DIDIMO’S TERMS AND CONDITIONS FOR SERVICES

If you are accepting these terms on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to these terms and conditions.

These terms and conditions incorporate the terms of Didimo's Privacy Policy.

The developer's attention is particularly drawn to the provisions of clause 8.

1                   INTERPRETATION

1.1              Definitions:

"API"

means the application program interface software to be developed and] provided by Didimo to the Developer in respect of each DiDiMo] that will enable the Developer to integrate the relevant DiDiMo into its own platform, website or mobile application.

"Applicable Laws"

means any applicable law, legislation, instrument, rule, order, regulation, directive, bye-law or decision including the rules and regulations of any Authority, as the same may be amended or varied from time to time.

"Authority"

means any local, national, multinational, governmental or non-governmental authority, statutory undertaking or public or regulatory body or body corporate which has any jurisdiction, control or influence over the obligations of either party to this Contract.

"Business Day"

means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Commencement Date"

has the meaning set out in clause 2.1.

"Confidential Information"

means all non-public information, documentation and data, of whatever nature, disclosed in writing, by one party to the other or obtained by one party from the other whether before or after the Commencement Date, arising out of, or in connection with, this Contract or its subject matter and whether or not it is marked as "confidential" but which ought to be reasonably considered to be confidential.

"Contract"

means the contract between Didimo and the Developer for the supply of Services in accordance with these Terms.

"Credits"

means [the credits which the Developer may use to purchase DiDiMos pursuant to these terms].

"Deliverables"

means the DiDiMo(s) and the accompanying API(s).

"Developer"

means the purchaser of Services from Didimo.

"DiDiMo"

means the .Zip file containing the associated files representing the 3d virtual character which has been produced by Didimo, pursuant to and subject to these terms and conditions, for the Developer.

"Didimo"

means Didimo, Inc registered in the State of Delaware.

"Image"

means a photograph that is uploaded to the Website by the Developer for Didimo to use in the provision of the Services in accordance, and in compliance, with these Terms (including but not limited to the provisions of clause 5).

"Intellectual Property Rights"

means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

"Services"

has the meaning as set out in clause 3.2.

"Terms"

means these terms and conditions as amended from time to time in accordance with clause 11.5.

"Terms of Website Use"

means those terms and conditions that apply to a users' use of the Website, which can be found at: www.mydidimo.com and which may be updated by Didimo from time to time.

"Website"

means Didimo's website at: www.mydidimo.com. 

"Year"

means each twelve (12) month period from the Commencement Date or from each anniversary thereof.

1.2              Interpretation:

(a)       A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b)       Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(c)       [A reference to writing or written includes email.] 

2                   BASIS OF CONTRACT

2.1              When the Developer purchases Credits on the Website, such purchase shall be subject to, and in accordance with, these Terms and the point at which the Developer signifies its acceptance of these Terms before purchasing such Credits (by ticking the relevant box on the Website when prompted), is the point at which and on such date that the Contract shall come into existence ("Commencement Date"). 

2.2              Any samples, drawings, illustrations, graphics, descriptive matter or advertising issued by Didimo or displayed on the Website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force. 

2.3              These Terms apply to the Contract to the exclusion of any other terms that the Developer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4              The Services are directed at recipients who are acting in a business capacity residing in England. Didimo does not represent that the Services are appropriate or available in other locations. Didimo may limit the availability of the Services or product described on the Website to any person or geographic area at any time. If the Developer chooses to access the Website and order Services from outside such geographic area, the Developer acknowledges and agrees that it does so at its own risk and it agrees to comply with any laws applicable to the Services and the Website in such area.

3                   SUPPLY OF SERVICES

3.1              The Developer may from time to time order Services from Didimo by purchasing Credits and uploading an Image via the Website, where prompted.  However, nothing in these Terms shall oblige the Developer to order such Services.

