ModelFoundry Terms of Service

Effective Starting: 9 July 2017

Your acquisition and use of ModelFoundry's products, software, services and websites (collectively referred to as "Services") is subject to the terms of this legal Agreement ("Agreement") between you and ModelFoundry Pty Ltd (ABN 811 694 002 84) ("ModelFoundry", ("us", "we", or "our").

If you are agreeing to this Agreement on behalf of your company, educational institution or other legal entity, then "you" means your company or educational institution and you are binding that Party to this Agreement.

You must accept this Agreement to use the Services. You can accept the Agreement by:

  • clicking on the "I agree" (or similar button) that is presented to you at the time of creating your account; and/or
  • by using or accessing ModelFoundry Services, you will have entered a legally binding Agreement with ModelFoundry henceforth for your use of Services.

You may not use the Services and may not accept the terms if:

  • you are not of legal age (unless you are part of an education account);
  • you are barred from using the Services under the law of Australia or other countries where you are a resident or from which you use the Services.

By purchasing an education account, educational entities agree to:

  • abide by this Agreement; and
  • provide access to ModelFoundry only to those individuals employed by the entity or are enrolled as students at the entity.

You may not access the Services if you are our direct competitor, except with our prior written consent.

You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

You should print or save a copy of this Agreement for your records.

1. Scope of the Agreement

This Agreement governs:

  • ModelFoundry's hosted or cloud-based solutions ("Hosted Services");
  • documentation related to Software and Hosted Services ("Products"); and
  • any related support or maintenance services provided by ModelFoundry.

This Agreement includes our Privacy Policy, our Acceptable Use Policy and any other referenced policies and attachments.

This Agreement does not apply to add-ons or plugins from third parties.

2. Definitions

"Account" means a User's ModelFoundry account.

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

"Authorized User/s" means specific individuals for whom you have paid the required fees to access and use the Services. They may be your employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf.

"Beta Versions" means a version of a piece of software that is made available for testing, typically by a limited number of users outside the company that is developing it, before its general release.

"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

"Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a Third Party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Your Data is considered User's Confidential Information.

"Content" means any models, templates, images or text that we offer to you through the Software specifically for the purposes of creating Model Products.

"Documentation" means the ModelFoundry documentation (as may be updated from time to time) in the form generally made available by ModelFoundry to its customers for use with the Services.

"Fees" means the applicable fees for each Service and any applicable Taxes.

"Hosted Services" means services offered to you by a ModelFoundry through a direct network connection that may or may not run via the Internet.

"No Charge Products" means products that have been offered to you at no charge such as free accounts, trial use, and access to Beta Versions.

"Services" means software that is licensed on a subscription basis and is centrally hosted.

"Software" means the 'ModelFoundry™' app, the 'Modeling Software' that we make available to you from the Website, or from an authorised reseller, together with any and all licensed Third Party software (including underlying object code and/or source code) embodied in the 'Modeling Software' and also includes any material and services that we provide in connection with that software.

"Subscription" means you can purchase or subscribe to ModelFoundry's Services for a specific period of time for a set price.

"Subscription Term" means the number of months that you have paid to use the services.

"Third Party" means a person or group besides the two primarily involved in a situation or dispute.

"Your Data" means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services.

3. Our Responsibilities

3.1 Provision of Purchased Services

We Will:

  • make the Services and Content available to you in accordance with this Agreement and applicable subscriptions; and
  • use commercially reasonable efforts to make online Services available 24 hours a day, 7 days a week except for planned downtime, any unavailability caused by circumstances beyond our reasonable control, internet service provider failure or delay, a non-ModelFoundry application or denial of service attack.

3.2 Protection of Your Data

We will maintain safeguards for protection of Your Data as described in the Privacy Policy.

3.3 Our Personnel

We will be responsible for the performance of our personnel, employees and contractors and their compliance with our obligations under this Agreement.

4. Modifications

4.1 To the Services

We may make commercially reasonable updates to the Services from time to time.

If we make a material change to the Services, we will inform the Authorized User about such change.

4.2 To the Agreement

We may make changes to this Agreement, including pricing (and any linked documents) from time to time.

Unless otherwise noted by ModelFoundry, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately.

If the Authorized User does not agree to the revised Agreement, they must stop using the Services.

