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DigitalTwin-Factory's Terms of Use

digitaltwin-factory

TERMS OF USE

Rev. April 2024

You (or your employer, if you are authorized to act on behalf of your employer), the “Subscriber”, have subscribed to become a member of the digitaltwin-factory - an open-source program for digital twin software building blocks that are developed and used solely on the Twinit® platform. The digitaltwin-factory houses open-source software developed and contributed to it by or for Invicara Solutions Limited (“Invicara”) and by or for digitaltwin-factory members, for use on Twinit, and this open-source software is available to digitaltwin-factory members that are licensed users of Twinit for use on Twinit. Membership in the digitaltwin-factory includes access to and use of Twinit.dev, a portal for developer documentation of Twinit, as well as access to and use of the Twinit Academy, a learning resource for Twinit users, and any other additional offerings (“DTF Offerings”) that Invicara may choose to make available to members from time to time.

  1. DEFINITIONS

1.1 “Subscribed Services” means the provision by Invicara to Subscriber of access to and use of the digitaltwin-factory, Twinit.dev, Twinit Academy, and DTF Offerings.

1.2 “Authorized User” means an individual who is an employee of Subscriber and is authorized by Subscriber to use the Subscribed Services and to whom Subscriber (or Invicara at Subscriber’s request) has supplied a user identification and password.

1.3 “Malicious Code” means any code, program routine, device or other undisclosed feature, including but not limited to, viruses, worms, and Trojan horses, that is designed to permit unauthorized access to, or deletion, disabling, or deactivation of, to interfere with, or to otherwise harm the Subscribed Services or the hardware, software, or network systems of Invicara or its affiliates or of any third party.

1.4 “Licensed OSC Software” means any and all open-source software developed by or for Invicara, or by or for any other member of digitaltwin-factory, that have been contributed to the digitaltwin-factory and that are licensed to Subscriber as a member of digitaltwin-factory.

1.5 “Contributed OSC Software” also referred to as “Contributions” means any and all open-source software developed by or for Subscriber that are contributed hereunder by Subscriber to the digitaltwin-factory. Contributed OSC Software are subject to review before they are included in the digitaltwin-factory.

1.6 “Platform Agreement” means a Co-creation Agreement, or a Twinit PaaS Agreement, or a Twinit PaaP Agreement to which Subscriber and Twinit Limited are parties and which is and remains in full force and effect.

Terms not specifically defined in this Section 1 shall have the meanings ascribed to them elsewhere in these Terms of Use.

  1. USE OF SUBSCRIBED SERVICES AND LICENSEE’S CONTENT

2.1 Subscriptions. Subscribed Services are licensed as subscriptions. Subscriber hereby subscribes to the Subscribed Services.

2.2 Subscriber’s Responsibilities. Subscriber shall, and shall cause its Authorized Users, to use the Subscribed Services only as expressly permitted under these Terms of Use. Without limiting the generality of the foregoing, Subscriber shall not

(a) Make the Subscribed Services available to anyone other than Licensee or Licensee’s Authorized Users,

(b) Use the Subscribed Services for the benefit of anyone other than Subscriber,

(c) Use the Subscribed Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy rights or intellectual property rights,

(d) Use the Subscribed Services to store or transmit Malicious Code,

(e) Interfere with or disrupt the integrity or performance of the Subscribed Services and any data contained therein,

(f) Attempt to gain unauthorized access to the systems or networks of Invicara or its licensors or affiliates,

(g) Copy the Subscribed Services or any part, feature, function or user interface thereof, or modify, translate, or make derivative works of any of them, except as expressly permitted under Section 3 below,

(h) Copy, modify, translate, or make derivative works of any content, code or information contained in Twinit.dev, Twinit Academy, or DTF Offerings, or use this content, code or information other than in connection with its licensed use of the Subscribed Services,

(i) Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code to the Subscribed Services, in whole or in part,

(j) Remove any proprietary notices from the digitaltwin-factory, Twinit.dev, the Twinit Academy, the DTF Offerings, or any content, code or information therein,