3.2              Subject to the Developer's compliance with the terms and conditions of these Terms and in consideration of the Developer's payment of the Credit(s) pursuant to clause 6, as soon as reasonably practicable after the Developer has uploaded an Image via the Website and as directed by the Website, the Supplier shall: 

(a)       use reasonable endeavours to process the Image using its proprietary software to create the required number of DiDiMo(s)

(b)       make the DiDiMo available for the Developer to download as a compressed .zip file, solely for its own internal business purposes and such download shall be effected by the Developer clicking on the "download" button. All uploaded images and the associated Didimo(s) that have not been downloaded will remain accessible by the developer for 30 days. Purchased Didimo’s will remain accessible by the developer for 180 days. 

(together, the "Services")

3.3              For the avoidance of doubt, nothing in these Terms shall oblige the Developer to download DiDiMos.  The Developer acknowledges and agrees that when it confirms the download of the DiDiMo(s) pursuant to clause 3.2(b), its Credits shall be immediately reduced in accordance with clause 6.

3.4              In addition to the completed DiDiMo downloaded by the Developer pursuant to clause 3.1, Didimo may also provide an accompanying API to the Developer. For information regarding our API, please email us at info@mydidimo.com. 

3.5              Didimo shall use reasonable endeavours to provide the Services in accordance with the timelines as displayed on the Website, but any such timelines shall be estimates only and time for performance by Didimo shall not be of the essence of these Terms.

3.6              Didimo warrants to the Developer that the Services will be provided using reasonable care and skill.

3.7              Subject to clause[s] 3.5 [and 3.6], Didimo does not give any warranties, conditions, guarantees or other commitments to the Developer in respect of the quality of the Services or the functionality, performance, service levels, latency or accuracy of the Website, including, without limitation, Didimo does not give any commitment that the performance of the Website will be uninterrupted or error free.  All express or implied warranties in relation to the Services and/or the Website are hereby excluded to the fullest extent permitted by law.

4                   DEVELOPER'S OBLIGATIONS 

4.1              The Developer shall:

(a)       comply with clause 5 in providing the Image to Didimo and, in particular, shall ensure that the Image and/or any other content or material provided to Didimo does not infringe any applicable laws, regulations, codes of conduct, industry standards or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights);  

(b)       comply with all Applicable Laws with respect to its activities under these Terms;

(c)       comply with all applicable technology control or export laws and regulations;

(d)       co-operate with Didimo in all matters relating to the Services; and

(e)       provide Didimo with such information and materials as Didimo may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.

4.2              The Developer shall not [and shall ensure that any third party does not]:

(a)       except to the extent expressly permitted under these Terms, attempt to modify, copy, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute any portion of the API in any form or media or by any means;

(b)       attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the API; or

(c)       remove any Didimo trade mark, logo or other identification mark, copyright notice or any other proprietary notice (as applicable) from the API;

(d)       use the Deliverables contrary to any Applicable Laws; 

(e)       do or permit to be done any act or omission in relation to the performance of its obligations under these Terms which does or may adversely materially affect the reputation, goodwill or image of Didimo.

5                   IMAGES

5.1              The Developer hereby grants to Didimo a worldwide, non-exclusive, royalty-free, sub-licensable licence to use the Image provided by the Developer for the purposes of performing the Services.

5.2              The Developer warrants and represents:

(a)       that it is the owner and/or licensee of the Image and has the right to distribute such Image to Didimo and grant the licence pursuant to clause 5.1; and

(b)       that the Image complies with Didimo's Terms of Website Use.

5.3              Didimo will not be responsible, or liable to any third party, for the content or accuracy of the Image.

5.4              Didimo has the right to remove any Image uploaded to the Website and not provide the Services to the Developer if, in its opinion, such content does not comply with these Terms.

5.5              The Developer is solely responsible for securing and backing up the Image.

5.6              The Developer acknowledges and agrees that Didimo may be legally required to disclose the Image and any related information to a third party, including regulators and other governmental or public bodies and that Didimo may do so without any liability to the Developer.