5. Your Use of Services and Content

5.1 Subscriptions

Unless otherwise stated, Services and access to Content are purchased as subscriptions.

Subscriptions can be added at any time during the subscription term at the current price.

You may stop using the Services at any time by terminating your subscription as described in Section 7 "Service Terms" below.

5.2 Purchased Services

You acknowledge and Agree that:

  • the form and nature of Services provided by ModelFoundry may change from time to time without prior notice to you; and
  • ModelFoundry may stop (permanently or temporarily) providing the Services (or features within) to Authorized Users at ModelFoundry's discretion without prior notice.

5.3 Usage Limits

Services and Content are subject to usage and feature limits specified in subscription forms and Documentation.

Unless otherwise specified, the Service or Content may not be accessed by more than the number of Authorized Users allowed for that subscription.

You may increase the number of Authorized Users for your subscription directly through ModelFoundry and must pay the applicable fee for the increased number of Authorized Users.

We do not currently set transmission or storage limits for use of any Service. We may, however, impose new, or may modify existing, storage limits for the Services at any time in our discretion, with or without notice to you. These limits are described in the services descriptions on our websites or in the Documentation.

5.4 Your Responsibilities

You will be responsible for:

  • using Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws regulation, generally accepted practices or guidelines;
  • Authorized Users' compliance with this Agreement, Documentation and subscriptions;
  • the accuracy, quality and legality of Your Data and how You acquired Your Data;
  • using commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify us promptly of any such unauthorized access or use;
  • complying with terms of service of any Third Party applications with which you use Services or Content; and
  • for education accounts, you agree that educational institutions and school districts are responsible for all user content, communications and activity that occur under individual user accounts.

5.5 Usage Restrictions

You agree not to:

  • make any Service or Content available to anyone other than you or Authorized Users;
  • share your password with any other individual;
  • rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense or transfer any Service or Content;
  • use Services for the benefit of any Third Party;
  • interfere with any license key mechanism in ModelFoundry or otherwise circumvent mechanisms in ModelFoundry intended to limit your use;
  • reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs;
  • remove or obscure any proprietary or other notices contained in any Services;
  • publicly disseminate information regarding the performance of Services;
  • access (or attempt to access) any of the Services by any means other than the interface provided by ModelFoundry (unless specified in a separate agreement between you and ModelFoundry), or through any automated means and comply with instructions set in any robots.txt file present on the Services;
  • engage in activity that interferes with or disrupts the Services, its servers or networks;
  • reproduce, duplicate, copy or attempt to create a substitute or similar service unless permitted to do so in a separate agreement; and
  • use the Services to store or transfer any data that is controlled or subject to special processing restrictions.

6. Pricing and Payment for Services

6.1 Pricing

Pricing for all subscriptions tiers are as stated on the ModelFoundry website. ModelFoundry reserves the right to modify pricing at any time and will notify Authorizes User by email prior to any price increase affecting that account.

Subscription can be paid on a monthly or annual basis.

All payments are non-cancellable, non-refundable and non-creditable.

6.2 Payment

Subscription Fees are due at the beginning of the month or year for which Services will be provided to you.

All payments due in the currency stated on the subscription pricing page.

You may choose to discontinue your paid subscription at any time; however, ModelFoundry does not issue refunds for unused subscription periods.

You agree to maintain valid and up-to-date billing information on file with ModelFoundry by updating information in your account.

6.3 Taxes

You are responsible for any taxes, duties, and customs fees associated with your purchase of Services (other than ModelFoundry’s income tax) (collectively "Taxes").

You will pay ModelFoundry for the Services without any reduction for Taxes.

7. Services Terms

7.1 Access to Hosted Services

ModelFoundry grants you a non-exclusive right to access and use the Hosted Services and Our Content during the applicable Subscription Term in accordance with this Agreement, the Acceptable Use Policy and Documentation.

If ModelFoundry offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement.

You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.

7.2 Subscription Terms and Renewals

Hosted Services are provided on a subscription basis for a Subscription Term.

Except as otherwise specified, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account.

If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

If you wish to change your subscription level or term, the Authorized User must change the settings in the account provided as part of the Services. If you upgrade to a higher paid subscription, ModelFoundry will credit any remaining balance from your previous subscription payment to your new subscription.

