Terms of Sale and End User License Agreement
Last updated: March 28, 2019
1. PLEASE READ THESE TERMS OF SALE AND END USER LICENSE AGREEMENT CAREFULLY BEFORE USING THIS WEBSITE. BY PURCHASING AND/OR MAKING USE OF ANY LICENSE OR OTHER SERVICES THROUGH THIS WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY EACH OF THESE TERMS AND CONDITIONS AND ALL APPLICABLE LAWS AND REGULATIONS. THESE TERMS AND CONDITIONS MAY CHANGE FROM TIME TO TIME, WITHOUT NOTICE. ANY SUCH CHANGES WILL BE POSTED TO THIS WEBSITE AND SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING.
2. BY PURCHASING AND/OR MAKING USE OF ANY LICENSE OR OTHER SERVICES THROUGH THIS WEBSITE, YOU ACKNOWLEDGE:
a. THAT YOU ARE AT LEAST 18 YEARS OF AGE;
b. THAT YOU ARE AT LEAST THE LEGAL AGE OF MAJORITY IN THE LOCALITY FROM WHICH YOU ARE INSTALLING, ACCESSING OR USING THE SOFTWARE; AND
c. THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY EACH OF THESE TERMS AND CONDITIONS AND ALL APPLICABLE LAWS AND REGULATIONS.
3. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN DO NOT USE THIS WEBSITE OR PURCHASE ANY PRODUCT OR SERVICES.
4. This website www.holodexxx.com (hereinafter the “Website”) is owned and operated Holodexxx Inc., a company incorporated pursuant to the laws of the Province of Ontario, Canada.
6. In this Agreement:
a. “you” or “your” means the individual accepting this agreement.
b. “Holodexxx”, “us” or “we” means Holodexxx Inc.;
c. “Content” means any text, scan, rendering, three dimensional mesh, texture, image, illustration, animation, Flash file, film, video, visual representation generated optically, electronically, digitally or by any other means or in any media or other material on the Website, together with any accompanying material; and
d. “Licensed Content” means any Content for which you are purchasing a License from us including, but not limited to, any software, executable, computer programs, three-dimensional scans, three-dimensional models, three-dimensional images, videos, film, textures, three-dimensional meshes or other material generated optically, electronically, digitally or by any other means or in any media.
e. “License” shall have the meaning ascribed thereto in paragraph 9 of this Agreement.
f. “Prohibited Uses” shall have the meaning ascribed thereto in paragraph 15 of this Agreement.
7. By accessing the Website and/or attempting to license any Content you certify that you are at least 18 years of age and, in any event, at least the age of consent in the jurisdiction from which you are accessing or viewing the Website.
How to Purchase a License
8. You may purchase a License by placing an order through the Website, placing an order through a Holodexxx affiliate, or by purchasing a subscription through a third-party subscription service that grants a license to specified content as a reward (the “Offer to Purchase”). After you submit an Offer to Purchase, you will receive an email from us or a third party acknowledging that we have received your order (the “Acknowledgement”). Receipt of an Acknowledgment does not constitute our acceptance of your Offer to Purchase a License. We will confirm our acceptance of your Offer by sending an email to the email address provided by you together with instructions on how to access the Licensed Content (the “Confirmation of Purchase”). Delivery of the License will be made together with delivery of the Confirmation of Purchase. You do not acquire any License unless and until you have received a Confirmation of Purchase.
Grant of License
9. Subject to the terms and conditions contained in this Agreement and upon our delivery to you of a Confirmation of Purchase, we hereby grant to you a revocable, non-exclusive, non-transferable, limited license to download, install and use the Application solely for your personal, non-commercial purposes strictly in accordance with the terms of this Agreement (the “License”). All other rights in and to the Licensed Content including, without limitation, all copyright and other intellectual property rights relating to the Licensed Content, will be retained by us. Any and all Licenses granted by us are subject to the terms and conditions contained in this Agreement.
10. All prices shown on the Website are in US dollars. If you are placing an order from a different country, your card issuer may convert the charge into your local currency.
11. Once an order has been placed, it cannot be cancelled, modified or amended other than in accordance with the terms and conditions contained herein.
12. If any Content available for license through the Website becomes unavailable following an Offer to Purchase but before a Confirmation of Purchase is delivered to you, your only remedy will be a refund of the price paid for the unavailable Content. If technical problems prevent or unreasonably delay delivery of your selected Content, your exclusive and sole remedy is either a replacement of the selected Content or a refund of the price paid.
13. If you used a credit card or a debit card to purchase a License any and all refunds relating to that transaction shall be refunded to the credit card or debit card that was used to make the purchase.
14. Only you, the end user, are permitted to use the Licensed Content.
15. Notwithstanding anything contained herein, you shall not be permitted to:
a. resell, transfer or distribute the Licensed Content in any manner other than as expressly permitted herein;
b. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Content or the rights granted under this Agreement;
c. use the Licensed Content in electronic or digital template applications intended for resale or other distribution, whether on-line or not, including, without limitation, website templates, videogame templates, Flash templates, advertising or marketing templates;
d. use any of the Licensed Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo without the express prior written consent of Holodexxx;
e. use the Licensed Content in any manner that is unlawful;
f. use any of the Licensed Content in a fashion that is considered by Holodexxx in its sole discretion (acting reasonably) to be infringing, defamatory or libelous in nature;
g. to the extent that source code is contained within the Licensed Content, reverse engineer, decompile, or disassemble any part of such source code;
h. remove or modify any notice of copyright, trademark or other proprietary right , or any other copyright management information or metadata, from any place where it is on or embedded in the Licensed Content;
i. use the Licensed Content in a manner that infringes upon any third party's trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition;
j. Upload or use any Licensed Content on a media platform or other third party website that claims to acquire rights in the Licensed Content as a result of such use;
k. Use Licensed Content in a manner that competes with Holodexxx's business or the business of any of its associated or affiliated companies. This includes, by way of illustration only and not by way of limitation, displaying Licensed Content in any format (including thumbnails) for download on a website.
l. use or display the Licensed Content in an electronic format that enables it to be redistributed to, downloaded by, or shared with, a third party in any peer-to-peer or similar file sharing arrangement. Uploading any Licensed Content to a website at a resolution that exceeds the display resolution of the intended viewing device will be deemed to be an attempt to redistribute the Licensed Content.
