Last Updated September, 2022
This Platform Policy (the “Policy”) is made by Epigraph, LLC (“Epigraph”) and you the Subscriber (defined below), as of the date hereof. The Policy and the Content Usage Rights shall be included and incorporated by reference to the Subscriber Agreement (defined below).
Epigraph provides a visualization software platform (the “Platform”) that creates content for use in a variety of applications, including, but not limited to, augmented reality (AR), 3D product viewers, 3D product tours, online product configurators, computer generated photography & animations and in custom immersive content such as Virtual Reality (VR), (the “Content”) for use by you, as subscribers (“Subscriber” or “Subscribers”).
By subscribing to the Platform, Subscriber shall receive the following services (the “Services”):
A. Access: Epigraph will provide Subscriber with access to the Platform, allowing Subscriber to submit data for creation of Content, as more fully specified in corresponding transaction documents (collectively, the “Subscriber Agreement”).
B. Implementation: Subscriber will be provided with the applicable files or site code in support of Subscriber’s implementation of Content, in accordance with the corresponding Subscriber Agreement.
C. Secure Hosting: Subscriber data will be stored in a secure, cloud-based content management system that can only be accessed by Epigraph employees and contractors.
D. Tracking & Analytics: Where applicable, Epigraph will implement analytics technology to track user engagement with the Platform, providing performance reporting to Subscriber. Subscriber agrees to grant Epigraph access to analytics to facilitate this implementation.
E. Usage Rights: Subscriber agrees to comply with Content Usage Rights, as defined and set forth in corresponding Subscriber Agreement. Should Subscriber be found to be out of compliance with or in violation of Content Usage Rights, Epigraph hereby reserves the right to automatically bill Subscriber for said unauthorized usage of Content at list price.
F. Review & Revision Policy: (i) 3D Content: For model creation, augmented reality, configurators and/or 3D product viewer Content, Epigraph may provide draft versions of models for accuracy review by Subscriber, which feedback will be incorporated into the final production of 3D Content. (ii) 2D Content: For any on-white/silo, scene images or 360 spinner content, Subscriber agrees to provide brand standards, sample images and art direction as necessary or reasonable to guide image creation process prior to work beginning. Epigraph may provide draft images for review by Subscriber, which feedback will be incorporated into the final production of images. (iii) Interactive & Animated Content: Interactive & animated Content productions typically begin with a visual outline, which may be reviewed and approved by Subscriber prior to production commencing. Production may also include one review of draft content, after which the final product will be produced and delivered.
Reviews may take place via live review or a digital or cloud hosted review platform. Subscriber hereby understands and agrees that incomplete or unclear feedback or other omissions by Subscriber during the review & revision process may result in additional rounds of revision subject to additional fees, at Epigraph’s sole discretion.
G. Bandwidth Policy: Unless otherwise agreed, Subscriber's use of Platform is restricted to 50GB of bandwidth per calendar month, with use in excess of 50GB billed at $1.00 USD per GB used.
H. Implementation Policy: Epigraph will provide necessary documentation and code to support implementation. If Subscriber needs assistance with implementation that falls outside of the agreed upon scope, Epigraph can provide services at the rate of $200 per hour.
I. Fees: Unless otherwise agreed in writing, setup and content creation fees are due upon receipt. License fees are due in advance of each calendar month, beginning the first calendar month after launch, and can be paid either monthly or annually, in advance. Any payments made more than 30 days late are subject to a 3% monthly late fee.
A. Both Parties: Each party represents and warrants to the other that it has the right, power, capacity, and authority to execute, deliver and perform its obligations under this Policy.
B. Subscriber: Without limiting the generality of the foregoing Section 3.A above, Subscriber represents and warrants that the use of the Platform, receipt of Services, and all data hereby furnished or to be furnished to Epigraph does not and will not infringe upon or violate any U.S. patent, copyright, trademark, trade secret, or any other proprietary or intellectual property right of Subscriber or any third party.
A. As between Epigraph and Subscriber, Subscriber owns all Subscriber owned & operated web properties, along with all rights in all associated Subscriber patents, copyrights, trademarks and all other proprietary rights, except for Content as set forth in Section 4.B below.
