1. These PRODUCT LAB Terms of Service (“TOS”) govern Customer’s use of the Services, and are deemed incorporated by reference into the agreement between Customer and NB.
2. NB has developed a complex software product which is in a beta stage process and that integrates ShapeDiver models into WooCommerce and other platforms.
3. The purpose of this integration is to use these models as product configurators and to provide custom tools for merchants that are specific to this type of configurable product.
4. For the specific platforms, the Services provide administrative features that may allow the Customer to embed a model and configure the user interface thereof.
5. The purpose of the Services is to extend e.g. WooCommerce to provide additional functionality that is related with ordering the configured product (merchant's customer) and to process the order (merchant side).
6. This complex software product is in a beta stage and subject to constant change and in this regard, Customer understands that NB is not providing any warranty outside of the specified herein and any and all of the terms and conditions herein are subject to unilateral change by NB.
7. Wherever used in this TOS and its updated versions, unless the context shall otherwise require, the following terms shall have the meaning opposite them:
(1) “Customer” means in the case of an individual accepting this TOS on his or her own behalf, such individual, or in the case of an individual accepting this TOS on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this TOS, and Affiliates of that company or entity (for so long as they remain Affiliates) which is using the Services;
(2) “NB” – New Branch Ltd. a limited liability company organized and existing under the laws of the Republic of Bulgaria, entered in the Commercial Register under Uniform ID Code 204672875;
(3) “Customer Data” means any electronic data or information submitted by or for Customer to the Services;
(4) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;
(5) “Activation of the Services” – the Activation of the Services by NB;
(6) “Services” means the products and services that are ordered by Customer and made available online by NB and exclude Non-NB Services;
(7) “Non-NB Services” means a Web-based services or other software application functionality that interoperates with a Service, that is provided by a third party or under similar designation. Non-NB Services, other than those obtained or provided by NB, will be identifiable as such – e.g. Shapediver services, WooCommerce, Shopify, etc.
(8) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
(9) “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this TOS on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by NB without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, NB at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business;
(10) “Subscription Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and NB or any of their Affiliates, including any addendum and supplements thereto. By using the Services hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
(11) “Party” – NB, Customer or in certain cases any of their Affiliates.
8. By registering as well as by merely using of any part of the Services, the Customer or any other Party using the Services agrees to be bound by these TOS.
9. This TOS sets out the entire agreement and understanding between NB and Customer and is the only valid agreement between them in connection to the provision of the Services. This TOS supersedes and abrogates all previous drafts, proposals, arrangements, agreements and other oral or written commitments or correspondence made by or between the Parties with respect to their relationship regarding the provision of the Services.
10. The Customer shall not have the right to assign and/or transfer any of its rights and obligations under this agreement to any third party without first having obtained the express written consent of NB.
11. NB reserves the right to modify in any way these TOS at any time and for any reason; such changes may include, but are not limited to the imposition of new or additional terms or conditions. Any modification of or amendment to these TOS shall enter into force and be legally binding upon the Customer upon the expiration of one month as of the publishing of the amended TOS on the website of NB. The Customer declares and confirms that it shall regularly check for amendments of the TOS on the website of NB and shall acquaint itself with them timely.
12. The Customer agrees and acknowledges that these TOS (including any documents referred to herein) will be applicable to any use of the Services by the Customer or its Affiliates and/or its employees in any way whatsoever, including, without limitation, the types of use described herein.
13. The Customer understands and confirms that it is solely responsible for managing, paying and any other related actions in relation to software, platforms, web pages or any other service which may be required to use the Services.
14. The Customer understands and confirms that it is solely responsible to comply with ShapeDiver and the terms and conditions of other platforms which may be used with the Services.
15. It is important that the Services are used safely and in accordance with the applicable legislation. In this regard, the Customer is prohibited to use the Services, in particular but not limited to:
15.1. Decompile, disassemble, reverse engineer, copy, transfer, or otherwise use the Services or any content except as permitted by Bulgarian Copyright Legislation;
15.2. Promote any illegal activity, or advocate, promote or assist any unlawful act;
15.3. Violate legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or that otherwise may be in conflict with these TOS;
15.4. Transmit any material or content that is pornographic, obscene, improper, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, xenophobic, shocking, inappropriate for families, illegal, or otherwise objectionable;
15.5. Transmit any material or content that attempts to falsely state or otherwise Terms of Service – Product Lab Page 3 misrepresent your identity or affiliation with a person or entity;
15.6. Transmit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;
15.7. Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation;
15.8. Transmit or encourage the transmission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent, or right of publicity, or which otherwise constitutes or promotes counterfeit materials or goods;
15.9. Use the Services in a manner that (a) is likely to interrupt, suspend, slow down or hinder the continuity of the Services, (b) constitutes an intrusion or attempt to break into the Services or our IT infrastructure, (c) will divert of the Services’ resources, (d) may place a disproportionate load on the infrastructure of the Services, and (e) constitutes an attack on security and authentication measures of the System or our IT infrastructure
15.10. Intrude into a third party’s computer system, engage in any activity that may damage, control, interfere with or intercept all or part of a third party’s computer system and violate its integrity or security, or otherwise transmit any materials or content that is harmful for third party information systems (including but not limited to viruses, worms, Trojans)
15.11. Distribute any part of or parts of the website or the Services, including but not limited to any content, in any medium without our prior written authorisation, unless we make available
15.12. the means for such distribution through functionality offered by the Services
15.13. Access content through any technology or means other than the model view pages of the Services, or such other means as we may explicitly designate for this purpose
