Terms of Service

Please read these terms of service (“Terms of Service”) and any product or service descriptions (collectively, this “Agreement”) with care. This Agreement is between you and Magnetic Media Holdings, Inc. and its affiliates, the (“Company”) doing business as “Magnetic 3D” or herein otherwise referred to as (“M3D" , “Magnetic”, “we”, “us”, or “our”), and governs your access to a variety of services provided by the Company, including physical goods, hardware, software, online or platform-based services which may include software delivered as-a-service, software updates, websites, content, applications and solutions collectively referred to herein as our "Products", “Software” or "Services".

You may enter into this Agreement on behalf of yourself or on behalf of a legal entity. If you enter into this Agreement on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting.

We may provide the Products, Services and Software through Magnetic Media Holdings, Inc, our affiliate(s), or both. You may only use the Products, Services and Software in accordance with the terms and subject to the conditions of this Agreement.

These following terms and conditions ("Terms") apply to access and to use of any of our Products, Services, or Software as well as any online orders or pre-orders ("Orders") and or any (“Proposals”). These Terms do not modify the terms or conditions of any other agreement you may have with Magnetic Media Holdings, Inc. or its affiliates for products, services, software, or otherwise.

BE AWARE THAT BY USING OUR PRODUCTS, SERVICES, AND SOFTWARE YOU BOTH ACKNOWLEDGE AND AGREE THAT YOU ARE BOUND BY THESE TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY BINDING AGREEMENT. IT IS IMPORTANT TO READ THESE TERMS AND CONDITIONS CAREFULLY IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OR USE OUR SERVICES.

At this time, you certify that you have reached the legal age of majority in your jurisdiction, or if you are between the ages of 13 and the legal age of majority, that you are using the products, services and software under the supervision of a parent or legal guardian who agrees to these terms and conditions. We recommend that you review these terms and conditions with your parent or guardian to understand your rights and obligations.

Please note, if you are accessing the Products, Services or Software on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on the entity's behalf and that the entity agrees to be responsible for any violations of these Terms by you or the entity.

WE RESERVE THE RIGHT TO MODIFY, REPLACE, OR UPDATE THESE TERMS AT ANY TIME, AT OUR SOLE DISCRETION, WITH OR WITHOUT PRIOR NOTICE. ANY CHANGES WILL TAKE EFFECT IMMEDIATELY UPON BEING POSTED PUBLICLY, SO WE ENCOURAGE YOU TO CHECK THIS PAGE PERIODICALLY. YOUR CONTINUED USE OF OUR PRODUCTS, SERVICES OR SOFTWARE FOLLOWING ANY CHANGES INDICATES YOUR ACCEPTANCE OF THE MODIFIED TERMS.

1.0 ACCOUNT INFORMATION; SHARING

1.1 Registration; Username and Passwords. You may be required to provide information about yourself to register for and to access or use the Products, Services and Software. You represent and warrant that any such information, including Customer Data, is and will remain accurate and complete, and that Magnetic 3D has no liability whatsoever for errors and omissions in your Customer Data. You may also be asked to choose a username and password to access or use the Products, Services and Software. We may reject, or require that you change, any such username or password, in our sole discretion. You are entirely responsible for maintaining the security of your username and password, and you agree not to disclose or make your username or password accessible to any third party.

1.2 Prohibition on Sharing. You may not share your account with any other user or individual, unless otherwise expressly pre-approved by Magnetic 3D in writing. You may not share any login credentials or passwords regarding the foregoing with any other individual. You acknowledge that sharing of any such rights is strictly prohibited. Your right to use or access the Products, Services and Software is personal to you and not assignable or transferable. You may not assign or transfer any account, or any other user rights with any other individual, except upon (i) an individual termination of employment or relationship with their employer, as applicable, or (ii) Magnetic 3D’s prior express written approval.

2.0 ORDERING PRODUCTS, SERVICES, SOFTWARE

2.1 Order Form. You may order the Products and Services from Magnetic 3D through an online registration or order form through the Company’s website or Proposals delivered via Panda Doc or other electronic documents which have been approved and authorized by Magnetic 3D (each herein referred to as an “Order Form” or a “Proposal”). Any order for Products, Services or Software made pursuant to an Order Form or Proposal is subject to the terms of this Agreement. An Order Form or Proposal may contain additional or different terms, conditions, and information regarding the Products, Services and Software you are ordering as authorized and agreed to by Magnetic 3D. In the event of any conflict or inconsistency between this Agreement and any Order Form or Proposal authorized and agreed to by Magnetic 3D, the applicable Order Form controls and governs over this Agreement, to the extent necessary to resolve the particular conflict or inconsistency only. Magnetic 3D will provide the Products, Services and Software set forth in your Order Form, fully executed Proposal or an accepted (“Purchase Order”). Magnetic 3D may, in its sole discretion, (i) discontinue the Products, Services, or Software, or (ii) modify the features or functionality of an Products, Services or Software at any time.

2.2 Purchase Commitment. You agree to Purchase the Products, Services, or Software set forth on your submitted Order Form, Executed Proposal, or Purchase Order, including any applicable Initial Subscription Term or then-current Renewal Term for any Products, Services or Software.

2.3 Outstanding Balance; Late Payment. Without limiting our rights in this Agreement, you acknowledge that Magnetic 3D is not required to provide any new Products, Services or Software set forth in an Order Form, Proposal or Purchase Order until all outstanding balances due and owing for existing Products, Services or Software are paid in full.

3.0 ACCESS AND USE; SOFTWARE LICENSE

3.1 Access and Use; Software License. Subject to the terms and conditions of this Agreement, you may access and use, during the Initial Subscription Term or then-current Renewal Term, the Services as set forth on each applicable Order Form. If access to or use of any portion of the Products, Services or Software requires or allows for you to download, use, or install Magnetic 3D software (“Software”), Magnetic 3D grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to access and use the Products and Services during the applicable Initial Subscription Term or then-current Renewal Term. You acknowledge and agree that your access to and use of the Products, Services and Software under this Section 3.1 (and as otherwise provided in this Agreement) are revocable in Magnetic 3D’s sole discretion.

3.2 Documentation License. Subject to the terms and conditions in this Agreement, Magnetic 3D grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license for you to use Magnetic 3D-provided product and services documentation (“Documentation”) solely for your internal business purposes in connection with use of the Products, Services or Software during the applicable Initial Subscription Term or then-current Renewal Term.

3.3 Ownership of Software and Services. You acknowledge that, notwithstanding anything to the contrary herein, the Software and Services are provided to you on a subscription basis, and the Software and Documentation is provided to you under a limited license, and neither has been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Services, Software, or Documentation or any Proprietary Rights relating thereto. Any copies of Software will remain the exclusive property of Magnetic 3D. The Software may include code that is licensed to you under third party license agreements, including open source software made available or provided with the Software. Without limiting the generality of the foregoing, Magnetic 3D owns all right, title, and interest in and to all upgrades, enhancements, new releases, changes, and modifications to the Services or Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services and Software. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Services, Software, or Documentation, title to which at all times vests exclusively in Magnetic 3D. None of the Services, Software, or Documentation, or any component thereof, is or shall be deemed to be a “work made-for-hire,” as that term is defined in 17 U.S.C. § 101.

4.0 RESPONSIBILITY FOR USE AND END USERS

4.1 Use of the Products, Software, Services; End User Responsibility. You will, and you will cause your End Users to, abide by and ensure compliance with, all the terms and conditions of this Agreement. Use of the Products, Software or Services are void where prohibited. You are responsible for your and your End Users’ access to and use of the Products, Services and Software. You are responsible for the activities of all your End Users, including ensuring that all End Users will comply with the terms and conditions of this Agreement and any applicable Magnetic 3D policies. You acknowledge that you remain liable for the acts and omissions of any third party that you allow, enable, or otherwise provide access to the Products, Services or Software, whether or not such access was expressly permitted by Magnetic 3D.