5.7              The Developer shall indemnify and keep Didimo indemnified in respect of any losses, liabilities, claims, demands, damages, costs and expenses (including legal costs and expenses), incurred or suffered by Didimo arising out of, or in connection with, any claims from any third party that the Image infringes any rights of that third party (including, but not limited to, any Intellectual Property Rights of such third party).

6                   CREDITS

6.1              In consideration of Didimo performing the Services and in order to effect the download of the DiDiMos created by Didimo pursuant to these Terms, the Developer shall have purchased Credits from the Website pursuant to this clause 6.

6.2              The price of the Credits (which includes VAT) will be the price indicated on the order pages before the Developer places an order.  Didimo [takes all reasonable care to ensure] that the price of the product advised to Developers is correct. 

6.3              Didimo accepts payment through Stripe and PayPal payment services and are subject to the respective policies for each of these services. 

6.4              The Developer shall pay all amounts due to Didimo under these Terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.5              The Developer acknowledges that it will need to have the required number of Credits in respect of the number of DiDiMo(s) it wishes to download.  The number of Credits required in respect to DiDiMos are detailed on the Website ("Didimo Pricing") When the Developer downloads a DiDiMo pursuant to clause 3.2(b), the Credits purchased by the Developer shall be decreased in accordance with this agreement.

6.6              Didimo reserves the right to amend the ("Didimo Pricing")

7                   INTELLECTUAL PROPERTY RIGHTS 

7.1              Subject to Clause 7.2, the Developer shall own the Intellectual Property Rights in the DiDiMo(s) downloaded by the Developer pursuant to clause 3.2(b), provided by Didimo pursuant, and subject to, these Terms and Didimo hereby irrevocably and unconditionally assigns with full title guarantee to the Developer all and any Intellectual Property Rights, upon creation of the same, in such DiDiMo(s). Didimo shall, and shall procure that its personnel waive in favour of the Developer absolutely and irrevocably their moral rights (if any) in relation to such DiDiMo(s). 

7.2              Nothing in these Terms is intended to effect Didimo's ownership of materials used or developed by it independently of the Services or Didimo's generic methodologies, tools, technology or processes which are used by it (but not developed by it) in the performance of the Services (together "Didimo's Pre-Existing Materials"). If Didimo's Pre-Existing Materials (or part thereof) are incorporated in the DiDiMos, or required to use or exploit the Services, Didimo hereby grants to the Developer a perpetual, worldwide, [ir]revocable, non-exclusive, royalty-free licence to use Didimo's Pre-Existing Materials to enable the Developer to obtain the full benefit of the Services.

7.3              Didimo warrants and represents that it has the right to assign or license all Intellectual Property Rights granted or assigned pursuant to these Terms [and that, subject always to clause 5.2(a) the grant and terms of its respective assignment or licence shall not infringe the Intellectual Property Rights of any third party.

7.4              The Developer acknowledges that Didimo owns all right, title and interest, including without limitation all Intellectual Property Rights, in the API and, subject to the remainder of this clause 7.4, nothing in these Terms shall effect the transfer of the Intellectual Property Rights in, or ownership of, the API from Didimo to the Developer.  Didimo hereby grants to the Developer a perpetual, worldwide, [ir]revocable, non-exclusive, royalty-free licence to use the API to enable the Developer to obtain the full benefit of the Services.  

8                   LIMITATION OF LIABILITY

8.1              Nothing in this Contract shall limit either party's liability in respect of any claims:

(a)       for death or personal injury caused by the negligence of such party; 

(b)       resulting from the wilful default of such party; or

(c)       for which liability may not otherwise lawfully be limited or excluded.

8.2              Subject to clause 8.1, neither party shall be liable to the other (whether in contract, tort including negligence or otherwise) for any:

(a)       loss of profits or revenue (whether direct or indirect);

(b)       loss of opportunity or anticipated savings (whether direct or indirect);

(c)       loss of goodwill or reputation (whether direct or indirect);

(d)       loss or corruption of data (whether direct or indirect); or

(e)       special, indirect or consequential loss or damage,

suffered by that other party.

