Terms of Use
Last Updated: Dec 1, 2023
MASTERPIECE X
TERMS OF USE
Brinx Software Inc., also doing business as Masterpiece Studio (“We”, “Us”, “Our” or “Masterpiece”), owns the Masterpiece Offerings (as hereinafter defined) and makes the Masterpiece Offerings available in accordance with these Terms of Use (the “Terms”). These Terms apply to all Users of any Masterpiece Offerings. Please note that other terms and conditions will continue to apply to use of other products and services offered by Masterpiece, such as Masterpiece VR and Masterpiece Studio Pro, and these terms and conditions must be reviewed and agreed to separately from these Terms which apply only to the Masterpiece Offerings (including use of Masterpiece Offerings to generate, modify or access Content) described herein.
PLEASE NOTE THAT THESE TERMS CONTAIN IMPORTANT RESTRICTIONS AND LIMITATIONS, INCLUDING RESTRICTIONS ON USERS’ ABILITY TO RESTRICT HOW OTHERS USE 3D ASSETS AND OTHER CONTENT MADE AVAILABLE IN THE MASTERPIECE X COMMUNITY LIBRARY DUE TO CC0 STATUS APPLYING TO ALL SUCH WORKS, SO PLEASE READ THEM CAREFULLY BEFORE USING THE MASTERPIECE OFFERINGS OR CONTENT. By accessing or using the Masterpiece Offerings and/or Content, You hereby signify that You have read, understood, and agree to be bound by these Terms.
PLEASE BE AWARE THAT SECTION 17 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND MASTERPIECE HAVE AGAINST EACH OTHER WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1.ABOUT MASTERPIECE X
Masterpiece provides Users a set of creative tools for 3D asset content creation and collaboration and permit Users to access the Masterpiece X Community Library to share, contribute and use (including remixing) Content.
Important Note: Except as expressly provided (i.e., a particular piece of Content is subject to another license with Masterpiece which references these Terms), all Content shared to or obtained from the Masterpiece X Community Library is released under a Creative Commons “No Rights Reserved” public domain dedication license (a “CC0 License”). This means that any User uploading Content to the Masterpiece X Community Library is opting out of any copyright and database protection, meaning other Users can freely use such Content for any use, including for personal or commercial use, without obtaining permission from the Content creator. Users should be aware that once Content is uploaded to the Masterpiece X Community Library, the application of the CC0 License is automatic and cannot be revoked or ‘undone’. While Users are encouraged to provide attribution when using Content from the Masterpiece X Community Library, doing so is not required.
2.DEFINITIONS
For the purposes of these Terms, in addition to the capitalized terms defined elsewhere in these Terms, the following terms shall have the meanings ascribed to them as follows:
“API” means Masterpiece’s proprietary application programming interface as made available by Masterpiece to Users from time to time;
“Content” means a model, animation, photo, video or other subject matter, including but not limited to 3D assets, created, modified or accessed using the Masterpiece Offerings;
“Local Export” means an export of Content by You from a Masterpiece Offering to a Local Store;
“Local Store” means local machine storage or local cloud storage that is under Your control whether through ownership of such storage or via leasing of such storage;
“Masterpiece Offerings” means the Website (including, without limitation, the Masterpiece X Community Library), the Software and the Services;
“Masterpiece X Community Library” means a public gallery hosted on the Website that contains Content freely accessible and available to Users and includes any Content uploaded or exported by Users to such public gallery;
“Paid Masterpiece Features” means add-ons and optional features made available from time to time by Masterpiece or its partners through the Masterpiece Offerings at a fee, as described in more detail in the Paid Terms;
“SDK” means a proprietary software development kit made available by Masterpiece for the purpose of permitting development of applications to interface with the API;
“Services” means the cloud-based portions of the Masterpiece X creative tools, including the related capabilities, that allow Users to interact with other Users, generate, edit, download and upload Content, manage Accounts, make payments, auto-update applications, host third-party software and enable cloud processing;
“Software” means the downloadable software application of the Masterpiece X creative tool;
“Users” means persons and entities who have been authorized by Us to use the Masterpiece Offerings;
“Website” means the masterpiecevr.com, masterpiecestudio.com, and masterpiecex.com websites and all associated subdomains; and
“You” or “Your” means the individual accepting these Terms for personal use or on behalf of a company or other legal entity (if expressly permitted by Masterpiece) for which that individual is accepting these Terms.