Term of Agreement
16. This Agreement is effective until it is terminated. This Agreement may be terminated at any time by Holodexxx without notice if you fail to comply with any of the terms of this Agreement. Upon termination, all License(s) for Licensed Content shall automatically terminate and you must immediately:
a. stop using the Licensed Content for any purpose whatsoever;
b. destroy or delete all copies and archives of Licensed Content or accompanying materials which are in your possession and/or control, which are in the possession and/or control of a third party acting on your direction, and which are in the possession and/or control of a third party not acting on your direction but which Licensed Content may reasonably be brought under your possession and/or control; and
c. confirm to Holodexxx in writing that you have complied with these requirements (if requested by Holodexxx).
17. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TERMINATION OF THIS AGREEMENT BY HOLODEXXX FOR ANY REASON WHATSOEVER SHALL BE IN ADDITION TO AND SHALL NOT LIMIT OR RESTRICT HOLODEXXX’S OTHER RIGHTS AT LAW AND/OR EQUITY. OTHER THAN AS EXPRESSLY SET OUT HEREIN, HOLODEXXX SHALL BE UNDER NO OBLIGATION TO REFUND ANY AMOUNTS PAID BY YOU IN THE EVENT THAT THIS AGREEMENT IS TERMINATED.
18. Upon notice from Holodexxx, or upon your knowledge that any Licensed Content is subject to a threatened, potential or actual claim of infringement of another's right for which Holodexxx may be liable, you must immediately and at your own expense (i) stop using the Licensed Content; (ii) delete or remove the Licensed Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise. Holodexxx shall provide you with replacement Content (which shall be determined by Holodexxx in its sole judgment) free of charge, but subject to the other terms and conditions of this Agreement.
No Representation or Warranty
19. OTHER THAN AS EXPRESSLY PROVIDED HEREIN, THE LICENSED CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. HOLODEXXX DOES NOT REPRESENT OR WARRANT THAT ANY CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT HOLODEXXX) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS. IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HOLODEXXX MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, FITNESS FOR USE OR OTHERWISE.
20. Any representation or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law.
Waiver of Liability and Indemnity
21. IN NO EVENT SHALL HOLODEXXX OR ANY OF ITS AFFILIATES AND/OR ASSOCIATED COMPANIES OR ANY DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, CONTRACTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES WHATSOEVER ARISING OUT OF, UNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES AND INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER, OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, MODIFICATION OR EXPLOITATION OF THE LICENSED CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
22. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF HOLODEXXX OR ANY OF ITS AFFILIATES AND/OR ASSOCIATED COMPANIES OR ANY DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, CONTRACTORS, AGENTS, SUCCESSORS OR ASSIGNS UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY HOLODEXXX FOR PURCHASE OF YOUR LICENSE.
23. You agree to indemnify, defend and hold Holodexxx harmless and each of our affiliate and/or associate companies, and all directors, officers, employees, shareholders, agents, contractors, successors or assigns of us and our associate and affiliate companies, from any damages, liabilities, costs and expenses, including all reasonable legal expenses, on account of any claim, action, suit, demand or proceeding made or brought against any such party, or on account of the investigation, defence or settlement thereof, arising in connection with the License and/or use of the Licensed Content.
Events Outside our Control
24. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder or in connection with an order to purchase a License that is caused by one or more events outside our control (individually and collectively an “Event Outside Our Control”) including but not limited to:
a. acts of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);
b. war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo;
c. rebellion, revolution, insurrection, or military or usurped power, or civil war;
d. contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly;
e. riot, commotion, strikes, go slows, lock outs or disorder;
f. acts or threats of terrorism; or
25. Notwithstanding anything contained herein, if an Event Outside Our Control takes place that affects the performance of hereunder or in connection with an order to purchase a License:
h. We will make best efforts to notify you of the occurrence of the Event Outside Our Control as soon as reasonably possible; and
i. Such affected obligations will be suspended and the time for performance will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of any Licensed Content to you, we will deliver the Licensed Content to you once the Event Outside Our Control is over.
Intellectual Property Rights
26. Notwithstanding your purchase of a License or anything else contained herein, we are and shall at all times remain the exclusive owner and/or authorized licensor of the Content. No ownership or copyright in or to any Content shall pass to you for any reason whatsoever.
27. Further, Holodexxx does not make any representation or warranty with respect to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted in connection with any Content. You shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of the Licensed Content and shall be responsible for obtaining such release(s).
28. This Agreement is personal to you and is not assignable by you without the express prior written consent of Holodexxx. Holodexxx may transfer or assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
30. Holodexxx’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any term, condition, provision, or right.
31. Any use of Licensed Content in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Holodexxx to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition to other termination rights hereunder, Holodexxx reserves the right to terminate this Agreement in the event you enter in to this Agreement after having received notice of unauthorized use from Holodexxx relating to the Licensed Content.
32. If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision. Notwithstanding anything contained herein, the invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
33. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the License granted to you, or of your use of the Licensed Content.
34. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
35. This Agreement will be governed by and shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
36. You acknowledge and agree that any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to the exclusive jurisdiction of the courts Canada and/or of the Province of Ontario as applicable.
37. You may contact us by email any time at: info @ holodexxx . com