BY CREATING A MATERIALIZE CLOUD ACCOUNT, YOU (“YOU” OR “YOUR”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MATERIALIZE, INC. (“MATERIALIZE,” “WE,” “US,” OR “OUR”) MATERIALIZE CLOUD TERMS AND CONDITIONS (THE “TERMS”). YOUR AND YOUR COMPANY’S (COLLECTIVELY, “CUSTOMER”) CONTINUED USE OF THE SERVICES (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THESE TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THESE TERMS, DO NOT USE MATERIALIZE CLOUD. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE AND/OR ENTER INTO THIS AGREEMENT AND BIND YOURSELF OR THE ENTITY YOU REPRESENT (AS APPLICABLE) TO THESE TERMS.
TERMS AND CONDITIONS
“Acceptable Use Policy” means, if you opt to utilize Materialize Cloud, the usage rules and restrictions set forth at https://aws.amazon.com/aup/.
“Affiliates” means (a) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (b) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (c) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
“Authorized Users” means designated employees and contractors of Customer.
“Authorized User Data” means all PII collected or derived by Materialize from an Authorized User’s use of the Platform and that has not been provided to Materialize by Customer and Usage Data. Authorized User Data may include unique identifiers assigned to individual users that collect and analyze information regarding such user’s activity within the Services.
“Customer Data” means all data, information and other materials that are either (a) submitted by Customer to the Platform or collected by Materialize from Customer or (b) provided by Customer to Materialize specifically for use by Materialize in the course of the Services. Customer Data includes without limitation any PII included therein. Customer Data does not include Authorized User Data, but does include any aggregated or anonymized data derived from Authorized User Data.
“Documentation” means any user guide, help information and other documentation and information regarding the Services that is delivered by Materialize to Customer or an Authorized User in electronic or other form, if any, including any updates provided by Materialize from time to time.
“Personally Identifiable Information” or “PII” means any and all data or information relating to an identifiable individual who is or can be identified either from such data or information or in conjunction with other data or information.
“Platform” means the services or products hosted by or on behalf of Materialize for the benefit of Customer, as set forth in an Order Form.
“Services” means use of Materialize’s Platform, access to the Software, the professional services as further set forth in an applicable Order Form and any other products or services provided by or on behalf of Materialize under this Agreement from time to time.
“Software” means the Materialize software to which access is provided via the Services, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise made generally available by Materialize in connection with the Services to Customer. Use of the Software is governed by the Materialize Business Source License Agreement located at https://github.com/MaterializeInc/materialize/blob/main/LICENSE (“Business Source License”).
“Usage Data” means tracking data regarding your use of the Services or specific Services functionality (e.g., tracking user engagement with a particular feature). For the avoidance of doubt, Usage Data does not include any Customer Data.
2. MATERIALIZE SERVICES.
2.1 Order Forms. This Agreement will be implemented through one or more Order Forms. Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein. Customer may enter into Order Forms on behalf of its Affiliates, provided that Customer shall remain responsible for all obligations under such Order Forms.
2.2 Services. Subject to all terms and conditions of this Agreement, Materialize will use commercially reasonable efforts to provide the Services described in an applicable Order Form. Materialize grants Customer and each Authorized User a non-exclusive, non-transferable, non-sublicensable right and license to use and access the Platform solely for Customer’s internal business purposes in accordance with the Documentation for the applicable term of the Order Form.
2.3 Access and Account Setup. Materialize will provide Customer with access privileges that permit Customer to access and manage its Platform account (“Customer Account”) and access, analyze and download Customer Data. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s (including an Authorized User’s) user account or registration information for Materialize’s Services without permission. Customer must notify Materialize immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account. Customer will cooperate with Materialize in establishing a password or other procedures for verifying that only Authorized Users have access to the Services. Customer shall be responsible for the acts or omissions of any person (including any Authorized User) who accesses the Platform using passwords or access procedures provided or created by Customer.
2.4 Third Party Services. Customer acknowledges and agrees that Materialize may use third-party vendors, hosting partners, application programming interfaces (APIs) and/or other services and software operated or provided by third parties (“Third Party Services”) to provide the necessary hardware, software, networking, storage and related technology required to provide the Platform and/or Services. Materialize is not and will not be liable or responsible for the operation of any Third Party Services nor the availability or operation of the Platform and/or Services to the extent such availability and operation is dependent upon Third Party Services. For Third Party Services required to be procured by Customer, Customer is solely responsible for obtaining any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Materialize does not make any representations or warranties with respect to Third Party Services and is not responsible or liable for any acts or omissions of any such third party providers.
2.5 Modifications. Materialize reserves the right to modify or discontinue the Platform (in whole or in part) or Software at any time by giving thirty (30) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Platform or Software in accordance with this Agreement, Customer may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Materialize and receive a pro-rated refund of any pre-paid subscription fees. If Materialize provides Customer with any upgrades, patches, enhancements or fixes for Materialize’s Services, then the items that are provided will become part of Materialize’s Services and subject to this Agreement. However, Materialize shall have no obligation under this Agreement to provide any upgrades, patches, enhancements, or fixes to Customer for Materialize’s Services.