4.2 Violations by End Users or Third Parties. Magnetic 3D assumes no responsibility or liability for violations of this Agreement by End Users or any other third party that you allow, direct, or enable to access the Products, Services or Software. If you become aware of any violation of this Agreement in connection with use of the Products, Services or Software by any person, you must contact Magnetic 3D via email at support@magnetic3d.com

4.3 Liability for Content and Data. Under no circumstances will Magnetic 3D be liable in any way for any data or other content viewed while using the Products, Services, or Software including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content.

4.4 Investigation of Use. Magnetic 3D may investigate any complaints and violations that come to our attention and may take any action, in its sole discretion, including issuing warnings, suspending or disconnecting the Products, Services or Software, removing the applicable data or other content, terminating accounts or End User profiles, or taking other reasonable actions in its sole discretion.

5.0 SYSTEM REQUIREMENTS; CHANGES

Your use of the Products, Services and Software requires one or more compatible devices, Internet access, and certain third-party software, and you may be required to obtain updates or upgrades from time to time for Software or third-party software, which may result in additional costs to you. Because use of the Products, Services and Software involves hardware, software, and Internet access, your ability to access and use the Products, Services and Software may be affected by the performance of the foregoing. High-speed Internet access is recommended. You are solely responsible for any fees that may apply to your access to or use of the Products, Services and Software, including fees for hardware, software, Internet access, or text messages. You agree that the foregoing requirements are your responsibility, and Magnetic 3D may, in its sole discretion, discontinue availability or compatibility of the Products, Services or Software, on a particular operating system, device, or platform.

6.0 USE OF BETA SERVICES

If you use any beta services, products, or software offered or made available by Magnetic 3D, then you acknowledge that your use of the services, products, or software are governed by this agreement and any addendum’s to this agreement as shared on Magnetic 3D’s support pages.

7.0 PROHIBITED USES

You agree that you will not, and will not permit any End Users to, use the Products, Services or Software, directly or indirectly to: (i) modify, customize, disassemble, decompile, prepare derivative works of, create improvements, derive innovations from, reverse engineer, or attempt to gain access to any underlying technology of the Products, Services or Software, including any source code, process, data set or database, management tool, development tool, server or hosting site; (ii) knowingly or negligently use the Products, Services or Software in a way that abuses, interferes with, or disrupts Magnetic 3D’s platform, website, networks, your account, or any other user rights, or the Products, Software or Services to; (iii) engage in activity that is illegal under applicable Law, fraudulent, false, or misleading; (iv) transmit through the Products, Services or Software any material that may infringe, misappropriate, or violate the Proprietary Rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Products, Services or Software; (vi) use the Products, Services or Software for the development, production, or marketing of a service or product substantially similar to the Products, Services or Software; (vii) use the Products, Services or Software to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would infringe or violate the Proprietary Rights of any party, or is otherwise unlawful, or would give rise to civil or criminal liability, under any applicable Law; (viii) upload or transmit any software, Customer Content, or code that does or is intended to harm, disable, destroy, or adversely affect performance of the Products, Services or Software in any way or which does or is intended to harm or extract information or data from other hardware, software, networks, or other users of the Products, Services or Software; (ix) engage in any activity or use the Products, Services, Software, or your account in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt Products, Services, Software, or any servers or networks connected to the Services or Magnetic 3D security systems; (x) use the Products, Services or Software in violation of any Magnetic 3D policy or in a manner that violates applicable Law, including anti-spam, import and export control, intellectual property, privacy, anti-terrorism, anti-bribery, foreign corrupt practices, and any other Laws; (xi) remove, delete, alter, or obscure any Proprietary Rights notices provided on or with the Products, Services or Software, including any copy thereof; (xii) make, use, or offer the Products, Services or Software for lease, rent, or sale, without prior authorization in writing from the Company, or reproduce, resell, distribute, publish, display, assign, transfer, sublicense, lend, use on a timeshare or service bureau basis, or use the Products, Services or Software for any commercial or other purpose that is not expressly permitted by this Agreement; or (xiii) make available the Products, Services or Software, or any features or functionality thereof, to any third party for any reason or by any manner, unless expressly permitted by this Agreement or otherwise expressly agreed to in writing by you and Magnetic 3D.

8.0 COMPLIANCE WITH LAWS

You are solely responsible for your and your End Users’ compliance with all Laws that apply to your and your End Users’ access to and use of the Products, Services and Software, including Laws requiring you to provide proper End User notifications and to obtain proper End User consents, which may be necessary to allow Magnetic 3D and Magnetic 3D’s authorized third parties to access, use, modify and share Customer Content. You shall comply with, and ensure that all End Users comply with, all applicable Laws in connection with your obligations under this Agreement, including access to and use of the Products, Services and Software.

9.0 CUSTOMER CONTENT

9.1 Customer Content. You or your End Users may provide, upload, or originate data, content, files, documents, or other materials (collectively, “Customer Input”) in accessing or using the Products, Services or Software, and Magnetic 3D may provide, create, or make available to you, in its sole discretion or as part of the Products, Software and Services, certain derivatives, transcripts, analytics, outputs, visuals, renderings, conversions, reinterpretations, resulting from the Customer Input (together with Customer Input, “Customer Content”) whether in an image, video or executable format for displaying offline or in real-time in 3D format; provided, however, that no Customer Content provided, created, or made available by Magnetic 3D results in any conveyance, assignment, or other transfer of Magnetic 3D’s Proprietary Rights contained or embodied in the Products, Services, Software, or other technology used to provide, create, or make available any Customer Content in any way and Magnetic 3D retains all Proprietary Rights therein. You further acknowledge that any Customer Content provided, created, or made available to you by Magnetic 3D is for your or your End Users’ use solely in connection with use of the Products, Services, and Software and that you are solely responsible for Customer Content.

9.2 Service Generated Data; Consent to Use. Customer Content may be subject to product usage data, diagnostic, or analytics data, which may be collected by Magnetic 3D to measure, among other uses, the performance of its Products, Services and Software as well as the effect, whether positive or negative on viewers or consumers of Customer Content. Any data generated in connection with your or your End Users’ use of the Products, Services or Software the (“Service Generated Data”) shall exclusively belong to Magnetic 3D. For the avoidance of doubt, Magnetic 3D, shall retain all right, title, and interest in and to Service Generated Data, and all Proprietary Rights therein, belong to and are retained solely by Magnetic 3D. You agree that Magnetic 3D compiles and may compile Service Generated Data based on Customer Content and use of the Products Services and Software. You consent to Magnetic 3D’s access, use, collection, creation, modification, distribution, processing, sharing, maintenance, and storage of Service Generated Data for any purpose, to the extent and in the manner permitted under applicable Law, including for the purpose of product and service development, marketing, analytics, quality assurance, machine learning or artificial intelligence (including for the purposes of training and tuning of algorithms and models), training, testing, improvement of the Products, Services, Software, or Magnetic 3D’s other products, services, and software, or any combination thereof, and as otherwise provided in this Agreement. In furtherance of the foregoing, if, for any reason, there are any rights in such Service Generated Data which do not accrue to Magnetic 3D under this Section 9.2 or as otherwise provided in this Agreement, you hereby unconditionally and irrevocably assign and agree to assign to Magnetic 3D on your behalf, and you shall cause your End Users to unconditionally and irrevocably assign and agree to assign to Magnetic 3D, all right, title, and interest in and to the Service Generated Data, including all Proprietary Rights relating thereto.

9.3 Permitted Use; Customer Content. Magnetic 3D may redistribute, compile, publish, import, export, access, use, store, transmit, review, disclose, preserve, extract, modify, reproduce, convert, share, use, display, copy, distribute, translate, transcribe, promote, showcase, create derivative works, and process Customer Content: (i) in accordance with this Agreement and as required to perform our obligations under this Agreement; (ii) in accordance with our Privacy Statement; (iii) as authorized or instructed by you; (iv) as permitted or required by Law; (v) for trust and safety purposes, including monitoring and enforcing our requirements for or of acceptable use; or (vi) to protect the rights, property, or security of Magnetic 3D, its end users, customers, or the public, including systems and networks; (vii) for marketing and promotional purposes on Magnetic 3D’s website, marketing materials, social media, youtube, vimeo and other sites at Magnetic 3D’s sole and exclusive discretion.