(k) Use the Subscribed Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law,

(l) Use the Subscribed Services in order to develop an application or service that competes with the functionality of Twinit or any service for which Subscriber has subscribed under these Terms of Use or a Platform Agreement (a “Competitive Application or Service”), or to replicate or attempt to replace the user experience of the Subscribed Services, Twinit, or any service for which Subscriber has subscribed under these Terms of Use or a Platform Agreement,

(m) Do or attempt any act or thing that directly or indirectly circumvents any contractual, legal or technical restrictions on Subscriber’s use of the Subscribed Services, or

(n) Use the Subscribed Services for any purpose other than to develop Contributed OSC Software or to license Licensed OSC Software. The Subscriber explicitly acknowledges that a Platform Agreement must be obtained for use of the Twinit environment (whether production or nonproduction) to develop, test, stage, deploy and/or manage applications or services that are made commercially available for use by a Subscriber customer.

Subscriber is responsible for the acts and omissions of its Authorized Users.

2.3 Usage Restrictions. An Authorized User’s profile and password may not be shared with any other individual but may be reassigned to an individual that Subscriber has designated to replace that Authorized User. Subscriber will ensure that no unauthorized persons have access to the Subscribed Services, Contributed OSC Software, or Licensed OSC Software.

2.4 Removal of Contributed OSC Software. If Invicara is requested or required by a third party to remove one or more Contributed OSC Software, Invicara may so notify Subscriber and may elect to remove such Contributed OSC App from the Subscribed Services, without liability to Subscriber.

  1. PROPRIETARY RIGHTS AND LICENSES; CONFIDENTIALITY

3.1 Access and Use License. Subject to these Terms of Use, Invicara hereby grants to Subscriber a fully-paid, royalty-free, worldwide, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Subscribed Services.

3.2 Contribution License. Subscriber hereby grants to Invicara and all members of digitaltwin-factory a fully-paid, royalty-free, worldwide, non-exclusive, non-transferable, non-sublicenseable, irrevocable license to the Contributed OSC Software (Contributions) pursuant to the Contribution License Agreement found at https://invicara.com/digitaltwin-factory/contribution-license-agreement and incorporated herein by reference.

3.3 Participation License.

(a) Subscriber’s access and use of the Licensed OSC Software (“Participation License”) are governed by the terms of the Apache 2.0 License, the terms of which are found at https://www.apache.org/licenses/LICENSE-2.0 and are incorporated herein by reference.

(b) Subscriber acknowledges and agrees that its Contributed OSC Software will be licensed to other members of digitaltwin-factory pursuant to the terms of the Apache 2.0 License, and Subscriber assents thereto.

3.4 Compliance. Invicara reserves the right to monitor Subscriber’s use of the Subscribed Services to assure compliance with these Terms of Use.

3.5 Reservation. LICENSOR AND ITS LICENSORS RESERVE ALL RIGHTS AND LICENSES NOT EXPRESSLY GRANTED HEREUNDER.

3.6 Ownership. The Subscribed Services and all intellectual property rights therein and thereto, as well as the content, code, and other information found within Twinit.dev, the Twinit Academy, and the DTF Offerings, are and will remain at all times the sole and exclusive property of Invicara and its licensors and affiliates.

3.7 Confidentiality. The content, code, and other information found within Twinit.dev, the Twinit Academy, and the DTF Offerings are the confidential information of Invicara and its licensors and affiliates (“Confidential Information”). Subscriber shall not use any Confidential Information for any purpose outside the scope of this Agreement and shall limit access to Confidential Information to its Authorized Users who have signed confidentiality agreements with Subscriber containing protections no less stringent than those herein.

3.8 Equitable Relief. Subscriber acknowledges and agrees that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and, therefore, that upon any such breach or threat thereof, Invicara will be entitled to seek injunctive relief and other appropriate equitable relief in addition to whatever remedies it may have at law without the requirement of posting any bond or other security.

  1. REPRESENTATIONS AND WARRANTIES

4.1 Subscriber’s Warranties. Subscriber represents and warrants that (a) it is not developing or operating, and will not develop or operate, directly or indirectly, a Competitive Application or Service, (b) its use of the Subscribed Services will not introduce Malicious Code into Invicara’s systems, and (c) it has the sole and exclusive right to use, disclose, license, and transfer Contributed OSC Software.