2.6 Feedback. All Customer or Authorized User (a) suggestions for correction, change or modification to the Platform, (b) evaluations, (c) benchmark tests, and (d) other feedback, information and reports provided to Materialize hereunder (collectively, “Feedback”), will be the property of Materialize and Customer shall and hereby does assign (and shall cause any Authorized User to assign) any rights in such Feedback to Materialize.
2.7 Cooperation. Customer acknowledges that the Services may require the reasonable cooperation of Customer personnel (including Authorized Users), as may be requested by Materialize from time to time. Without limiting the foregoing, where agreement, approval, acceptance, consent or similar action by Customer or an Authorized User is required by any provision of this Agreement, such action shall not be unreasonably delayed, conditioned or withheld, and Customer acknowledges that any delay or failure on the part of Customer or any Authorized User to provide the same will relieve Materialize of its obligations under any Order Form for the pendency of such delay or failure.
2.8 Security. Materialize implements and maintains appropriate security measures designed to protect Customer Data and Authorized User Data from unauthorized access and use. Customer can learn more about Materialize’s security practices and policies here: https://materialize.com/security-overview/.
3. PROPRIETARY RIGHTS.
3.1 Customer Data and Authorized User Data. Customer hereby grants (and shall cause each Authorized User to grant) to Materialize a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data and Authorized User Data for the purpose of providing the Services to Customer. Except for the limited rights and licenses expressly granted to Materialize under this Agreement, no other license is granted, no other use is permitted and Customer shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data.
3.2 Aggregate Data. Customer agrees that Materialize is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder (“General Knowledge”), including that it could have acquired performing the same or similar services for another customer. Customer further agrees that Materialize shall have (and shall cause each Authorized User to grant to Materialize) a perpetual, worldwide, non-exclusive, irrevocable right and license to use, store, copy, create derivatives, and archive Customer Data and Authorized User Data to create (a) to create anonymized compilations and analyses of Customer Data and Authorized User Data that is combined with data from numerous other Customers (“Aggregate Data”), (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”) and (c) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Platform using anonymous Customer Data and Authorized User Data. Materialize shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to product improvement and marketing to other customers of the Services; provided, however, that Materialize shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Customer Data or Authorized User Data.
3.3 Limited License. Except for the limited rights and licenses expressly granted to Customer and each Authorized User hereunder and under the Business Source License, no other license is granted, no other use is permitted and Materialize (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services, including all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Materialize in providing the Services, and all Materialize trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors and Authorized Users) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Customer Data and Authorized User Data (as applicable), which shall be deemed to be the Confidential Information (defined below) of Customer and Authorized User Data (as applicable).
3.4 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Materialize’s Confidential Information to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (g) permit any third party (including any Authorized User) to engage in any of the foregoing proscribed acts. Customer must use the Services in compliance with all applicable Acceptable Use Policies, laws and all Services- or feature-specific rules that Materialize may specify.
3.5 Data Processing Addendum. To the extent that, in connection with the Platform or Services, Customer provides any Customer Data or Authorized User Data that contains “Personal Data” from a European “Data Subject” that is subject to the European Union’s General Data Protection Regulation, Materialize’s data processing addendum (“DPA”) available at https://materialize.com/data-processing-addendum/ will apply. Any terms not defined in this Section 3.5 will have the meanings given to them in the DPA.
3.6 California Consumer Privacy Act. The parties acknowledge and agree that Materialize is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from Customer pursuant to this Agreement for a business purpose. Materialize will not sell any such personal information. Materialize will not retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of providing access to the Platform and performing the Services for Customer pursuant to this Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Materialize certifies that it understands the restrictions of this Section 3.6.
4.1 Confidentiality Obligations. During the term of this Agreement, from time to time, either party may disclose (the “Disclosing Party”) or make available to the other party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with this Agreement (together, “Confidential Information”). Confidential Information of each party includes, without limitation, business plans, customer relationships, acquisition plans, systems architecture, information systems, computer programs and codes, processes, methods, operational procedures, finances, budgets, policies and procedures, product plans, projections, analyses, plans or results, the existence of any business dealings or agreements between Customer and Materialize, and any other information which is normally and reasonably considered confidential. Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party.
4.2 Confidentiality Exclusions. For purposes hereof, Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (a) was previously known by the Receiving Party; (b) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (c) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (d) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
4.3 Required Disclosures. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.
5.1 Fees and Payment Terms. Customer agrees to pay Materialize all fees and expenses in the amounts and at the times specified in the applicable Order Form (the “Fees”). Except as otherwise set forth in an Order Form, all amounts due hereunder will be paid within thirty (30) days after Customer’s receipt of invoice in U.S. dollars.
5.2 Late Payment. Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower). For payments that are more than ten (10) days late, without limiting Materialize’s other rights and remedies, Materialize may suspend Customer’s access to the Services until payment in full has been made.
5.3 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on Materialize’s net income. If Materialize is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Materialize with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. WARRANTIES AND DISCLAIMERS.