9.4 Customer License Grant. You agree to grant and hereby grant Magnetic 3D a perpetual, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary to redistribute, compile, publish, import, export, access, use, store, transmit, review, disclose, preserve, extract, modify, reproduce, convert, share, use, display, copy, distribute, translate, transcribe, promote, showcase, create derivative works, and process Customer Content and to perform all acts with respect to the Customer Content: (i) as may be necessary for Magnetic 3D to provide the Products, Services or Software, to you, including to support the Products, Services and Software; (ii) for the purpose of Product, Service and Software development, marketing, analytics, quality assurance, machine learning, artificial intelligence, training, testing, improvement of the Products, Services, Software, or Magnetic 3D’s other products, services, and software, or any combination thereof; and (iii) for any other purpose relating to any use or other act permitted in accordance with Section 9.3. If you have any Proprietary Rights in or to Service Generated Data or Aggregated Anonymous Data, you hereby grant Magnetic 3D a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary to enable Magnetic 3D to exercise its rights pertaining to Service Generated Data and Aggregated Anonymous Data, as the case may be, in accordance with this Agreement.

9.5 Our Obligations Over Your Customer Content. Magnetic 3D will maintain reasonable and appropriate physical and technical safeguards to prevent unauthorized disclosure of or access to Customer Content provided by you to Magnetic 3D. Magnetic 3D will notify you if it becomes aware of an unauthorized disclosure or unauthorized access to Customer Content. Magnetic 3D will only access, use, collect, maintain, process, store, and transmit Customer Content in accordance with this Agreement, which may include Magnetic 3D’s consultants, contractors, service providers, subprocessors, and other Magnetic 3D-authorized third parties accessing, using, collecting, maintaining, processing, storing, and transmitting Customer Content on Magnetic 3D’s or your (or your End Users’) behalf in connection with the Products, Services or Software. Magnetic 3D will ensure that any sharing of Customer Content with an authorized third party will be in compliance with applicable Law. Magnetic 3D has no other obligations with respect to Customer Content.

9.6 Customer Responsibilities, Acknowledgement, and Consents. You agree that you are solely responsible for the Customer Content sent, uploaded, displayed, or transmitted in the use of the Products, Services or Software, including its accuracy, and for compliance with all Laws pertaining to the Customer Content, including Laws requiring you to obtain the consent of a third party to use Customer Content and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload Customer Input and for Magnetic 3D to provide, create, or make available any Customer Content to you, and that such use or provision by you, your End User, or Magnetic 3D does not violate or infringe any rights of any third party. Under no circumstances will Magnetic 3D be liable in any way for (i) your Customer Content that is transmitted or viewed while using the Products, Services or Software, or (ii) errors or omissions in the Customer Content, or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Customer Content. Magnetic 3D may delete any Customer Content, at any time without notice to you, if Magnetic 3D becomes aware that it violates any provision of this Agreement or any applicable Laws. As between you and Magnetic 3D, you retain all ownership rights in your Customer Content, subject to any license or other rights granted herein, and without limiting any of Magnetic 3D’s Proprietary Rights set forth herein.

10.0 ELIGIBILITY; RESTRICTION ON USE BY CHILDREN

10.1 Eligibility. You affirm that you are of legal age to enter into this Agreement and to use the Products Services and Software. You affirm that you are otherwise fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. Your access may be terminated without warning if it comes to our attention that you are under the legal age to enter into this Agreement or are otherwise ineligible to enter into this Agreement or to use the Products, Services and Software.

10.2 Restrictions on Use by Children. Magnetic 3D is not intended for use by individuals under the age of sixteen (16) years old without consent of a legal guardian.

11.0 PAYMENTS AND CHARGES

11.1 Charges. You agree that Magnetic 3D may charge your credit card, debit card, bank account, or other payment mechanism selected by you and approved by Magnetic 3D (“Payment Method”) for all amounts due and owing in connection with your use of the Products, Services or Software, as set forth in the applicable Order Form, Proposal or otherwise used or ordered by or for you through the Products, Services, or Software including set up fees, one-time fees, non-recurring fees, overages, per-use charges, subscription fees, recurring fees, and any other fees and charges associated with the Products, Services or Software on your account (“Charges”). As provided in Section 12, unless otherwise expressly specified an Order Form or Proposal, all Charges are exclusive of Taxes and Fees. You agree to promptly update your Payment Method to allow for timely payment. Changes made to your Payment Method will not affect Charges that Magnetic 3D submits to your chosen Payment Method before Magnetic 3D could reasonably act on your changes. Additionally, you agree to permit Magnetic 3D to use any updated Payment Method information provided by your issuing bank or the applicable payment network and to charge your current primary Payment Method by using the details of such Payment Method saved in our system, even if such Payment Method is declined. Magnetic 3D further reserves the right to use your backup Payment Method to the extent one is provided. By adding a backup Payment Method, you authorize Magnetic 3D to process any applicable Charges on your backup Payment Method if your primary Payment Method is declined.

11.2 Non-Cancelable and Non-Refundable Charges. You agree that all orders and payments thereof are non-cancelable and are final and non-refundable, unless otherwise agreed to by Magnetic 3D, required by Law, or otherwise agreed to in writing.

11.3 Changes to Pricing. Magnetic 3D may change prices for the Products, Services or Software at any time, in its sole discretion. For changes to your Charges, Magnetic 3D will provide you with not less than (i) thirty (30) calendar days prior notice, or (ii) the time period prescribed by applicable Law (each, (i) and (ii), a “Rate Change Notice”). Unless prohibited by the terms of your Order Form, any changes to your Charges will be effective upon the commencement of your next Renewal Term or other date calculated in accordance with applicable Law. If you seek to terminate or modify the Services affected by a Rate Change Notice, then you must terminate or modify your affected Services within the applicable Rate Change Notice time period. If you do not terminate or modify the affected Services within the applicable Rate Change Notice time period, then you shall be deemed to have automatically accepted the change to your Charges, unless your affirmative, express consent to such change is required under applicable Law. If required by applicable Law, we will remind you of your termination and modification right, any applicable time-period, and the consequences of not terminating.

11.4 Promotional Rates and Discounts. Prices specified in an Order Form or Proposal may include a promotional rate, discount, sale, or special offer, which may be temporary and may expire (i) per the terms of the offer, or (ii) upon the commencement of a Renewal Term. The expiration of the discount or promotional pricing may expire without additional notice to you, unless specified in an Order Form or as required by applicable Law. Magnetic 3D reserves the right to discontinue or modify any promotion, discount, sale, or special offer in its sole discretion at any time.

11.5 Collection of Charges. You agree that if Magnetic 3D is unable to collect the Charges for the Products, Services or Software through your Payment Method, Magnetic 3D may, to the extent not prohibited by applicable Law, take any other steps it deems necessary to collect such Charges from you and that you will be responsible for all costs and expenses incurred by Magnetic 3D in connection with such collection activity, including collection fees, court costs, and attorneys’ fees. You further agree that, to the extent not prohibited by applicable Law, Magnetic 3D may collect interest at the lesser of 1.5% per month or the highest amount permitted by Law on any Charges not paid when due.

11.6 Support Services and Updates. Magnetic 3D will provide, at no additional costs, (i) standard support as set forth in our then-current Documentation (see Magnetic 3D’s Support and Resources area at www.Magnetic 3D.com), and (ii) standard updates to the Products, Services and Software that are made generally available by Magnetic 3D to similarly situated customers in the same geographic region during the Initial Subscription Term or any applicable Renewal Term. In accordance with applicable Law and the terms of this Agreement, Magnetic 3D reserves the right to (a) modify its standard support and charge you for standard support and (b) charge you for any updates to the Products, Software, Services or for any premium features or functionality.

11.7 Termination or Suspension for Nonpayment. Without limiting our rights in any other section of this Agreement, including 13.3, if any failure to pay Charges continues for five (5) calendar days following the due date, Magnetic 3D may terminate, suspend, or disconnect your Products, Services or Software immediately and without prior notice.

11.8 Billing Communications. You agree that Magnetic 3D may contact you via email or otherwise at any time with information relevant to your use of the Products, Services or Software, including billing communications, regardless of whether you have opted out of receiving marketing communications or notices.

