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TERMS OF SERVICE

Artomatix 2019

Artomatix Terms & Conditions

Please read this these General Terms and Conditions carefully before accessing or using the Software. By clicking the “AGREE” button on Software downloads, the Licensee agrees to access and use the Software on these General Terms and Conditions, which are thereby accepted.

Terms

1. INTERPRETATION

1.1 In this Agreement (including the Schedules) the following words and expressions shall have the
following meanings unless the context requires otherwise:

“Authorised Users”

the Licensee and (i) all employees of the studio
operated by the Licensee, in the case of a Studio
License (or Evaluation License for a studio) or (ii)
the number of users stipulated in the Specific
Terms, in the case of a Project License (or
Evaluation License for a project);

“Content”

any content provided by the Licensee for the
purposes of or in connection with its utilisation of
the Software;

“Data Protection Legislation”

legislation and regulations relating to the use,
processing and protection of data relating to living
individuals;

“Effective Date”

the commencement date of the License, as set out in the Specific Terms;

“Evaluation License”

a license granted to the Licensee for short term, evaluation purposes only;

“Fees”

the fees for the License set out in the Specific Terms;

“General Terms”

these general terms and conditions;

“Intellectual Property Rights”

patents, copyrights (including source code), registered and unregistered design rights, trade
marks, trade secrets, know‐how, database rights and all other similar or corresponding proprietary
rights (whether registered or unregistered) and all
applications for the same, anywhere in the world;

“License”

the license granted by the Licensor to the Licensee under these General Terms, being one of an
Evaluation License, Studio License or Project License, as set out in the Specific Terms;

“Project License”

a license granted to the Licensee for use in connection with a specific, named project;

“Service Levels”

the service and support levels of the Licensor specified in Annex A;

“Software”

the “ArtEngine” software licensed by the Licensor under the License;

“Specific Terms”

the specific terms and conditions applicable to this License;

“Studio License”

a license granted to the Licensee for use within the Licensee’s studio only;

“Term”

the term of this License commencing on the Effective Date for the period set out in the Specific
Terms; and “TP Software” any software used by the Licensor in developing the Software and which is owned by a third party.

1.2 References to clauses herein are to clauses of these General Terms.
1.3 The License shall be governed by and construed in accordance with the laws of Ireland and the
Licensor and the Licensee submit to the exclusive jurisdiction of the Irish courts in relation to all
disputes or matters affecting or relating to the License.

2. COMMENCEMENT

The License shall be deemed to have commenced on the Effective Date and the parties’ rights and
obligations under the License shall be deemed to accrue from that date.

3. LICENSE

3.1 In consideration of the Fees payable by the Licensor to the Licensee, the Licensor hereby grants to the Licensee a non‐exclusive, non‐transferable license to use the Software for the Term.
3.2 The Licensee shall only allow access to the Software by its Authorised Users.
3.3 The Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer,
decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in
part.
3.4 The Licensee shall not use the Software in a capacity other than as an end user of the product of
use of the Software, in particular the Licensee confirms that it does not operate a digital art
repository and does not act as a commercial digital art developer interested in stockpiling
non‐specific art to be aggregated and / or sold. The Licensee shall not excessively use the Software
in disregard of reasonable / fair use.

4. FEES

4.1 The Fees payable by the Licensee shall be as set out in the Specific Terms. The Fees shall be
payable at the times and in the manner set out in the Specific Terms.

4.2 All payments stated in this Agreement are exclusive of applicable Taxes, which shall be added to the Licensor’s invoices at the rate applicable at the time of invoicing.
4.3 During the Term (and for one year thereafter), the Licensor or its designated agent shall be given
secure electronic access to the Licensee’s records to verify its compliance with the License. Such
access shall take place during normal business hours and the Licensor shall provide at least 5 days advance notice of the requirement for such an audit. Any instances of non‐compliance, including any underpayment of Fees, shall be remedied by the Licensee within 5 days of notification of same from the Licensor.