3.ELIGIBILITY
1.Registration and Account. To access and use the certain features of the Masterpiece Offerings, You will need to register for an account (an “Account”) by providing Us with certain information in accordance with Our Privacy Policy. You agree that You are responsible for keeping Your Account password confidential and secure, and further understand that You are solely responsible and liable for any activities that occur under Your Account. To use and/or register for the Masterpiece Offerings, You must be over the age of majority in the jurisdiction in which You reside in order to use the Services, including to make purchases (i.e., purchases of Paid Masterpiece Features). The Masterpiece Offering are made available on these Terms to individual Users only. For enterprise users and educational institutions, please contact Us at sales@brinx.ca to discuss licensing options. For developers wishing to use Developer Tools, please consult the Developer Terms.
2.Use of Developer Tools. Masterpiece hereby grants You the right to access and use the Masterpiece API, SDK, and the accompanying documentation, code and related materials (“Developer Tools”) subject to You (a) registering an Account; and (b) establishing a developer Account and agreeing to the Masterpiece X Developer Tools - Terms of Use located at https://www.masterpiecex.com/legal as may be updated or modified by Masterpiece from time to time (the “Developer Terms”). The Developer Terms are hereby incorporated into these Terms and shall, in addition to these Terms, govern Your use of the Developer Tools. In the event of direct conflict between the Masterpiece Developer Terms and these Terms, the Developer Terms will control with respect to that conflict.
3.Your Obligations. It is Your sole responsibility to ensure that You comply with all applicable laws and regulations in respect of Your use of the Masterpiece Offerings and Content. By using, downloading or otherwise accessing any such Content and/or Masterpiece Offerings, You represent and warrant that You (and not Masterpiece) are solely responsible for compliance with all applicable laws and regulations in respect of any products and/or services that You will develop or offer to third parties using the Masterpiece Offerings (including any Content you generate or modify using or obtain from the Masterpiece Offerings), including applicable intellectual property and privacy laws.
4.LICENSE TO USE THE MASTERPIECE OFFERINGS
1.Software License Grant. Subject to these Terms (including payment of the applicable fees for a Paid Masterpiece Offering), We grant to You a limited, personal, non-exclusive, non-transferable, non-sublicensable license to access and use the Services and to download the Software and to use one copy of the Software and access and use the Services (including the Website, to the extent necessary for Your permitted use of the Services), for Your own personal uses and not for resale or further distribution. You will have the ability to export Content to a Local Store and You are not obliged to grant any rights to any third parties in respect to any Content that is only exported to a Local Store. You may also export Content to the Masterpiece X Community Library, however, when You export Content to the Masterpiece X Community Library, You will be granting a CC0 License in respect to such Content.
2.Usage Restrictions. You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Masterpiece Offerings; (b) circumvent any User limits or other license timing or use restrictions that are built into any Masterpiece Offerings; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in any Masterpiece Offerings in any form to any person without the written consent of Masterpiece; (e) remove any proprietary notices, labels, or marks from any Masterpiece Offering; (d) unbundle any component of any Masterpiece Offerings; (e) build a product or software that is competitive with any Masterpiece Offerings; or (f) copy any ideas, features, functions or graphics of any Masterpiece Offerings.
3.Use of the Masterpiece X Community Library. As part of your license under Section 4.1, You will have the right to access and use the Masterpiece X Community Library and all Content contained therein on the CC0 License terms. You shall not use the Masterpiece X Community Library for long-term storage of Your Content. We may at any time delete any or all Content from the Masterpiece X Community Library in Our sole discretion without notice to anyone. Further, you agree to adhere to any fair use restrictions that apply to use of the Masterpiece X Community Library including not extracting or using Content to create or offer a product or service that competes with Masterpiece.
4.Reservation of Rights. Except for the specific licenses granted to You herein, We and Our licensors retain all right, title and interest in and to the Masterpiece Offerings and the underlying software and technology, including all related intellectual property rights in the same. The Masterpiece Offerings and related software and technology are protected by applicable intellectual property laws, including copyright laws and international treaties.