11.9 Withdrawal; Cooling-Off Period. If under applicable Law you have a time period to terminate your use of the Products, Services or Software based on a right of withdrawal, or a cooling-off period, you may request to terminate the affected Products, Services or Software in accordance with applicable Law and, if applicable, receive a pro rata refund of any prepaid and unused Charges. If the Services begin before any withdrawal or cooling-off period, or you fail to terminate your Services during the right of withdrawal or cooling-off period, then you acknowledge that you lose any termination rights under this Section 11.9. Nothing in this Section 11.9 is intended to limit or exclude any of your rights that cannot be limited or excluded under applicable Law.

12.0 TAXES

12.1 Taxes and Fees. Unless otherwise expressly specified by Magnetic 3D as required by applicable Law, all prices shown by Magnetic 3D and Charges for the Products, Services or Software on your account are exclusive of Taxes and Fees. Where applicable, Taxes and Fees will be charged on the invoices issued by Magnetic 3D in accordance with applicable Laws. Magnetic 3D, in its sole discretion, will (i) calculate the amount of Taxes and Fees due, and (ii) change such amounts without notice to you.

12.2 VAT Invoices. If required by Law, Magnetic 3D will issue a VAT invoice, or a document that the relevant taxing authority will treat as a VAT invoice, to you. You agree that this invoice may be issued electronically.

12.3 Tax exemptions. If you are exempt from any Taxes and Fees, you will provide Magnetic 3D with all appropriate tax exemption certificates, and/or other documentation satisfactory to the applicable taxing authorities, to substantiate such exemption status. Magnetic 3D reserves the right to review and validate tax exemption documentation. If the tax exemption documentation is not provided or not valid, Magnetic 3D reserves the right to charge applicable Taxes and Fees to you.

12.4 Payment of Taxes and Withholding. You will pay Magnetic 3D, and you are solely responsible for, any applicable Taxes and Fees. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding Taxes and Fees, as may be required by applicable Law. If any such deduction or withholding Taxes and Fees (including domestic or cross-border withholding taxes) are required on any payment, you will pay such additional amounts as necessary, such that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

12.5 Value-Added Tax – Customer Obligations. If Taxes and Fees are due towards the taxing authorities by you instead of Magnetic 3D, through the reverse charge or other similar mechanism, you will provide Magnetic 3D with all appropriate evidence for Magnetic 3D to demonstrate your business nature, such as a valid VAT registration number (or similar information required under the relevant VAT Laws). Magnetic 3D reserves the right to review and validate your VAT registration number. If the VAT registration number is not valid, Magnetic 3D reserves the right to nevertheless charge the applicable VAT to you. For the avoidance of doubt, if VAT is due by you to a taxing authority, through the reverse charge or other similar mechanism, you are solely responsible for paying those amounts to the relevant taxing authority, such that Magnetic 3D receives the full amount of payment required.

12.6 Tax Determination. Tax determination is principally based on the location where you have established your business based on your Customer Data, or if you are an individual, where you permanently reside. This location will be defined by Magnetic 3D as your ‘Sold To’ address. Magnetic 3D reserves the right to cross reference this location against other available evidence to validate whether your location is accurate. If your location is inaccurate, Magnetic 3D reserves the right to charge you any outstanding Taxes and Fees.

12.7 Use and Enjoyment. If you subscribe to any Products, Services, or Software and those Products, Services or Software are used and enjoyed by a subsidiary of you in a country that is different from your location as determined pursuant to Section 12.6, you confirm that, where required, you will treat this as a supply to your subsidiary. If you subscribe to the Products, Services or Software and those Products, Services or Software are used and enjoyed by a branch or individual in a country that is different to your location as determined pursuant to Section 12.6, you acknowledge that you will inform Magnetic 3D of the Products, Services or Software that have been allocated, and you acknowledge that Magnetic 3D reserves the right to charge Taxes and Fees based on the use and enjoyment of those Products, Services and Software.

13.0 TERM; TERMINATION AND SUSPENSION

13.1 Term; Automatic Renewal. Each Order Form or Proposal will specify your Products, Services or Software including the Initial Subscription Term and any applicable Renewal Term for any Products, Services or Software. Unless your Order Form or Proposal expressly states otherwise or applicable Law prohibits automatic renewal, each Renewal Term for the Products, Software or Services will begin automatically at the end of the then-current Initial Subscription Term or Renewal Term, as the case may be, unless either party provides written notice of termination or modification of the Services provided under such Order Form or Proposal (i) at least thirty (30) calendar days prior to the commencement of the next Renewal Term, or (ii) within the notice period required by applicable Law (collectively, (i) and (ii), the “Renewal Notice Period”). In order to terminate or modify the affected Products, Services or Software, you must provide notice to Magnetic 3D, via the billing portal (if available for your account) or in an email to support@magnetic3d.com in accordance with the Renewal Notice Period. Any statutory rights you may have under the applicable Laws to terminate your use of the Products, Services or Software at an earlier time during the Initial Subscription Term or any given Renewal Term remains unaffected by this clause, and, if required by applicable Law, we will send you a reminder notice prior to the commencement date of the Renewal Term (and in accordance with the notice periods specified in this Agreement or other such deadline set by applicable Law that may apply to you) reminding you of your right to terminate the affected use of Products, Services or Software and how to do so.

13.2 Customer Termination. You may terminate by reaching out to Support@magnetic3D.com and request to cancel or terminate your account. If you have subscribed to one or more Products, Services or Software for a specific term, such termination will be effective as to each such Product, Service or Software on the last day of the then-current term for each applicable Product, Service, or Software if any only if you have provided proper and timely notice pursuant to Section 13.1. You may terminate this Agreement by providing written notice of termination if Magnetic 3D has materially breached this Agreement and has not cured such material breach within sixty (60) business days of Magnetic 3D ’s receipt of your written notice of such breach. Your notice shall state the specific provision in this Agreement that you contend Magnetic 3D has breached and set forth in reasonable detail the facts and circumstances you allege provide the basis for such breach.

13.3 Magnetic 3D Termination Rights and Suspension. Notwithstanding anything to the contrary herein, if you fail to comply with any provision of this Agreement or any referenced policies, guides, notices, or statements, Magnetic 3D may (i) immediately suspend your access to the Products, Services, or Software (ii) terminate this Agreement, effective immediately. If Magnetic 3D chooses to suspend your Products, Services or Software and the failure to comply continues, Magnetic 3D may exercise any or all of its termination rights in this Section 13.3. Additionally, Magnetic 3D may terminate this Agreement, for any reason or no reason, upon thirty (30) days’ advance notice.

13.4 Effect of Termination or Suspension. Upon any termination of this Agreement, you must cease any further use of the Products, Services and Software, except for any access rights granted in Section 13.5. No expiration or termination of this Agreement will affect your obligation to pay all Charges that may have become due before such expiration or termination, including that Magnetic 3D may retain any Charges previously paid by you if this Agreement is terminated, unless prohibited by applicable Law. If your Services are suspended for your failure to comply with this Agreement, you will be liable for all Charges due and owing during the period of suspension. Notwithstanding the foregoing and any rights afforded Magnetic 3D in this Agreement, you may continue to use any tablets, monitor or display products for viewing 3D content however, only for those Products, Services or Software which have been paid for in full at the time of termination unless otherwise specified.

13.5 Deletion and Access to Customer Content After Termination. For thirty (30) calendar days following expiration or termination of this Agreement, Magnetic 3D will provide you access to retrieve your Customer Content, after which time your Customer Content will be deleted according to applicable Law, this Agreement, and our regularly scheduled deletion protocols, policies, and procedures. All access during the period set forth in this Section 13.5 is provided to you subject to and governed by this Agreement.