5. OWNERSHIP OF THE SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS

5.1 The Licensor shall obtain on behalf of the Licensee all necessary licenses and consents for the use of
the TP Software.
5.2 The Licensee acknowledges that all Intellectual Property Rights in the Software belong to the
Licensor. The Licensee acknowledges that all Intellectual Property Rights in the Software belong to the Licensor. The Licensee has no rights in or to the Software other than the right to use it strictly
in accordance with the terms of the License.
5.3 The Licensor shall retain copyright in and to the Software.
5.4 The Licensor shall indemnify and keep indemnified the Licensee against all claims, actions and
proceedings brought against and all costs, damages, liabilities and expenses incurred by the
Licensee arising from any claim or action that the possession, use, development, modification or
maintenance of the Software infringes the Intellectual Property Rights of a third party provided that
the Licensee:
5.4.1 on becoming aware of the same shall promptly give notice of it to the Licensor;
5.4.2 makes no admission of liability without the Licensor’s written consent;

5.4.3 allows the Licensor to have sole conduct and control of the defence and any related
settlement negotiations.

5.5 The Licensor shall be entitled (without prejudice to any rights or remedies the Licensee may have)
at its own cost to replace or modify any infringing material so that it becomes non‐infringing.

6. WARRANTIES

6.1 The Licensor hereby warrants and undertakes that:
6.1.1 the Licensor has the full power and authority to execute, deliver and perform its obligations
under the License;
6.1.2 it has used all reasonable endeavours to ensure that the Software is free from harmful code
of any description, including any computer code, programming instruction, or set of instructions that is intentionally constructed to damage, interfere with or otherwise
adversely affect computer programs and/or datafiles and/or hardware and/or computer systems and/or networks; and
6.1.3 it has all necessary rights and consents to license the Software to the Licensee in accordance with these General Terms.

6.2 The Software is licensed on an “as available” and “as is” basis and the Licensor makes no warranties
or representations, whether express of implied, in relation to the Software, including but not
limited to implied warranties of conditions of completeness, accuracy, quality of fitness for any
particular purpose.

7. SUPPORT AND SERVICE LEVELS

7.1 From the Effective Date and throughout the Term the Licensor shall provide all necessary technical
and infrastructure resources to amend the Software in the case of a dysfunction notified by the
Licensee.
7.2 From the Effective Date and throughout the Term, the Licensor shall provide support and
maintenance for the Software in accordance with the Service Levels.

8. CONFIDENTIALITY AND DATA PROTECTION

8.1 Each party (the “Recipient”) shall keep secret and not disclose to anyone without the prior written
consent of the other party (“Disclosing Party”) any information received from or belonging to the
Disclosing Party. This Clause 8.1 shall not apply:
8.1.1 to any information which has become or which becomes either before, on or after the date
of this Agreement generally and freely available through no fault of the Recipient;
8.1.2 to any information which the Recipient can otherwise show came into its possession
without it owing a duty of confidence to the Disclosing Party in respect of such information;
or
8.1.3 to the extent the disclosure is required to or by any court, tribunal or government authority
of competent jurisdiction.

8.2 If as a result of the License the Licensor is required to process personal data supplied to it by the
Licensee then the Licensor will:
8.2.1 process such personal data in accordance with Data Protection Legislation;
8.2.2 implement appropriate technical and organisational measures to protect such personal
data against accidental or unlawful destruction or loss, alteration, unauthorised disclosure
or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing; and
8.2.3 forward any request to access, correct or cease processing personal data to the Licensee
within 7 days of receipt.

8.3 The Licensor acknowledges that the Content is proprietary to the Licensee and that all Intellectual
Property Rights and other rights therein shall be and remain in the ownership of the Licensee.
8.4 The Licensee acknowledges that the Software contains proprietary and patented neural network
code and Intellectual Property Rights that are highly confidential and unique to the Software.
Accordingly, the Licensee acknowledges that damages are not a sufficient or adequate remedy for
any breach of this Clause 8 and that the Licensor is entitled to seek specific performance or injunctive relief as a remedy for any breach or anticipated breach, in addition to any other remedies to which the Licensor is entitled.

8.5 The Licensee agrees that the Software may connect to the Internet and report information about its use back to the Licensor: (i) to check for Software updates; (ii) to provide usage analysis in relation to the Software; (iii) to prevent unauthorised use; and (iv) for audit purposes pursuant to Clause 4.3.