5.Third Party Offerings. You acknowledge and agree that the Masterpiece Offerings may contain advertisements from other third parties. If You elect to have any business dealings with anyone whose products or services may be advertised via the Masterpiece Offerings, You acknowledge and agree that such dealings are solely between You and such advertiser and You further acknowledge and agree that Masterpiece shall not have any responsibility or liability for any losses or damages that You may incur as a result of any such dealings. Further, the Masterpiece Offerings may contain links to other websites and/or services that are not owned or controlled by Masterpiece and may integrate with or rely on third party services, including, without limitation, third-party owned or operated software, hardware, or artificial intelligence (“AI”) technologies and services (“AI Services”) that are not owned or operated by Masterpiece. In no event shall any reference or link to any third party, third-party advertisement, third-party product or service be construed as an approval or endorsement by Masterpiece of that third party, third-party advertisement, third-party product or service. Any third-party websites or services accessed from the Masterpiece Offerings or third-party integrations used in connection with Masterpiece Offerings are subject to the terms and conditions applicable to those websites, services, and integrations and You are responsible for determining those terms and conditions and complying with them. The presence within the Masterpiece Offerings of a link to any other websites, services, or integrations does not imply that Masterpiece endorses or accepts any responsibility for the content of such websites or the services or integrations offered thereon, and You hereby release Masterpiece from all liability and/damages that may arise from Your use of such websites or integrations or receipt of services from such third parties.
5. CONTENT TERMS
1.Rights in Content. As between You and Masterpiece, subject to the Content license in Section 5.2 and Masterpiece’s rights to the Masterpiece Offerings in Section 4.4, You retain all rights, title, and interest in and to Content that You generate or modify using Masterpiece Offerings.
2.Content License Grants. For any Content that You upload, export or otherwise make available to the Masterpiece X Community Library, You hereby grant other Users and the public a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sub-licensable license to make, use, sell, offer for sale, import, copy, modify, translate, make derivative works of, publicly display, publicly perform, transmit, distribute, publish, make available and otherwise fully exploit the Content for any and all purposes including commercial purposes. For any Content that You export to the Masterpiece X Community Library, You hereby fully waive any moral rights, droit d’auteur or similar rights that You may have in such Content in favour of all Users pursuant to this Section 5.2 and all of their successors, assigns and permitted licensees.
3.Responsibility for Content Use. The Masterpiece Offerings use machine learning models that generate predictions based on patterns in data. We are constantly working to improve the Masterpiece Offerings, including through integration with and support from AI Services. However, given the probabilistic nature of machine learning and generative AI, we cannot guarantee that Content you generate, modify or access using the Masterpiece Offerings will be unique to You or in compliance with intellectual property laws. You should manually review and evaluate Content generated, modified, or accessed using Masterpiece Offerings as appropriate for Your use case. You shall be solely responsible for all decisions made or damages suffered based on Your use of or reliance on Content generated, modified, or accessed using Masterpiece Offerings.
4.Content Restrictions. You are prohibited from posting, uploading, transmitting any Content or other materials to the Masterpiece Offerings (including the Masterpiece X Community Library), or using the Masterpiece Offerings to generate or modify Content, that: (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable; (b) You do not have a right to generate, use or make available under any law or under a contractual relationship; (c) infringes, misappropriates or otherwise violates any patent, trademark, trade secret, copyright or other proprietary rights of any person or entity (including privacy rights); (d) is or contains unsolicited or unauthorized advertising, solicitations for business promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or any Masterpiece Offering or that of any Users or viewers of any Masterpiece Offering or that compromises anyone’s privacy; (f) or contains any falsehoods or misrepresentations or creates an impression that You know are incorrect, misleading, or deceptive, or any material that could damage or harm minors in any way. You acknowledge and agree that You are solely responsible for ensuring that any Content You submit to any Masterpiece Offering or generate or modify using Masterpiece Offerings complies with the foregoing restrictions and all applicable laws and does not violate any third-party rights (including without limitation, intellectual property rights, privacy rights, publicity rights and/or rights of personality). We have the right, in Our sole discretion, to review Content for suitability and to accept or reject the storing of such Content within the Masterpiece Offerings (including the Masterpiece X Community Library), including, without limitation, the right to subsequently remove any Content from the Masterpiece Offerings (including without limitation the Masterpiece X Community Library). You may not use Content generated or modified using Masterpiece Offerings or any Content that is available in the Masterpiece X Community Library for the purpose of creating Your own offerings that may be competitive with any of the Masterpiece Offerings or for inclusion in any electronic repository of models, animations or other subject matter that is operated by You or on Your behalf.