14.0 MODIFICATIONS TO THIS AGREEMENT

14.1 General Changes. Magnetic 3D may make modifications, deletions, and additions to this Agreement (“Changes”) from time to time in accordance with this Section 14.1. Changes to these Terms of Service will be posted here, and you should regularly check for the most recent version as well as save the most up to date version in your files. When Changes are made, Magnetic 3D will indicate the effective date of the Changes at the top of the Terms of Service. Changes to this Agreement do not create a renewed opportunity to opt out of arbitration (if applicable). If you continue to use the Products, Services or Software after the effective date of the Changes, then you agree to the revised terms and conditions. In some instances, Magnetic 3D may notify you of a Change and also may request express confirmation of your consent to a Change. If a Change requires a specific notice pursuant to applicable Law, Magnetic 3D will provide you with such notice in the manner prescribed by applicable Law, together with any required notification of your rights.

14.2 Other Changes. You agree that Magnetic 3D may modify, delete, and make additions to its guides, statements, policies, and notices, with or without notice to you, and for similar guides, statements, policies, and notices applicable to your use of the Services by posting an updated version on the applicable webpage. In most instances, you may subscribe to these webpages using an authorized email in order to receive certain updates to policies and notices.

14.3 Change Notifications. It is your responsibility to keep your email address up to date for any notices that Magnetic 3D may send to you from time to time and to regularly review this Agreement.

15.0 MAGNETIC 3D PROPRIETARY RIGHTS; FEEDBACK

15.1 Feedback. If you or any of your employees, contractors, agents, or End Users send, transmit, or otherwise provide any feedback, comments, suggestions, questions, or the like, regarding the Products, Services or Software, including any ideas, know-how, concepts, enhancements, recommendations, or other information relating to the Products, Services or Software, including suggesting or recommending changes to the Products, Services or Software such as new features or functionality relating thereto (collectively, “Feedback”), you acknowledge that (i) Magnetic 3D owns, and Magnetic 3D shall retain ownership of, all right, title, and interest in and to such Feedback, including any Proprietary Rights therein, and (ii) Magnetic 3D may, but is not required to use, the Feedback, including any Proprietary Rights therein, for any purpose whatsoever without any attribution, financial compensation, or reimbursement of any kind to you or any third party. You hereby unconditionally and irrevocably assign and agree to assign to Magnetic 3D on your behalf, and you shall cause your employees, contractors, agents, and End Users to unconditionally and irrevocably assign and agree to assign, all right, title, and interest in and to the Feedback, including all Proprietary Rights relating thereto. All Feedback is and will be treated as Magnetic 3D Confidential Information until Magnetic 3D , in its sole discretion, chooses to make any specific Feedback non-confidential.

15.2 Ownership of Magnetic 3D Property. Magnetic 3D , its affiliates, its licensors, and suppliers (as applicable) own and shall retain ownership of (i) all Service Generated Data (as provided in Section 9.2), (ii) all Feedback (as provided in Section 15.1), (iii) the Products, Services and Software, and any underlying or other technology and intellectual property embodied or contained in, used to provide or support, or otherwise associated or provided in connection with, the Services or Software, including all Proprietary Rights related thereto, and (iv) all trade names, trademarks, service marks, trade dress, logos, icons, insignia, symbols, interface and other designs, domain names and corporate names, and the like (whether registered or unregistered) (“Magnetic 3D Marks”) associated or displayed with the Services or Software, together with the goodwill associated with any of the foregoing Magnetic 3D Marks (all of the foregoing, collectively “Magnetic 3D Property”). You may not frame or utilize framing techniques to enclose any Magnetic 3D Marks, or other proprietary materials or information (including images, text, page layout, or form) of Magnetic 3D without our express prior written consent. You may not use any meta tags or any other “hidden text” utilizing Magnetic 3D Marks without our express prior written consent. No rights to use the Magnetic 3D Marks are provided to you herein.

15.3 Reservation of Rights. Magnetic 3D reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any Magnetic 3D Property or other intellectual property provided in connection with this Agreement or the Services or Software.

16.0 CONFIDENTIALITY

16.1 Definition. “Confidential Information” means: (i) with respect to Magnetic 3D , any information disclosed by, for, or on behalf of Magnetic 3D , directly or indirectly, to you or any End User in connection with this Agreement, the Products, Services or Software, or learned or accessed by you or any End User in connection with the Products, Services or Software, including business information, development plans, product roadmap details, systems, strategic plans, source code, services, products, pricing, methods, processes, financial data, programs, trade secrets, know-how, and marketing plans, however it is conveyed in any form or medium, together with all information derived from the foregoing, and any other information that is designated as being confidential (whether or not it is marked as “confidential”) or which is known by you or the End User or reasonably should be understood by you or the End User to be confidential (“Magnetic 3D Confidential Information”); and (ii) with respect to you, any information disclosed by you to Magnetic 3D that (a) must be kept confidential pursuant to applicable Law or (b) is sensitive security and technical information that is clearly and conspicuously marked as “confidential” by you (“Customer Confidential Information”). Customer Content is not Customer Confidential Information; however, Customer Content will be protected in accordance with Section 9.5.

16.2 Exclusions. Confidential Information does not include information that: (i) is already rightfully known to the receiving party at the time it is received, free from any obligation to keep such information confidential; (ii) becomes publicly known or available through no act or omission of the receiving party or any third party; (iii) is rightfully received from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.

16.3 Obligation of Confidentiality. You and Magnetic 3D shall take reasonable steps to maintain the confidentiality of each other’s Confidential Information using measures that are at least as protective as those taken to protect its own information of a similar sensitivity, but in no event using less than a reasonable standard of care. Neither you nor Magnetic 3D will disclose the other party’s Confidential Information to any person or entity except to its employees, advisors, and attorneys who have a strict need to know the information in connection with this Agreement and who are bound by confidentiality obligations at least as protective as the provisions herein. In addition to the foregoing permitted disclosures, Magnetic 3D also may disclose Customer Confidential Information to its consultants, contractors, service providers, subprocessors, and other third parties who are bound by confidentiality obligations at least as protective as the confidentiality provisions herein.

16.4 Permitted and Compelled Disclosures. Notwithstanding the restrictions in this Section 16 and without limiting any other rights of Magnetic 3D , we may disclose Customer Confidential Information received in connection with this Agreement, the Products, Services, or Software to the extent authorized to do so or required by applicable Law; provided, however, that Magnetic 3D will first notify you, unless providing such notice or timely notice is: (i) prohibited by applicable Law; or (ii) determined by Magnetic 3D in its sole discretion to be (a) a risk or potential risk of harm to a person or to the health of a person, (b) a risk or potential risk of damage to property, (c) an emergency, or (d) a threat to the Products, Services, Software, or Magnetic 3D ’s rights or property.

17.0 THIRD PARTY PROPRIETARY RIGHTS

You agree to not, and to not permit any End User to, post, modify, distribute, or reproduce in any way in connection with your or your End Users’ use of the Services or Software any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another’s Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you are either the author of all Customer Input to be provided under this Agreement or have obtained and hold all rights necessary to provide such Customer Input and receive all Customer Content in the form provided by Magnetic 3D , in connection with your or your End Users’ use of the Services or Software. Magnetic 3D may deny access of or to the Products, Services or Software to any End User who is alleged to infringe another person’s Proprietary Rights and may remove any stored Customer Content upon Magnetic 3D ’s receipt of notice by the Proprietary Rights owner (e.g., a takedown request). Without limiting the foregoing, if you believe that any of your Proprietary Rights have been infringed in connection with the Products, Services, or Software you must promptly notify Magnetic 3D by writing to info@magnetic3d.com.

18.0 THIRD-PARTY APPLICATION STORE - TERMS OF USE

By accessing or downloading a Magnetic 3D applications from the any Third-Party Application Store including but not limited to the Apple App Store, Unity Asset Store, Google Play, Unreal Engine, in addition to our Terms of Service you are agreeing to (“Third-Party Terms”) provided by the 3rd Party Application Store. This Agreement governs if there is a conflict any Third-Party Terms.

19.0 MEDICAL DEVICE

You agree that Magnetic 3D’s Products, Services and any Software provided under this Agreement, even if also subject to a separate business associate agreement, does not include, constitute, or otherwise consist of any medical device, product, or service cleared or approved by the U.S. Food and Drug Administration and are not intended for use in the diagnosis of, cure of, mitigation of, treatment of, or prevention of, any diseases, ailments, or conditions.