15.14. Otherwise use the Services for purposes other than those for which they were designed.
16. The Services are subject to usage limits if specified herein or in any other document concluded by the Parties.
17. Customer agrees that its purchase of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by NB regarding future functionality or features.
18. Elements within the Services and the contents of all proprietary websites at *.newbranch.com (excluding User Content that is described below), such as text, pictures, illustrations, publicly downloadable website source code as well as design and structure of the Services and websites are subject to copyright and trademark protection and the protection of intellectual property. Except as expressly permitted in these TOS, Customer may not reproduce, distribute, adapt, modify, translate, create derivative works from, make available, present, perform, publish or otherwise use any portion of these websites or the Services for any purpose without express prior written permission from NB or the applicable rights holder. Customer is also expressly prohibited from registering the Services or parts of the Services as a trademark, utility model, patent or any other industrial property right available in Bulgaria, abroad or internationally. In addition, Terms of Service – Product Lab Page 4 NB is recognized as the originator of the Services.
19. The Customer is granted a limited, any time revocable, royalty-free, non-exclusive, non- sublicensable and non-transferable license to use the Services as it is provided by us as set forth in these TOS, only.
20. All software used in connection with the Services belongs to NB or to third parties, and except as may be required to exercise the foregoing license grant, any other use is prohibited. The Customer accepts that NB may update any software in relation to the Services without notice, at any time and that these TOS will apply to any updated versions.
21. If Customer receives notice that content data of the Customer must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the policies of NB, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in NB’s judgment continued violation is likely to reoccur, NB may disable the Services. If requested by NB, Customer shall confirm such deletion and discontinuance of use in writing and NB shall be authorized to provide a copy of such confirmation to any such third- party claimant or governmental authority, as applicable. In addition, if NB is required by any third-party rights holder to remove data of the Customer, or receives information that content provided by Customer may violate applicable law or third-party rights, NB may discontinue Customer’s access to the Services.
22. During the usage of the Services, the Customer may use certain “User Content” including models and graphics. User Content includes all these Models, images, and related content, as well as the Customer’s comments in text or other form, including when uploaded by the Customer.
23. The Customer shall be responsible for ensuring that any submitted User Content complies with all applicable laws and does not infringe any third party rights, and that it is neither offensive nor improper. Furthermore, the Customer represents and warrants that it has all required rights according to its User Content. The Customer shall fully indemnify and hold harmless NB in this regard. Thus, you shall also inform NB promptly about any legal complaint, claim or action related to Customer’s User Content.
24. The Customer is solely responsible for safeguarding its User Content, and NB is under no obligation to save or store any copies of User Content for future availability. In addition, NB reserves the right to delete, deny or limit access to any User Content provided by the Customer without giving any justification or prior notice.
25. Taking into consideration that User Data must be stored in the system of NB or of Non- NB Service providers, the Customer grants NB royalty-free, non-exclusive, worldwide and simple usage rights to the data stored by the Customer for the usage of the Services. This includes in particular protected trademarks, samples, signs, pictures or designs etc. held by the Customer.
26. The Customer grants NB a non-exclusive, royalty-free, any time revocable right to use, publish by virtue of the Services or of third- party websites as well as modify the Customer’s User Content, for the purposes of developing, distributing, providing, improving, and promoting the Services.
27. The Customer declares and confirms that it understands that Non-NB Services may impose additional restrictions and requirements which shall be applicable to the Services and/or to the User Content. By virtue of this TOS the Customer confirms that it shall comply with all of these conditions and that it has acquainted itself thereof.
28. A Customer, who is using the paid version of the Services, hereby explicitly permit the usage of its trademark (name, logo, etc.) by NB for marketing purpose for the trademark to be placed on the website of NB or Product Lab or for evidencing experience by inclusion in marketing materials or proposals of NB.
29. Customer agrees to provide ongoing feedback to NB regarding the Services. NB shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users, relating to the operation of the Services for use by NB and users of its offerings.
30. Customer declares and warrants that it understands that the Services are in a beta stage process and defects and inconsistencies may be present in the Services.
31. NB does not warrant that the Services will function properly or fault-free, including in case:
31.1. software changes by someone other than NB;
31.2. the Services being used in a way that does not comply with these TOS and the documentation;
31.3. hardware or software that is not part of the Services;
31.4. hardware or software which is not supported;
31.5. a software version withdrawn by NB; or
31.6. by misuse or corruption of the Services.