5.Service Data. You acknowledge and agree that Masterpiece has the right to create aggregated and anonymized statistical analytics in respect to Users’ use of the Masterpiece Offerings and other parameters and characteristics of the Masterpiece Offerings and to use Content for machine learning activities and/or other similar activities provided that the results from such machine learning and/or other activities do not contain any personal information or other information that would identify You or otherwise be traceable to You (each of the foregoing, “Anonymous Service Data”). Please consult our Privacy Policy for more details. Masterpiece shall own all right, title and interest in and to the Anonymous Service Data, including all intellectual property rights in the Anonymous Service Data and is entitled to fully exploit such Anonymous Service Data without restriction, and You hereby assign, transfer and convey to Masterpiece any ownership interest You may have in any Anonymous Service Data.
6.Feedback. We welcome Your suggestions, comments and feedback on any of the Masterpiece Offerings (“Feedback”). If You provide Us with Feedback, You agree that: (a) We are not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not confidential or proprietary information belonging to You or any third party and You have all of the necessary rights to disclose the Feedback to us; (c) Masterpiece (including all of its affiliates and all of its and their successors and assigns) may freely use Feedback without any restrictions; and (d) You are not entitled to receive any compensation or re-imbursement of any kind in respect of Feedback.
6.CREDITS AND FEES.
1. Paid Masterpiece Offerings. Certain features and functionality of the Masterpiece Offerings can be accessed free of charge. Paid Masterpiece Offerings can be accessed by enrolling in Masterpiece subscription plans (each, a “Plan”) and/or redeeming Masterpiece credits (“Credits”). Credits are available for purchase as a one-time fee (“One-Time Fee”) or as part of a recurring Plan subscription fee (“Subscription Fee” and together with One-Time Fee and Developer Fees, “Fees”). Credits can solely be applied to Masterpiece Offerings and cannot be converted or exchanged for cash. Further details regarding Plans and Credits, including pricing and refunds, can be found at https://www.masterpiecex.com/pricing (“Paid Terms”). Fees for use of the Developer Tools (“Developer Fees”) can be found at https://www.masterpiecex.com/generate-api. Masterpiece reserves the right to introduce new Fees or convert existing free functionality of some or all aspects of Masterpiece Offerings into Paid Masterpiece Offerings at any time by providing at least thirty (30) days prior written notice to Users.
2.Subscription Fees. If You sign up for a Plan with a recurring subscription (“Subscription”), Your Subscription Fees will depend on the Subscription module You select. Subscription Fees are billed on the first day of each Subscription period billing cycle until the end of the Subscription period. You must maintain accurate payment information and notify Us of any changes to billing information. If Your payment method expires, is invalid, or is otherwise not able to be charged for Subscription Fees for any reason, Your Subscription may not be continued or renewed (as applicable). You must provide a valid payment method within ten (10) days of a missed Subscription Fee payment to continue receiving Subscription benefits without interruption.
3.Subscription Renewals. Upon the expiry of Your initial Subscription period, on the day the initial Subscription period expires, Your Subscription will automatically renew for an additional term of the same length as the initial Subscription period. You will be charged in full at the then-current price for the Subscription for each such renewed Subscription period. Masterpiece will provide You with at least thirty (30) days’ prior notice of any material modifications to Your Subscription, including changes to Subscription Fees, before such changes take effect. All such changes will be effective thirty (30) days following the date of the notice. If You modify your Subscription plan which results in changes to Subscription Fees, the new Subscription Fees will be effective and billed on the first day of the subsequent Subscription billing cycle.
4.Invoicing and Payment Processing. Fees may be collected and processed via a third-party service or invoiced to You. Subscription Fees may be invoiced and/or charged on a monthly or annual basis, all as specified at the time of subscription. Unless otherwise stated in an invoice, invoiced Fees are due net thirty (30) days from the invoice date. Subject to Paid Terms, Fees are non-refundable. Any incurred Fees not received from You by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at Masterpiece’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.Taxes. All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon Masterpiece’s net income) shall be assumed by and paid for by You, not Masterpiece, regardless of whether included in any invoice.
6.Suspension of Services. If (a) You fail to provide an updated Subscription payment method per Section 6.2 above; or (b) Your Fees are thirty (30) days or more overdue (except with respect to Fees then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Masterpiece reserves the right to suspend your access to the Masterpiece Offerings without liability to You until all outstanding Fees are paid in full.