20.0 THIRD-PARTY INTEGRATIONS AND OFFERINGS

The Products, Services or Software may interoperate, integrate, or be used in connection with third party offerings and services (“Third-Party Offerings”). Magnetic 3D is not responsible for, and Magnetic 3D hereby disclaims any liability for, any act or omission of any provider of Third-Party Offerings or the operation of any Third-Party Offerings, including access to, modification of, or deletion of data, regardless of whether Magnetic 3D or a Service endorses, approves, or supports any such Third-Party Offerings. Magnetic 3D does not guarantee the interoperation, integration, or support of any Third-Party Offerings. Magnetic 3D may, at any time, in its sole discretion, modify the Products, Services or Software, which may result in the failed interoperation, integration, or support of Third-Party Offerings. You have sole discretion whether to purchase or connect to any Third-Party Offerings, and your use of any Third-Party Offering is governed solely by the terms of such Third-Party Offerings.

21.0 EXPORT RESTRICTIONS

You acknowledge that the Products, Services and Software, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and may be subject to other applicable country export control and trade sanctions Laws, including the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and programs maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control and Sanctions Laws”). Magnetic 3D will provide the U.S. export classification(s) applicable to its Products, Services and Software upon request. You and your End Users may not access, use, export, re-export, divert, transfer, or disclose any portion of the Products, Services or Software or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) you and your End Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that you and your End Users will not access or use the Products, Services or Software, or export, re-export, divert, or transfer the Products, Services or Software, in or to such countries or territories; (b) are not persons, or owned or controlled by 50% or more, individually or in the aggregate, by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists or any similar applicable list maintained by a country’s regulatory authority; and (c) are not persons on, affiliates of persons on, the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) you and your End Users located in Belarus, Myanmar (Burma), Cambodia, China, Russia, or Venezuela are not Military End Users and will not put Magnetic 3D Products, Services or Software to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Customer Content created or submitted by you or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) you and your End Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. Any list of countries specifically included in this clause will be deemed to be updated to the extent that any country or territory is added or removed under the Export Control and Sanctions Laws. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.

22.0 NO HIGH RISK USE AND SAFE USE

THE PRODUCTS, SERVICES AND SOFTWARE ARE NOT DESIGNED FOR USE IN HAZARDOUS OR HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, COMBAT OPERATIONS, OR WEAPONS SYSTEMS. YOU SHALL NOT USE THE PRODUCTS, SERVICES AND SOFTWARE FOR OR IN CONNECTION WITH ANY HIGH-RISK ENVIRONMENT. YOU FURTHER AGREE NOT TO USE THE PRODUCTS, SERVICES OR SOFTWARE IN AN UNSAFE MANNER, INCLUDING WHILE DRIVING, WALKING, OR OTHERWISE WITHOUT YOUR FULL ATTENTION WHERE RISK TO YOU, YOUR END USERS, OR OTHERS MAY ARISE OR RESULT. ANY USE OF THE PRODUCTS SERVICES OR SOFTWARE IS AT YOUR OWN RISK.

23.0 NO WARRANTIES

YOU AGREE THAT THE PRODUCTS, SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND MAGNETIC 3D , ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MAGNETIC 3D , ITS AFFILIATES, SUPPLIERS, AND LICENSORS MAKE NO GUARANTEE, PROMISE, WARRANTY, OR REPRESENTATION (i) REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, SERVICES OR SOFTWARE, (ii) REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS, SERVICES OR SOFTWARE, OR (iii) THAT THE PRODUCTS, SERVICES OR SOFTWARE WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS, SERVICES OR SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCTS, SERVICES OR SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS, SERVICES OR SOFTWARE REMAINS WITH YOU. MAGNETIC 3D DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING CUSTOMER CONTENT AND CUSTOMER DATA, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS. USE OF THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK.

24.0 INDEMNIFICATION

To the extent not prohibited by applicable Law, you agree to indemnify, defend, and hold Magnetic 3D and its affiliates and each of our licensors and suppliers (“Indemnified Parties”) harmless, including any officers, directors, employees, shareholders, members, consultants, and agents of the Indemnified Parties, from any third party allegation, claim, proceeding, liability, damage, or cost (including reasonable attorneys’ fees) arising out of or related to (i) your or your End User’s use of the Products, Services or Software, (ii) your or your End User’s breach of this Agreement or violation of applicable Law, (iii) your or your End User’s infringement or violation of any Proprietary Rights or other right of any person or entity, (iv) your relationship with your End User or any dispute between you and your End User, or (v) a personal injury or property damage to a third party relating to your or your End User’s acts or omissions.

25.0 LIMITATION ON LIABILITY

READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO YOU.

MAGNETIC 3D AND ITS AFFILIATES AND EACH OF THEIR LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY:

• SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES;
• LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY;
• UNAUTHORIZED ACCESS TO, LOSS OF, DELETION OF, OR ALTERATION OF SYSTEM DATA, CUSTOMER CONTENT, OR CUSTOMER DATA;
• COSTS RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
• TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE SERVICES;
• A FAILURE OF YOUR INTERNET SERVICES, DOWNTIME, OR MAINTENANCE;
• OUR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES; OR
• DAMAGES, IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEEDING THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.

THESE EXCLUSION OF DAMAGES AND LIMITATIONS ON AVAILABLE DAMAGES APPLY TO ALL CLAIMS, OBLIGATIONS, AND LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF MAGNETIC 3D , ITS AFFILIATES, OR OUR LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY BE INCURRED BY YOU AND EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY, THE ABOVE LIMITATION ONLY APPLIES TO YOU TO THE EXTENT THAT THE EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY ARE NOT PROHIBITED UNDER APPLICABLE LAW.

26.0 DISPUTE RESOLUTION, ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER

You agree to resolve certain disputes with Magnetic 3D through binding arbitration (“Arbitration Agreement”). Arbitration means that an arbitrator, and not a judge or a jury, will decide the dispute. The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. This Arbitration Agreement supersedes all prior versions.

26.1 Covered Disputes. You and Magnetic 3D agree that any dispute or claim between you and Magnetic 3D arising out of or relating to this Agreement or the Services (a “Dispute”), including any related Products, Services, Software, Hardware, integrations, advertising or marketing communications, content, your account, or any aspects of your relationship or transactions with Magnetic 3D , will be resolved by binding arbitration, rather than in court. For purposes of this Arbitration Agreement, a Dispute will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement. LAWSUITS AND ARBITRATIONS HAVE BEEN FILED, OR MAY BE FILED IN THE FUTURE, WHICH COULD AFFECT YOU. YOUR AGREEMENT TO THIS ARBITRATION AGREEMENT COULD AFFECT YOUR PARTICIPATION IN THOSE ACTIONS.

26.2 Exceptions to Arbitration. This Arbitration Agreement shall not require arbitration of the following types of claims brought by either you or Magnetic 3D : (i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.

26.3 Informal Dispute Resolution First. We want to address any Disputes without needing arbitration. If you have a Dispute with Magnetic 3D , prior to initiating arbitration, you agree to mail an individualized request (“Pre-Arbitration Demand”) to ATTN: Litigation Department, Magnetic Media Holdings Inc, 450 Lexington Avenue, 4th Floor, New York, New York 10017 so that we can work together to resolve the Dispute. A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all. The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute; and (iv) your signature. Likewise, if Magnetic 3D has a Dispute with you, Magnetic 3D will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your Magnetic 3D account. If the Dispute is not resolved within sixty (60) calendar days of when either you or Magnetic 3D submitted a Pre-Arbitration Demand, an arbitration can be brought. If you or Magnetic 3D have a Dispute involving claims under the exception to arbitration in Section 26.2(2), then this Section 26.3 does not apply to such Dispute. You agree that compliance with this Section 26.3 is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.

26.4 Arbitration Procedure. If, after completing the informal dispute resolution process set out in Section 26.3, either you or Magnetic 3D wishes to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you shall be sent to the Magnetic 3D’s Litigation Department address in Section 26.3. Magnetic 3D will send any arbitration demand to the email address associated with your Magnetic 3D account or to your counsel, if any. You and Magnetic 3D agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Agreement. If the FAA cannot apply for whatever reason, then the state laws governing arbitration procedures where you reside apply.

