not to use Your confidential information, except in connection with (i) the performance of this Agreement or (ii) Your Use of the Software. In addition, when providing Your confidential information to Metaverse, you shall mark all Your confidential information as “confidential” or “proprietary”.
13.3 The obligations of each party set forth above shall not apply to confidential information to the extent that the receiving party can prove that it:
15.3.1 was already in its possession without confidentiality or use restrictions prior to its disclosure by or on behalf of the disclosing Party; or
15.3.2 is subsequently disclosed to the receiving party without any confidentiality or use restrictions by a third party; or
15.3.3 is in the public domain or subsequently comes into the public domain through no act or omission of the receiving Party or its agents or employees; or
15.3.4 is required by law or a valid order by a court or other government body, provided, however, that the receiving Party promptly informs the disclosing Party in writing upon becoming aware of the relevant legal requirements.
14. EXPORT LAW
You agree to fully comply with all applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or Used for any purposes prohibited by, such laws and regulations.
15. AUDIT RIGHT
Upon Metaverse reasonable prior written notice to You, You shall permit Metaverse or its designees to audit from time to time Your Use of the Software. You shall provide reasonable assistance to Metaverse its designees in the event such audit is conducted.
16. GOVERNING LAW AND JURISDICTION
16.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF FRANCE, WITHOUT REGARD TO OR APPLICATION OF CONFLICT OF LAWS RULES OR PRINCIPLES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY.
16.2 JURISDICTION. FRENCH COURTS OF COMPETENT JURISDICTION SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY DISPUTE REGARDING THE EXISTENCE, VALIDITY OR TERMINATION THEREOF, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
17.1 You understand and agree that money damages alone might not be an adequate remedy and as such Metaverse shall have the right to seek injunctive relief in any court of competent jurisdiction.
17.2 You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Metaverse prior written consent, and any attempt by You to do so, without such consent, will be void.
17.3 Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
17.4 All notices required or permitted under this Agreement shall be in writing. All notices to You might be either in the form of an electronic mail or by registered mail with acknowledgement receipt. All notices to Metaverse shall be sent by registered mail with acknowledgement receipt to Metaverse registered office or otherwise to the address set forth in the applicable ordering document or invoice or to such other address as may be specified by Metaverse.
17.5 Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.
17.6 If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
17.7 This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless You and Metaverse have executed a separate agreement governing Your Use of the Software.
17.8 Translations. The English language version of this Agreement is legally binding in the event of any conflict between the English version and any translations.
17.9 Any terms or conditions contained in Your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Metaverse and will be deemed null.
18. EXCEPTIONS FOR CONSUMER USERS
18.1 If You are a Consumer and You acquire the Software, for your direct individual Use and do not make any direct or indirect Commercial Use of the Software then be advised that certain Sections of these General Terms and Conditions shall not be applicable to You i.e. Section 11 (No warranty), Section 12 (Limitation of liability), Section 16.2 (Jurisdiction), Section 18.8 (Translations).
18.2 Right for Consumers to withdraw from the Agreement
19. RIGHT OF WITHDRAWAL
If You downloaded a specific Software after accepting the applicable Specific Terms and Conditions, You shall not be entitled to Your withdrawal right under applicable law provided that the right of withdrawal available to Consumers which may be exercised by You within 14 days from the date of conclusion of the contract, does not apply to contracts for the supply of digital content if (i) the digital content is not provided on a tangible medium and (ii) the contract performance started through the act of downloading by the Consumer, with the consumer’s prior express consent and the consumer’s acknowledgment that s/he lost his/her withdrawal right. Therefore, You hereby understand and agree that by downloading the Software and being granted instantaneous access to such digital content, You have lost Your withdrawal right.