Also read Section 5 "You Use of Services and Content".

7.3 Credentials

You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person.

You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify ModelFoundry of any unauthorized use of which you become aware.

7.4 Your Data

You will retain all right, title and interest in and to Your Data in the form provided to ModelFoundry. Subject to the terms of this Agreement, you hereby grant to ModelFoundry a non-exclusive, worldwide, royalty-free right to:

  • collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you; and
  • for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service.

ModelFoundry may also access your account in order to respond to your support requests.

7.5 Security

We implement security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks.

We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized Third Parties will never be able to defeat our security measures or those of our Third Party service providers.

7.6 Storage Limits

We do not currently set storage limits for use of any Service. We may, however, impose new, or may modify existing, storage limits for Services at any time in our discretion, with or without notice to you. These limits are described in the services descriptions on our websites or in the Documentation.

8. Responsibility for Your Data

8.1 General

You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations.

You agree that:

  • you have obtained all necessary rights, releases and permissions to provide all Your Data to ModelFoundry and to grant the rights granted to ModelFoundry in this Agreement;
  • your Data and its transfer to and use by ModelFoundry as authorized by you under this Agreement do not violate any Laws or rights of any Third Party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies; and
  • other than its security obligations under "Security", ModelFoundry assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

8.2 Sensitive Data

You will not submit to the Hosted Services:

  • any personally identifiable information, except as necessary for the establishment of your ModelFoundry account;
  • any patient, medical or other protected health information regulated by federal or state laws, rules or regulations;
  • data that requires special handling; and/or
  • any other information subject to regulation or protection under specific laws.

You acknowledge that ModelFoundry is not acting as your Business Associate or subcontractor, and that ModelFoundry has no liability under this Agreement for sensitive data.

8.3 Indemnity for Your Data

You will defend, indemnify and hold harmless ModelFoundry from and against any loss, cost, liability or damage for which ModelFoundry becomes liable arising from or relating to any claim relating to Your Data.

8.4 Removals and Suspension

We have no obligation to monitor any content uploaded to the Hosted Services. If such action is necessary due to your violation of this Agreement, we may remove Your Data from the Hosted Services or suspend your access to the Hosted Services.

8.5 Deletion at End of Subscription Term

We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.

9. Confidential Information

9.1 Obligations

The recipient will not disclose the Confidential Information, except to employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential.

The recipient will ensure that those people and entities use the received confidential information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to keep it confidential.

9.2 Required Disclosure

Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to:

  1. promptly notify the other party of such disclosure before disclosing; and
  2. comply with the other party's reasonable requests regarding its efforts to oppose the disclosure.

Despite the above, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could:

  • result in a violation of legal process;
  • obstruct a governmental investigation; and/or
  • lead to death or serious physical harm to an individual.

The Authorized User is responsible for responding to all Third Party requests concerning its use of the Services.

10. No-Charge Products

We may offer certain Services to you at no charge, including free accounts, trial use, and access to Beta Versions. Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us.

You may not use No-Charge Products for competitive analysis or similar purposes.

We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you.

You understand that any pre-release and beta products we make available are still under development, incomplete and are likely to contain more errors and bugs than generally available Products.

We disclaim all obligations or liabilities with respect to No-Charge Products, including any support and maintenance, warranty, and indemnity obligations.

11. Ownership and Feedback

You agree that:

  • services are made available on an access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase" or "sale";
  • ModelFoudnry retains all right, title and interest, including all intellectual property rights, in and to the Services (including all No-Charge Products), their "look and feel", any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for ModelFoundry, including without limitation as they may incorporate feedback;
  • ModelFoundry may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise;
  • no Feedback will be considered your confidential information, and nothing in this Agreement limits ModelFoundry's right to independently use, develop, evaluate, or market products, whether incorporating feedback or otherwise; and
  • we may identify you as an ModelFoundry customer in our promotional materials. You may request that we stop doing so by submitting an email to corporate@modelfoundry.com at any time. Please note that it may take us up to 30 days to process your request.

12. Term and Termination of This Agreement

12.1 Agreement Term

This Agreement commences on the date you first accept it and continues until all Subscriptions have expired or been terminated.

12.2 Termination

Either party may terminate this Agreement:

  • upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; and/or
  • if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.