The applicable arbitration provider depends on where you live. If you are a California resident, the arbitration shall be administered by ADR Services, Inc. (“ADR Services”) under its Arbitration Rules, available at https://www.adrservices.com/services-2/arbitration-rules. If you are not a California resident, the arbitration shall be administered by National Arbitration and Mediation (“NAM”) under its operative Comprehensive Dispute Resolution Rules and Procedures, available at https://www.namadr.com/resources/rules-fees-forms. This Agreement will govern to the extent it conflicts with the arbitration provider’s rules. If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, then the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a NAM arbitrator shall be appointed to resolve that dispute.

Arbitration hearings will take place through videoconferencing by default, unless you and Magnetic 3D agree upon another location in writing. A single arbitrator will be appointed. The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. An arbitration award shall have no preclusive effect in another arbitration or court proceeding involving Magnetic 3D and a different individual. The arbitrator shall have the exclusive authority to resolve all threshold arbitrability issues, including whether this Agreement is applicable, unconscionable, or enforceable, as well as any defense to arbitration. However, a court has exclusive authority to rule on the Mass Action Waiver in Section 26.6, including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.

If a request to proceed in small claims court (see Section 26.2(1)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration shall be administratively closed. Any controversy over the small claims court’s jurisdiction shall be determined by the small claims court. If you or Magnetic 3D challenges the small claims court election in your Dispute, and a court of competent jurisdiction determines that the small claims court election is unenforceable, then such election shall be severed from this Arbitration Agreement as to your Dispute. However, such court determination shall have no preclusive effect in another arbitration or court proceeding involving Magnetic 3D and a different individual.

26.5 Jury Trial Waiver. You and Magnetic 3D hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and Magnetic 3D are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 26.2 above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.

26.6 Mass Action Waiver. You and Magnetic 3D agree that, except as specified in Section 26.7 below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis, and the parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 26.6 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Magnetic 3D agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the state or federal courts located in San Jose, California. This subsection does not prevent you or Magnetic 3D from participating in a class-wide settlement of claims.

26.7 Bellwether Arbitrations. To increase the efficiency of administration and resolution of arbitrations, you and Magnetic 3D agree that if there are fifty (50) or more individual arbitration demands of a substantially similar nature brought against either party by or with the assistance of the same law firm, group of law firms, or organizations within a one hundred and eighty (180) day period (“Mass Filing”), the parties shall select sixteen (8) individual arbitration demands (four (4) per side) for arbitration to proceed (“Bellwether Arbitrations”). Only those eight (8) arbitration demands shall be filed with the arbitration provider, and the parties shall hold in abeyance, and not file, the non-Bellwether Arbitrations. Magnetic 3D will pay the arbitration provider’s costs for the eight (8) Bellwether Arbitrations. The statutes of limitation, including the requirement to file within one (1) year in Section 26.10 below, shall remain tolled when non-Bellwether arbitration demands are held in abeyance. While the Bellwether Arbitrations are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance.

All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (i) whether the Bellwether Arbitration process is applicable or enforceable, (ii) whether particular demand(s) are part of a Mass Filing, and (iii) whether demands within a Mass Filing were filed in accordance with this Agreement, including Section 26.3. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s costs shall be paid by Magnetic 3D.

The parties shall work in good faith with the arbitrator to complete each Bellwether Arbitration within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Bellwether Arbitration process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings, including the claims of individuals who are not selected for a Bellwether Arbitration.

Following resolution of the Bellwether Arbitrations, the parties agree to engage in a global mediation of all remaining arbitration demands comprising the Mass Filing (“Global Mediation”). The Global Mediation shall be administered by the arbitration provider administering the Bellwether Arbitrations. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within thirty (30) calendar days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall be filed and administered by the arbitration provider on an individual basis pursuant to the arbitration provider’s rules, unless the parties mutually agree otherwise in writing. Any party may request that the arbitration provider appoint an Administrative Arbitrator to determine threshold questions regarding the newly filed demands.

The parties agree to cooperate in good faith with the arbitration provider to implement the Bellwether Arbitration process, including the payment of filing and administrative costs for the Bellwether Arbitrations, deferring any filing costs associated with the non-Bellwether Arbitration Mass Filings until the Bellwether Arbitrations and subsequent Global Mediation have concluded, and cooperate on any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Bellwether Arbitration provision shall in no way be interpreted as authorizing a class, collective, or mass action of any kind, or an arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision. The statutes of limitation applicable to each arbitration demand within a Mass Filing, including the requirement to file within one (1) year in Section 26.10 below, shall remain tolled from the time a party makes a Pre-Arbitration Demand to the time when that party files the arbitration demand with the arbitration provider.

26.8 Settlement Offers and Offers of Judgment. At least ten (10) calendar days before the date set for the arbitration hearing, you or Magnetic 3D may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs from the time of the offer (which, solely for purposes of offers of judgment, may include reasonable attorneys’ fees to the extent they are recoverable by statute, in an amount not to exceed the damages awarded).

The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual settlement offer(s) or offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.

26.9 Arbitration Costs. Except as provided for in a Mass Filing (see Section 27.7), your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules. If you have a gross monthly income of less than 300% of the federal poverty guidelines, you may be entitled to a waiver of certain arbitration costs.

26.10 Requirement to File Within One Year. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this Agreement (with the exception of disputes under Section 27.2(2)) must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines shall be tolled while the parties engage in the informal dispute resolution process required by Section 26.3 above.

26.11 Opt-Out. You may reject this Arbitration Agreement and opt out of arbitration by sending an email to info@magnetic3d.com within (i) thirty (30) calendar days of May 1st, 2023 if you are an existing user, or (ii) thirty (30) calendar days of the date you created your account if you are a new user. Your opt-out notice must be individualized and must be sent from the email address associated with your individual Magnetic 3D account. An opt-out notice that purports to opt out multiple parties will be invalid as to all such parties. No individual (or their agent or representative) may effectuate an opt out on behalf of other individuals. Your notice to opt-out must include your first and last name, address, the email address associated with your Magnetic 3D account, and an unequivocal statement that you decline this Arbitration Agreement. If you do decide to opt out, that opt out will apply to this Arbitration Agreement and all previous versions thereof, and neither party will have the right to compel the other to arbitrate any Dispute. However, all other parts of this Arbitration Agreement will continue to apply to you, and opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may enter into in the future with us.

26.12 Severability. Except as provided in Section 26.6 above, if any provision of this Arbitration Agreement is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to achieve the closest possible intent to the original intent of this section, inclusive of the severed provision.

27.0 ANONYMIZED AND AGGREGATED DATA

You agree that Magnetic 3D may obtain and aggregate technical and other data about your and your End Users use of the Products, Services and Software on a de-identified or anonymized basis (“Aggregated Anonymous Data”), and Magnetic 3D may use the Aggregated Anonymous Data in accordance with applicable Law, including to analyze, develop, improve, support, and operate the Products, Services and Software provided to you or other unrelated customers, during and after the term of this Agreement, including to generate industry benchmarks or best practices guidance, recommendations, or similar reports.

28.0 U.S. FEDERAL GOVERNMENT AND OTHER GOVERNMENT USERS

This Section 28 applies if you are a governmental or public entity, including the U.S. federal government or any agency or instrument of any federal, state, or local governmental entity. The Software is “commercial computer software” and the Services are “commercial services,” as defined at 48 C.F.R. § 2.101, and constitute “commercial computer software,” as defined in 48 C.F.R. § 252.227-7014(a)(1) and as used in 48 C.F.R. §§ 12.212 and 227.7202. This commercial computer software and related Documentation is provided to you and your End Users for use, by you and on your behalf, with only those rights as are granted to all other end users pursuant to the terms and conditions herein. This Agreement, including (by way of example only) Sections 11.3 Changes to Pricing; 11.7 Termination or Suspension for Nonpayment; 13 Term, Termination and Suspension; 14 Modifications to this Agreement; 24 Indemnification; 26 Dispute Resolution, Arbitration Agreement, and Class Action Waiver; 31.3 Governing Law; Jurisdiction and Venue, apply to you except to the limited extent you are prohibited by applicable Laws of your jurisdiction from accepting such terms. If and to the extent any provision of this Agreement is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable Law, but to give maximum effect to this Agreement and the applicable terms as written.