6.1 General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
6.2 Customer. Customer represents and warrants to Materialize that (a) Customer owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data and Authorized User Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement; and (b) the provision of any Customer Data or Authorized User Data hereunder, and Materialize’s use of the Customer Data and Authorized User Data as authorized in this Agreement, does not and will not violate any applicable laws, rules or regulations.
6.3 Materialize. Materialize warrants that the Services will operate materially in accordance with the Documentation during the term of the applicable Order Form. In the event that the Services fail to satisfy this warranty, Materialize will, at its own expense, as Customer’s sole and exclusive remedy, either: (a) promptly replace the Services with a solution that materially conforms to the Documentation; or (b) promptly repair the Services so that they materially conform to the Documentation.
6.4 Disclaimers. EXCEPT AS SET FORTH IN THE BUSINESS SOURCE LICENSE, MATERIALIZE DOES NOT WARRANT THAT THE PLATFORM, SERVICES OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, MATERIALIZE HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM, SERVICES AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1 Customer. Customer agrees to indemnify, defend and hold Materialize harmless against any claim by an unaffiliated third party that is related to (a) Materialize’s authorized use of any Customer Data or Authorized User Data, (b) Customer’s breach of any representation, warranty, covenant or other agreement made herein, (c) any claim based upon (i) any use of the Platform and Services not strictly in accordance with this Agreement or in an application or environment for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements not created by or for Materialize, (iii) any portion of the Services that implements Customer’s requirements, (iv) Customer’s or any Authorized User’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (v) any intellectual property right in which Customer, any of its Affiliates or any Authorized User has an interest, or (d) Customer’s violation of any applicable law or third party rights.
7.2 Procedures. Any claim for indemnification hereunder is contingent upon Materialize providing: (a) prompt written notice of the liability; (b) reasonable cooperation, information and assistance in connection therewith; and (c) Customer with the sole control and authority to defend, settle or compromise such liability, provided that Materialize may participate in such defense at its sole cost. Customer will not make any settlement that requires a materially adverse act or admission by Materialize without Materialize’s written consent. Customer will not be liable for any settlement made without its prior written consent.
8. LIMITATION OF LIABILITY.
8.1 LIMITATIONS. IN NO EVENT SHALL MATERIALIZE BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO MATERIALIZE HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF MATERIALIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. TERM AND TERMINATION.
9.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for one (1) year from the Effective Date, which term shall automatically renew for successive terms of one (1) year each, unless Customer notifies Materialize of its intent not to renew this Agreement at least sixty (60) days prior to the end of the applicable term.
9.2 Termination for Breach. Without limiting any termination rights set forth in an Order Form, either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.
9.3 Termination for Cause. Without limiting any termination rights set forth in an Order Form, Materialize may terminate this Agreement upon written notice to Customer (a) in the event of Customer’s unauthorized use of the Services or Software (including breach of the Business Source License) or (b) if Customer fails to make timely payment to Materialize, or (c) if Customer violates Section 4.
9.4 Effects of Termination. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) Customer shall cease using the Services (if Customer or an Authorized User continues to use the Services, then Materialize reserves the right to continue to charge Customer); (c) upon Customer’s request, Materialize shall return all Customer Data in a format mutually agreed by the parties to the extent it is technically feasible for Materialize to do so and delete all Authorized User Data (provided that Materialize may retain any Aggregate Data in its possession or control); and (d) the provisions of Sections 2.6 (Feedback), 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6.4 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.4 shall survive.
9.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Materialize may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform and Services if Materialize reasonably determines that (a) Customer’s or any Authorized User’s use disrupts or poses a security risk to Materialize’s intellectual property rights or any other customer or Authorized User’s use of the Platform or Services, (b) Customer or any Authorized User is/are using the Platform or Services for fraudulent or illegal activities or (c) Materialize’s provision of the Platform and Services to Customer or any Authorized User is prohibited by applicable law (each, a “Service Suspension”). Materialize will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
10. GENERAL PROVISIONS.
10.1 Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. This Agreement supersedes any vendor forms, order forms, invoices, policies, or other terms and conditions provided by Customer. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/electronic signature shall be deemed an original and valid signature. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Unless waived by Materialize in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York having jurisdiction over Materialize’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
10.4 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, pandemic, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.
10.6 Publicity. Customer hereby grants Materialize a limited, non-transferable (except to the extent this Agreement is transferred by Materialize in accordance with Section 10.7), non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing Materialize’s services, both on Materialize’s public-facing website and in marketing and promotional materials. Upon request, Customer agrees to participate in a joint and mutually agreed upon press release. Customer agrees to (a) serve as reference customer for prospective customers, investors, media or analysts of Materialize and make appropriate representatives available via telephone for such purposes and (b) make an appropriate representative available for a mutually agreed upon written customer case study and video testimonial that may be published and used as Materialize marketing collateral.
10.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld, conditioned or delayed. However, without consent, Materialize may assign this Agreement to (a) an Affiliate or (b) any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
10.8 Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and Materialize. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.
10.9 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.