You may terminate this Agreement at any time but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid Hosted Services Subscriptions.

Once the Agreement terminates, Authorized Users will no longer have any right to use or access any Services, or any information or materials that we make available to you under this Agreement.

12.3 Your Data Portability and Deletion

Upon request made by You within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to you for export or download as provided in the Documentation.

After such 30-day period, we will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in our systems or otherwise in our possession or control, unless legally prohibited.

13. Representations and Warranties

Each party represents and warrants that:

  • it has full legal power and authority to enter into this Agreement;
  • if you are an entity, this Agreement is entered into by an employee or Affiliate of such party with all necessary authority to bind such party to the terms and conditions of this Agreement; and
  • it will comply with all laws and regulations applicable to its provision, or use, of the Services as applicable.

14. Disclaimer

EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NONINFRINGEMENT. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NEITHER PARTY RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER PARTY WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

15. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE UNDER THIS AGREEMENT FOR LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO BREACHES OF CONFIDENTIALITY OBLIGATIONS, VIOLATIONS OF A PATY’S INTELLECTUAL PROPERTY RIGHT BY THE OTHER PARTY, INDEMNIFICATION OBLIGATIONS, OR CUSTOMER’S PAYMENT OBLIGATIONS.

16. Indemnification

16.1 By User

Unless prohibited by applicable law, the Authorized User will defend and indemnify ModelFoundry and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from:

  • any Application, Project, Instance, Customer Data or Customer Brand Features; or
  • Authorized Users' use of the Services in violation of the Acceptable Use Policy.

16.2 By ModelFoundry

ModelFoundry will defend and indemnify Authorized Users and their Affiliates against Indemnified Liabilities in any Third-Party legal proceeding to the extent arising solely from an allegation that use of:

  • ModelFoundry's technology used to provide the Services (excluding any open source software); or
  • any ModelFoundry Brand Feature infringes or misappropriates the Third Party's patent, copyright, trade secret, or trademark.

16.3 Exclusions

This Section 16 will not apply to the extent the underlying allegation arises from:

  • the indemnified party's breach of this Agreement;
  • modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
  • combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
  • use of non-current or unsupported versions of the Services or Brand Features.

16.4 Conditions

Sections 16.1 and 16.2 will apply only to the extent:

  • the indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded the Third-Party legal proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party legal proceeding. If breach of this Section prejudices the defence of the Third-Party legal proceeding, the indemnifying party’s obligations under Section 16.1 or 16.2 (as applicable) will be reduced in proportion to the prejudice.
  • The indemnified party tenders sole control of the indemnified portion of the Third-Party legal proceeding to the indemnifying party, subject to the following:
    1. the indemnified party may appoint its own non-controlling counsel, at its own expense; and
    2. any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

16.5 Remedies

If ModelFoundry reasonably believes the Services might infringe a Third Party's Intellectual Property Rights, then ModelFoundry may, at its sole option and expense:

  • procure the right for Customer to continue using the Services;
  • modify the Services to make them non-infringing without materially reducing their functionality; or
  • replace the Services with a non-infringing, functionally equivalent alternative.

If ModelFoundry does not believe the remedies are commercially reasonable, then ModelFoundry may suspend or terminate Customer's use of the impacted Services.

16.6 Sole Rights and Obligations

Without affecting either party's termination rights, this Section 16 states the parties' only rights and obligations under this Agreement for any Third Party's Intellectual Property Rights allegations and Third-Party legal proceedings.

In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties.

17. Miscellaneous

17.1 Notices

All notices must be in writing and addressed to the other party’s legal department and primary point of contact.

The email address for notices being sent to ModelFoundry is corporate@modelfoundry.com.

Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

17.2 Force Majeure

Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

17.3 No Agency

This Agreement does not create any agency, partnership or joint venture between the parties.

17.4 No Waiver

Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

17.5 Severability

If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

17.6 No Third-Party Beneficiaries

This Agreement does not confer any benefits on any Third Party unless it expressly states that it does.

17.7 Equitable Relief

Nothing in this Agreement will limit either party’s ability to seek equitable relief.

18. Contact Us

If you have questions or concerns regarding this Agreement, please contact ModelFoundry at: corporate@modelfoundry.com, or at PO Box 356, Kilkenny South Australia, AUSTRALIA 5009.