9. LIABILITY

9.1 Save to the extent excluded by law, the Licensor and the Licensee shall in no circumstances be
liable for any consequential, indirect or special loss or damage (including without limitation loss of
business or loss of profit) howsoever arising whether in contract negligence, other tort or
otherwise.
9.2 Save to the extent excluded by law, the total aggregate liability of the Licensee or the Licensor,
whether in contract, tort or otherwise in connection with the License, shall in no circumstances
exceed the amount of Fees paid by the Licensee in the 12 months preceding any claim.

10. TERM, TERMINATION AND CONSEQUENCES OF TERMINATION

10.1 The License shall continue from the Effective Date for the Term, subject to extension thereafter by
mutual agreement.
10.2 Either party shall have the right to terminate this Agreement forthwith on written notice to the
other if such other:
10.2.1 suffers an insolvency type event, including:
(a) passes a resolution or the Court makes an order for its winding up;
(b) has a receiver, administrative receiver or administrator appointed over its
undertaking or over any of its assets;
(c) is or becomes insolvent under laws applicable to that party;
(d) takes or suffers any analogous action on account of debt; or
(e) ceases or threatens to cease to carry on business; or
10.2.2 shall have committed a material breach of any of its obligations under the License and in
the case of a breach capable of remedy shall not have remedied such breach within 30 days of receiving notice from the first mentioned party detailing the breach and requiring its remedy within such 30 day period.

Either party shall notify the other in writing as soon as any event justifying termination under Clause 10.2 occurs.
10.3 The Licensor shall have the right to terminate this Agreement forthwith on written notice to the
Licensee in the event of any breach by the Licensee of the terms of Clauses 3 or 8.1.
10.4 Termination of the License howsoever arising shall not affect or prejudice the accrued rights of the
parties as at termination or the continuation of any provision expressly stated to survive or
implicitly surviving termination. Clauses 4.3, 5, 6, 8 and 9 shall survive the termination of the
License.

10.5 On termination of this Agreement howsoever arising, each party shall (except as otherwise agreed) promptly deliver up all documentation and other materials in its possession or under its control
(including copies of the Software) and belonging to the other party.

11. GENERAL

11.1 Assignment: The License is personal to the Licensee. The Licensee shall not assign, novate,
sub‐license, sub‐contract or otherwise dispose of the License or any part thereof without the prior
written consent of the Licensor. The Licensor may freely assign the License as part of any internal
group re‐organisation or in connection with a sale of all or a majority of the business of the
Licensor.
11.2 Waiver: No forbearance, delay or granting of time by either party in or before enforcing these
General Terms shall prejudice its rights. No waiver of any right or breach of these General Terms
shall be effective unless in writing and signed by the party making the waiver. Any such waiver shall
not be construed as a waiver of any other right or breach.
11.3 Entire Agreement: The Specific Terms and these General Terms supersede all prior agreements and
arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to the License and shall apply in place of, and prevail over, any terms or conditions contained or referred to in correspondence or elsewhere or implied by trade custom or course of dealing and any purported contrary or inconsistent provision is hereby excluded.
11.4 Variation: Any variation to the Specific Terms and these General Terms shall only be effective if in
writing and signed by (or by persons duly authorised by) the Licensor and the Licensee.
11.5 No Partnership etc: Nothing in these General Terms shall create a partnership or joint venture
between the parties.
11.6 Notice: Any notice to be given by either party for the purposes of the License shall be sent by mail /
email to the contact party whose details are set out in the Specific Terms.

ABOUT US

Artomatix has built the world’s first 3D art engine. Our set of products and services help people to express their creativity. We believe this technology has the potential to significantly change every industry exposed to 3D content: video games, movies, special effects, industrial design, and beyond. Our team works where art and technology collide.

CONTACT
  • Artomatix, The Greenway Hub, Grangegorman, Dublin 7
  • Ire: 00353 1 556 3624
  • USA: 001 415 231 3731
  • UK: 0044 2071 8304248
  • [email protected]
Worldwide

London | Dublin | Washington

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