4.2 Disclaimers. INVICARA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBSCRIBED SERVICES, AND INVICARA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE CONTRIBUTED OSC SOFTWARE AND THE LICENSED OSC SOFTWARE, AND ANY AND ALL CONTENT, CODE AND INFORMATION CONTAINED IN TWINIT.DEV, THE TWINIT ACADEMY AND THE DTF OFFERINGS ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. INVICARA FURTHER DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGE CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS OR BY THE FLOW OF DATA TO OR FROM THE SUBSCRIBED SERVICES AND OTHER PORTIONS OF THE INTERNET, OVER WHICH INVICARA HAS NO CONTROL.

  1. LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY LAW, THE AGGREGATE LIABILITY OF INVICARA AND ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SUBSCRIBED SERVICES, ANY AND ALL LICENSED OR CONTRIBUTED OSC SOFTWARE AND ANY AND ALL CONTENT, CODE AND INFORMATION CONTAINED IN TWINIT.DEV, THE TWINIT ACADEMY AND THE DTF OFFERINGS, OR THESE TERMS OF USE SHALL NOT EXCEED ONE HUNDRED DOLLARS (US$100). THE PARTIES AGREE THAT THIS LIMITATION IS REASONABLE IN LIGHT OF THE COMMERCIAL VALUE OF THESE TERMS OF USE.
  2. SUBSCRIPTION TERM AND TERMINATION

6.1 Term and Subscriptions. Subscriber’s subscription commences on Subscriber’s acceptance of these Terms of Use and continues unless sooner terminated as herein provided.

6.2 Termination. Either Subscriber or Invicara may terminate Subscriber’s subscription (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or proceeding is not dismissed within 60 days after its filing or commencement, or (c) if Subscriber ceases to be a member in good standing of the digitaltwin-factory, or (d) upon 90 days written notice to the other party without assigning any reason.

6.3 Contributed and Licensed OSC App Retention. The Contribution License Agreement shall survive the termination of Subscriber’s subscription. The Participation License shall survive the termination of Subscriber’s subscription, but only with respect to the Licensed OSC Software licensed by Subscriber prior to termination.

  1. GENERAL PROVISIONS

7.1 Assignment. Subscriber may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, only with Invicara’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

7.2 Relationship of the Parties. The Parties are independent contractors. These Terms of Use and Subscriber’s subscription hereunder do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

7.3 Compliance with Law. Each Party will comply with all applicable laws and regulations of all applicable governmental bodies and agencies in its activities under these Terms of Use. Without limiting the generality of the foregoing, Invicara will comply with its Privacy Policy found at https://invicara.com/privacy-policy.

7.4 Remedies. If Subscriber or an Authorized User breaches these Terms of Use or facilitates a breach of these Terms of Use, Invicara will suffer irreparable harm and therefore be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent or restrain a breach of these Terms of Use.

7.5 Notices. Notices and other communications will be given to Subscriber by Invicara via email. Notices to Invicara should be addressed to support@invicara.com.

7.6 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of these Terms of Use or to exercise any right under these Terms of Use will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

7.7 Entire Agreement; Amendment. These Terms of Use represent the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other prior and/or contemporaneous agreements and understandings, written or oral, between the Parties with respect to the subject matter hereof. No amendment of these Terms of Use will be effective unless it is in writing and signed by an authorized representative for each of the Parties.

7.8 Construction. The Parties acknowledge and agree to interpret these Terms of Use fairly in accordance with their terms and without any strict construction in favor or against either Party. If any provision of these Terms of Use conflicts with the law under which these Terms of Use is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to these Terms of Use, then such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law and the remaining terms, provisions, covenants and restrictions of these Terms of Use will remain in full force and effect.

7.9 Headings. Headings used in these Terms of Use are for ease of reference only and will not be used to interpret any aspect of these Terms of Use.

  1. GOVERNING LAW; JURISDICTION AND VENUE. The Parties expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods. These Terms of Use shall be governed by, and construed in accordance with, the substantive laws of Ireland without regard to its conflict of laws principles. Subscriber hereby submits to the exclusive jurisdiction and venue of the courts sitting in Dublin for the purpose of any action arising out of, or relating to, these Terms of Use or Invicara and irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such action, any claim that Subscriber is not subject personally to the jurisdiction or venue of such courts.