32. NB makes no warranty of any kind, whether express, implied, statutory or otherwise, and 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 the applicable to this TOS legislation. Content is provided “as is,” and as available exclusive of any warranty whatsoever.
33. For Customer’s using the paid version of the Services NB shall, within 5 (five) business days for premium subscriptions and 2 (two) business days for ultimate subscriptions as of receiving a notification by the Customer, respond to the question of the Customer and/or commence with establishing the defect in the Services and any inconsistency therein. For the avoidance of doubt, developing of new functionality of the Services is not envisaged and included in this article.
34. In no event shall NB have any liability to Customer or any User for any damages related to Customer’s purchase or use of the Services pursuant to these TOS, including but not limited to direct, indirect, special, incidental, punitive, or consequential damages, or damages based on lost profits, however caused and, whether in contract, tort or under any other theory of liability, whether or not Customer has been advised of the possibility of such damages.
35. NB may, at its sole discretion, refuse to offer the Services to any person or entity. Furthermore, for such customers who do not currently use any Paid Services at any given time, NB retains the right to deactivate, reallocate or rename any usernames at any time without giving any reason.
36. NB provides the Services with due care. However, according to the vast amount of data and the existing security risks of the internet, it is not possible to entirely avoid errors, infringements by third parties or mistakes. In consideration of these circumstances, some information may not be up to date, complete or accurate. NB cannot guarantee for completeness, reliability, or timeliness of the provided content. NB will make diligent efforts to eliminate any noticed errors as soon as possible.
37. The Customer declares and agrees that it understands that legislative or other amendments may require a change in the Services or the need to upgrade them, or the relevant software. The Contractor will perform these actions at its discretion in order to be able to meet the new regulatory requirements.
38. NB provides certain extended features and capabilities of the Services available as Paid Services. These features can be purchased through additional inquiry to NB.
39. Any invoice issued by NB which refers to these TOS is understood to be a proposed Subscription Order. That Subscription Order Terms of Service – Product Lab Page 6 becomes effective once the invoice has been paid by Customer, and Customer acknowledges and accepts that all provisions in these TOS apply to the Subscription Order.
40. Taking into consideration that the Services are in a beta stage process, NB may at its sole discretion increase the price of the Services by virtue of a notification to Customer. The increase of the price of the Services shall be in effect as of the first day of the calendar month following the increase.
41. Every Subscription Order covers a predefined time frame (the “Service Period”) during which it allows you to use the respective Paid Services. All Subscription Service Orders must be prepaid in accordance with the specification of the Subscription Order before the start of the provision of the Services.
42. Additional or differing terms for a Subscription Order may be defined in a written contract between Customer and NB. Such terms do only apply if the respective contract has been duly signed by an authorized representative of NB, if it specifies explicitly which provisions of these TOS are replaced, and if the corresponding invoice clearly references the respective contract.
43. All prices communicated by NB on its website, in price lists or any other documents or material provided by NB, shall be in the respective currency, plus applicable taxes, duties, levies and custom duties and already include any discounts. Any such taxes will be applied once an invoice is issued.
44. Customer shall not be entitled to withhold payments either wholly or in part, until, for example, performance disruptions have been completely eliminated and / or all agreed deliveries and services have been duly rendered. Customer is under no circumstances entitled to offset its own claims against claims of NB, as long as they have not been explicitly acknowledged in writing by NB or legally established in court. Furthermore, the Customer is not entitled to assign claims against any third party to NB.
45. Each Subscription Order shall be prepaid before the commencement of the Services according to the respective conditions for payment schedule. If the Services are paid monthly or by virtue of any other reoccurring period by Customer and a payment following the first one does not occur or in any way is not paid timely and in accordance with this TOS the Customer shall be automatically transferred to the free version of the Services and the Customer’s access to all of the paid versions of the Services shall be hindered until full payment of the due fees.
46. No failure or delay by NB in exercising any right under these TOS will constitute a waiver of that right.
47. The terms of NB for the provision of the Services are of instructive nature and are not obligatory. In the event of circumstances that may lead to non-compliance with the terms, NB may notify the Customer and agree on a longer period for performance.
48. All disputes arising from or in connection with this TOS, including those arising from or in connection with its interpretation, invalidity, performance or termination, as well as disputes for filling gaps in this TOS or its adaptation to newly established facts, shall be referred for resolution to the competent court in the city of Sofia, Bulgaria.
49. This TOS shall be governed by the Bulgarian law.
50. Titles and headings of sections of this TOS are for convenience only and shall not affect the construction of any provision of this TOS.
51. This TOS does not provide any rights to any third party. No third party may claim or refer to any of the provision of this TOS for giving rights in its favor, either direct or indirect.
address: Vitosha district, 13 21-st century St., ap. 3, Sofia 1700, Bulgaria
e-mail: [email protected]
LAST UPDATED: 27 May 2021