29.0 PRIVACY STATEMENT

29.1 Privacy Statement. You consent to and agree to our Privacy Statement, and you are on notice of and acknowledge that our collection, sharing, and processing (which may include organizing, structuring, storing, using, or disclosing) of your personal data will be subject to our Privacy Statement.

30.0 MARKETING

You grant Magnetic 3D permission and the right to (i) identify you as a customer and to use your logo across Magnetic 3D marketing materials (e.g., the Magnetic 3D Website, emails, presentations, brochures, social media, etc.) and (ii) develop content around your experience as a Magnetic 3D customer (e.g., a written case study or video case study). Any content created under the foregoing clause (ii) of this Section 30 will be created in cooperation with you and used only upon your approval. Magnetic 3D will use any trademarks provided by you pursuant to clause (i) of this Section 30 in accordance with any reasonable brand guidelines that you provide to us in writing prior to our use.

31.0 MISCELLANEOUS

31.1 Assignment; Successors and Assigns. You may not assign your rights or transfer any of your obligations under this Agreement without our prior express written consent. Any purported assignment or transfer in violation of this section is null and void. We may assign our rights or transfer any or all of our obligations under this Agreement at any time, without prior notice to you, (i) in the event of a merger, acquisition, or sale of all or substantially all of our assets, or (ii) to our affiliate. This Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.

31.2 Governing Law; Jurisdiction; and Venue. The laws of the New York, U.S.A., regardless of conflict of laws principles, govern all matters arising out of or relating to this Agreement, including its interpretation, construction, performance, and enforcement, except that the Federal Arbitration Act governs provisions relating to arbitration. Except as otherwise provided in Section 26, the parties consent to the exclusive jurisdiction and venue of the state courts located in and serving New York City and the federal courts in the Southern District of New York. Notwithstanding the above, you and Magnetic 3D agree that this paragraph does not preclude either you or us from initiating any proceedings (including nullity proceedings) before the United States Patent Trial and Appeal Board (PTAB), United States Trademark Trial and Appeal Boards (TTAB), the United States Patent and Trademark Office (PTO), the United States Copyright Office, or any foreign patent, trademark, or copyright office, as long as any such proceeding relates to the validity, enforceability, or unenforceability of any copyright, patent, trademark, or other intellectual property right owned or assigned to either you or Magnetic 3D . If you are acting as a consumer under this Agreement and are domiciled in a Member State of the European Union or the European Economic Area, or in the United Kingdom, the foregoing choice of governing law will not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the Laws applicable to you where you habitually reside.

31.3 Language and Translations. All notices and communications under this Agreement must be provided in the English language. If we provide a translation of the English-language version of this Agreement, then the English-language version of this Agreement controls in the event of conflict or inconsistency.

31.4 Merger; Integration. This Agreement constitutes and embodies the final agreement between you and Magnetic 3D and contains the complete and exclusive expression of your and our agreement pertaining to its subject matter. All prior or contemporaneous writings, negotiations, and discussions between you and Magnetic 3D regarding the subject matter hereof are expressly merged into and superseded by this Agreement. We expressly object to and do not agree to any terms and conditions presented by you that are in addition to or different from those contained in this Agreement or an Order Form or Proposal. You acknowledge that no terms and conditions presented by you that purport to add to, modify, or vary the terms and conditions of this Agreement or an Order Form or Proposal will be binding on us, including (i) text or information set forth on any purchase order, email correspondence, invoice or invoice process, or preprinted form, or (ii) terms and conditions of any request for proposal, request for bid, request for information, or questionnaire. In entering into this Agreement, neither you nor Magnetic 3D has relied upon any statement, representation, warranty, or agreement of the other party except to the extent expressly contained in this Agreement.

31.5 No Agency Relationship. Magnetic 3D and you are independent contractors and do not intend to create an express or implied agency relationship by entering into this Agreement, whether arising under federal or state common law of agency.

31.6 No Third-Party Rights or Remedies. This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person other than Magnetic 3D and you.

31.7 Notice. We may give notice to you by (i) electronic mail to your email address on record in your account information, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and property address on record are current. You agree that any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by Magnetic 3D ) by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail to Magnetic 3D at “Attention Legal Dept., Magnetic Media Holdings Inc, 450 Lexington Avenue 4th Floor, New York, New York 10017, USA.”

31.8 Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way. You and Magnetic 3D intend that any invalid, illegal, or unenforceable portions of this Agreement will be interpreted to provide the greatest effect and intent of the original. If a construction of the invalid, illegal, or unenforceable portion is not possible, the invalid, illegal, or unenforceable portion will be severed from this Agreement and the rest of this Agreement will remain in full force and effect.

31.9 Survival. All sections of this Agreement which, by their nature should survive termination or expiration, will survive, including sections pertaining to confidential information, Magnetic 3D ’s Proprietary Rights, license rights granted by you to Magnetic 3D , payment obligations, warranty disclaimers, indemnification, arbitration, and the limitation on liability.

31.10 Waiver. Magnetic 3D ’s failure to exercise any right or enforce any condition or provision under this Agreement does not operate as a current or future waiver. For any waiver to be effective against us, the waiver must be in a writing signed by Magnetic 3D ’s duly authorized representative.

31.11 Interpretation. Any heading, caption, or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural and vice versa, where appropriate and unless otherwise specified. Any use of the term “e.g.” or “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”

32.0 DEFINITIONS

The following definitions apply to this Agreement.

“Customer Data” means information provided to Magnetic 3D so that Magnetic 3D can fulfill the terms of this Agreement and provide access to the Products, Services or Software (e.g., company name, billing address, taxpayer ID number, VAT registration number, contact name and information).

“End User” means the Customer or Client who is using the Products, Services or Software.

“Initial Subscription Term” means the initial subscription term for a Product, Service or Software as specified in an Order Form or Proposal.

“Law” means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to Magnetic 3D ’s provision of and your use of the Products, Services or Software.

“Proprietary Rights” means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.

“Renewal Term” means the renewal subscription term for a Product, Service or Software commencing after the Initial Subscription Term or another Renewal Term as specified in an Order Form or Proposal.

“Services” means (i) any services made available to you as set forth in an Order Form or Proposal that references this Agreement, (ii) any free services provided by Magnetic 3D to you, in its sole discretion, in connection with this Agreement, (iii) any support services provided by Magnetic 3D to you in accordance with our then-current Documentation, an Order Form or Proposal that references this Agreement, or both, and (iv) the Magnetic 3D Website, including any access to or use of the Magnetic 3D’s Web or Mobile Downloads or Applications.

“Taxes and Fees” means all applicable sales, use, environmental or regulatory taxes (including VAT), fees, tariffs, duties (including customs duties), or other charges, surcharges or assessments of similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the foregoing) levied on or otherwise associated with the provision of the Services to you or your use thereof (exclusive of any income tax imposed on Magnetic 3D ).

“VAT” means any value added tax, and any other tax of a similar nature, whether imposed in a Member State of the European Union in substitution for, or levied in addition to, such tax, or imposed elsewhere, any Goods and Services Tax, PIS/COFINS, any similar indirect Tax or any Tax analogous thereto imposed in connection with, or otherwise relating to, the Products, Services or Software rendered by Magnetic 3D to you.

“Magnetic 3D Web or Mobile Downloads or Application” means Magnetic 3D ’s website which make act as a portal for downloading our Software, purchasing Products, Services, Content, or accessing Magnetic 3D’s or Third-Party Applications available through the Magnetic 3D Website that allows you and End Users to create, view or modify content for Magnetic 3D products including but not limited to any required software drivers or accessories.

“Magnetic 3D Website” means Magnetic 3D ’s website located at https://www.magnetic3d.com/ or such other website as Magnetic 3D may maintain from time to time.