B. As between Epigraph and Subscriber, Epigraph owns all right, title, and interest in (i) the Platform (ii) the Content (iii) Epigraph’s trademarks; and (iv) any goodwill, derivative works, improvements, modifications and/or intellectual property associated with or created by the foregoing. Unless otherwise agreed to in writing, Epigraph grants Subscriber a limited, nonexclusive, nontransferable, non-sublicensable license to use Platform and Content solely for the purpose of utilizing Platform and Content under the terms of this Policy.
C. Subscriber will not copy, modify, distribute, sell, lease, or otherwise use the Platform and/or Content for any purpose whatsoever except as provided herein and the as more fully set forth in the Subscriber Agreement, or attempt to unlock or bypass any encryption or other protections used by Epigraph or any initialization system, and will not provide access to the Platform to any third party without the express written permission of Epigraph.
D. Subscriber agrees to comply with Content Usage Rights as specified in corresponding Agreements, and as specified below:
(i) Owned & Operated (formerly "Web Site"): Content can only be displayed on Subscriber owned & operated web properties.
(ii) Channel (formerly "Digital Media"): Content may be displayed on non-Subscriber owned digital properties, including on retailer web sites or mobile applications, on social media properties, in mobile applications, in digital advertising placements or shopping feeds and on digital news sites. Any such usage must be specified, at the URL, channel or app level, in corresponding signed agreements.
(iii) Universal: A universal license allows Content to be used on Web Sites, Digital Media and in Print, including for packaging, outdoor, signage, tradeshow booths, catalogs and other print media.
Epigraph provides the platform & services “as is” and “as available”. Epigraph makes no guarantee regarding conversions, transactions, or other user-engagement metrics that the services may achieve. To the extent permitted by law, epigraph disclaims all warranties, express, statutory or implied, including warranties of noninfringement, merchantability, and fitness for a particular purpose. Without limiting the foregoing, epigraph does not warrant that the services will be error-free, that defects will be corrected, or that platform or services will operate on all user devices. These disclaimers are an essential basis of the bargain between the parties.
A. Subscriber, at its own expense shall indemnify, defend, and hold Epigraph harmless and its employees, directors, officers, representatives, agents, ad providers, and affiliates against all third-party claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses, (“Claim” or “Claims”) including but not limited to those directly or indirectly as a result of (a) Subscriber’s or any resellers or sub-clients’ breach of this Policy or Subscriber Agreement; or (b) Subscriber’s or any resellers’ or sub-clients’ violation of any applicable law; or (c) any content, goods or services offered, sold or otherwise made available by Subscriber to any person as part of its promotion or marketing campaigns; or (d) any violation by Subscriber of any rights of another, including breach of a person’s or entity’s intellectual property rights.
B. Subscriber shall control the defense of the Claim and will not enter into any settlement or compromise of any Claim without Epigraph’s prior written consent, provided however that Epigraph shall reserve and retain all notice and consent rights if it is named in the lawsuit. Subscriber will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys’ fees and costs, awarded against or otherwise incurred by Epigraph in connection with or arising from any Claim.
To the extent permitted by law and except for gross negligence, willful misconduct and each party’s confidentiality and indemnification obligations, in no event shall epigraph, its affiliates or partners, be liable under this policy for any consequential, incidental, special, indirect, exemplary, or punitive damages whether in contract, tort or any other theory, even if epigraph, its affiliates or partners, have been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. The total liability of any party for any direct damages shall not exceed one hundred dollars ($100). Each party acknowledges that these limitations are an essential basis of the bargain between the parties.