8.3              Subject to clause 8.1, Didimo's maximum aggregate liability to the Developer under or in connection with this Contract (whether in contract, tort including negligence or otherwise) shall not exceed in any Year the greater of (i) £10.00; and (ii) the total Credits paid by the Developer to Didimo in that Year.

8.4              This clause 8 shall survive termination of the Contract.

9                   TERMINATION

9.1              The Contract shall start or be deemed to have started on the Commencement Date and shall continue, subject to earlier termination in accordance with these Terms, until terminated by Didimo or the Developer in accordance with [clause 6.6 and] this clause 9.

9.2              Didimo may terminate the Contract for convenience at any time on giving not less than thirty (30) days prior written notice to the Developer.

9.3              Either party may terminate this Contract with immediate effect by giving notice to the other party if the other party: 

(a)       materially breaches this Contract if such breach is not capable of remedy or, where such breach is capable of remedy, where that party fails to remedy the breach within [ten (10)] Business Days of being notified of the breach in writing; 

(b)       becomes or is declared insolvent, has a liquidator, receiver or administrator receiver appointed or passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction) or if a court having proper authority makes an order to that effect;

(c)       enters into administration, is the subject of an administrative order or proposes to or enters into any voluntary arrangement with its creditors in the context of a potential liquidation; 

(d)       is the subject of any events or circumstances analogous to any of the events described in clauses 9.3(b) or 9.3(c) in any applicable jurisdiction; or

(e)       is unable to pay its debts or becomes insolvent or an order is made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer is appointed over all or any substantial part of its assets or it enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction.

9.4              Subject to clauses 9.5 and 9.6, on termination of this Contract, the Developer's rights under this Contract will immediately terminate and Didimo shall cease providing the Services to the Developer.

9.5              Termination of this Contract shall be without prejudice to any rights which may have accrued up to the date of such termination.

9.6              The provisions of clauses 1, 3.7, 4.2, 5.7, 7.2, 7.4, 8, 9, 11.8, 11.10 and 11.10(a) and any other clauses and schedules which by their nature are intended to survive termination of this Contract, shall survive the termination of this Contract for any reason.

10                DATA PROTECTION

The Developer acknowledges and agrees that if it provides any personal data to Didimo via the Website or pursuant to these Terms, that this shall be governed by Didimo's Privacy Policy accessed via: [insert link].  

11                GENERAL

11.1           Force majeure

Didimo shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. 

11.2           Assignment and other dealings

The Developer shall not, without the prior written consent of Didimo, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

11.3           Confidentiality

(a)       Each party undertakes that it shall not [at any time OR at any time during the Contract, and for a period of [five] years after termination of the Contract,] disclose to any person any Confidential Information of the other party, except as permitted by clause 11.3(b).

(b)       Each party may disclose the other party's Confidential Information:

(i)         to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 11.3; and

(ii)        as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)       Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under the Contract.

11.4           Entire agreement

These Terms (including the Privacy Policy and Website Terms of Use) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

11.5           Variation

This Contract may not be modified except by a written addendum or revised set of Terms issued by a duly authorised representative of Didimo.

11.6           Waiver

(a)       A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(i)         waive that or any other right or remedy; or

(ii)        prevent or restrict the further exercise of that or any other right or remedy.

11.7           Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

11.8           Notices

(a)       Any notice or other communication given to a party under or in connection with the Contract shall be via email and addressed as follows:

(i)         to Didimo: 

Attention of: Didimo Notice

 [Email address: info@mydidimo.com

(ii)        to the Developer at the Developer’s registered office or such other address as the Developer may have provided to Didimo in writing, 

and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax [or email].

(b)       A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.8(a); if sent by pre-paid first class post or other next working day delivery service, at [9.00 am] on the [second] Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax [or email], one Business Day after transmission.

(c)       The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.9           Third parties

No one other than a party to the Contract shall have any right to enforce any of its terms.

11.10        Governing law and jurisdiction

(a)       The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

(b)       Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction (save in respect of enforceability of awards) to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.