“Confidential Information” is defined as any information, knowledge, materials and/or factual data related to: (i) technical information, processes, know-how, formulas, developmental or experimental work, compilations, data bases, prototypes, collaborations, patentable and unpatentable and/or copyrightable and uncopyrightable technical information, description of business concepts, design concepts, designs, drawings, working drawings, means of implementation and manufacture, software materials (both object code and source code, plus documentation in the form of software notes), and all other confidential information relating, in any manner, to the concept design or technology of Epigraph; (ii) trade names, trademarks, service marks, graphics, logos, product and/or service concepts and/or lines, customer lists, marketing sources and strategies and other marketing information and distribution techniques; (iii) business plans, financial information or other subject matter pertaining to a business of Epigraph or any of its customers, sponsors, collaborators, consultants or licensees; (iv) conceptualization, design, manufacture, production, distribution, financing, advertising and marketing of the products, services and business of Epigraph; and (v) all other proprietary information or trade secrets of Epigraph, including intellectual property information, whether in electronic, oral or written form, and all memoranda, summaries, notes, analyses, compilations, studies or other documents prepared by Subscriber which contain or reflect such information. The contents or existence of discussions related to Epigraph’s business process development constitute Confidential Information. The Platform and any nonpublic data regarding the Services, or Epigraph, (including any reports provided by Epigraph to Subscriber and information related to the performance of the Services) are Epigraph’s Confidential Information. Subscriber covenants and agrees: (i) Subscriber shall not, at any time, directly or indirectly, communicate, disclose, disseminate, lecture upon or publish articles concerning the Confidential Information; (ii) Subscriber shall not knowingly aid anyone else in such communication, disclosure, dissemination, lecturing or publishing; (iii) Subscriber shall not otherwise use the Confidential Information in any manner whatsoever, except as provided herein and under the Subscriber Agreement, without the prior written consent of the Company; (iv) to take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized by this Policy to have any such information; and (v) to promptly notify Epigraph in writing of any misuse or misappropriation of the Confidential Information which may come to Subscriber’s attention.
A. Marketing/Press Releases/Public Announcements: Subscriber grants Epigraph the express right to use Subscriber’s company logo and/or trademark in marketing, sales and other public relations materials and communications solely to identify Subscriber as an Epigraph partner. Subscriber agrees to identify Epigraph by name, with links to Epigraph’s website where possible, for any marketing, press releases, public announcements or comments to media that mention Subscriber’s use of the Platform, augmented reality or 3D visualization technology.
B. No Other Representations; Conflict: There are no representations, warranties, conditions, interpretations, or other agreements, express or implied, statutory or otherwise, between the parties in connection with the subject matter of this Policy, except as specifically set forth herein. Subscriber agrees that Epigraph shall not be responsible for, be bound by or liable to Subscriber for any statement made directly or indirectly by an employee, affiliate, consultant, or representative of Epigraph that contradicts, repudiates, misinterprets or excuses Subscriber from complying with Policy. To the extent there is a conflict between Policy and Subscriber Agreement, the terms of the Subscriber Agreement shall govern.
C. Excusable Delays: Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its control and without its fault or negligence.
D. Notices: Notices must be in writing and will be deemed given when sent by email. Notices sent to Epigraph shall be sent to email@example.com with the words “LEGAL NOTICE” in the subject line.
E. Applicable Law: The construction and interpretation of this Policy shall, at all times and in all respects, be governed by the laws of the State of Missouri.
F. Jurisdiction; Venue: The parties agree that the sole and exclusive jurisdiction and venue for all disputes arising under this Policy shall be in the federal and state circuit and appellate courts sitting in or exercising jurisdiction over Jackson County, Missouri, and each party hereby submits to the personal jurisdiction of such courts.
G. Entire Agreement: Policy and corresponding Subscriber Agreement constitute the entire agreement between Epigraph and Subscriber regarding the subject matter of this Policy. No prior or contemporaneous written, electronic, or oral representation form a part of Policy, and Policy supersedes any and all prior and contemporaneous electronic, oral or written agreements, negotiations, understandings, and representations made by Epigraph and Subscriber relating in any way to the subject matter herein.
H. Severability; Survival: If any provision of Policy is found unenforceable, the balance of Policy will remain in full force and effect and the unenforceable provision will be interpreted to be as close to the parties’ intention as possible while still being enforceable.
I. Individual Claims: Subscriber must bring any claims in its individual capacity and not as a plaintiff or member in any class action or similar proceeding.