7.TERMINATION AND SUSPENSION OF SERVICES
1.Restrictions on Use. Masterpiece may alter, suspend, or discontinue the Masterpiece Offerings, at any time and for any reason or no reason, without prior notice. The Masterpiece Offerings may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Masterpiece reserves the right to limit, restrict, and deny access to the Masterpiece Offerings to any person, or in any geographic area or jurisdiction, at any time, and at Masterpiece’s sole discretion to address suspicious or fraudulent usage. Furthermore, although Masterpiece has no obligation to monitor Your use of the Masterpiece Offerings, Masterpiece may do so and may: (a) immediately suspend or prohibit use of the Masterpiece Offerings if You are engaging in any illegal conduct or breach of the license restrictions; (b) suspend or prohibit use of the Masterpiece Offerings for any non-compliance with these Terms; and in the case of non-compliance under Section 7(b), such suspension or prohibition on use shall be subject to notifying You in advance of such conduct, breach or non-compliance and You will be provided with a reasonable period to cure such breach (if the breach is capable of cure).
2.Termination. In addition to the foregoing rights, Masterpiece may terminate access to the Masterpiece Offerings due to (a) a request by You to cancel or terminate Your Account; (b) discontinuance or material modification to the Masterpiece Offerings or any part thereof; (c) a request and/or order from law enforcement, a judicial body, or other government agency; (d) where provision of any of the Masterpiece Offerings to You is or may become unlawful; (e) unexpected technical or security issues or problems; or (f) Your participation in fraudulent or illegal activities. We may also terminate these Terms at any time if we decide to stop offering the Masterpiece Offerings. Any termination or suspension as specified above shall be made by Masterpiece in its sole discretion, and Masterpiece will not be responsible to You or any third party for any damages that may result or arise out of such termination or suspension of Your Account and/or access to the Services.
3.Result of Termination. Any termination or suspension as specified in Section 7 shall not release You from payment of Fees owing up to and including the effective date of termination or suspension. The following previsions shall survive any termination of these Terms: Sections 3.2, 3.3, 4.2 – 6, 7.3 and 8 to 22.
8.CONFIDENTIAL INFORMATION
1.Definition of Confidential Information. “Confidential Information” means any non-public information, technical data, or know-how concerning either party, including, but not limited to, non-public information about research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, business plans or finances. Obligations of non-disclosure will not apply to Confidential Information of the disclosing party which the receiving party can reasonably establish (a) was in the possession of the receiving party without an obligation of confidentiality at the time of disclosure; (b) prior to or after the time of disclosure became part of the public domain without the act or omission of the receiving party to whom it was disclosed; (c) was disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (d) was independently developed by the receiving party without use or reliance upon the disclosing party’s Confidential Information. For greater certainty, Content exported to the Masterpiece X Community Library is not Confidential Information.
2.Use of Confidential Information. Receiving party agrees to protect the confidentiality of the Confidential Information of the other disclosing party in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Each party covenants to the other party that it will not at any time, other than in accordance with these Terms, disclose the Confidential Information of the other to any person or entity without the prior written approval of the disclosing party, or use any such Confidential Information for any purpose, other than as necessary to fulfill these Terms, unless specifically pre-approved in writing by the disclosing party. However, the receiving party may disclose the disclosing party’s Confidential Information in accordance with a judicial or other governmental order, provided that the receiving party uses commercially reasonable efforts to oppose the disclosure to third parties, the disclosure of the Confidential Information is restricted in the same manner as is the confidential information of the receiving party or other litigating parties, and the receiving party shall give the disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
3.Disclosure; Remedies. The receiving party may disclose the disclosing party’s Confidential Information to its employees, consultants and subcontractors who have a ‘need-to-know’ for the purposes of fulfilling these Terms and exercising its rights under these Terms. Each party shall execute appropriate written agreements with employees, consultants and subcontractors who provide access to the disclosing party’s Confidential Information sufficient to enable the receiving party to comply with all of the confidentiality provisions of these Terms. Neither party shall reverse engineer, decompile or disassemble any Confidential Information of the other party. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections in these Terms, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by both parties that any other available remedies may be inadequate.
10.DISCLAIMERS
THE MASTERPIECE OFFERINGS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE MASTERPIECE OFFERINGS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MASTERPIECE OFFERINGS ARE PROVIDED WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND AND ALL SUCH WARRANTIES AND CONDITIONS ARE HEREBY DISCLAIMED, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MASTERPIECE OR THROUGH THE MASTERPIECE OFFERINGS WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED HEREIN.
WITHOUT LIMITING THE FOREGOING, MASTERPIECE, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT GENERATED, MODIFIED, OR PROVIDED TO YOU THROUGH THE MASTERPIECE OFFERINGS IS UNIQUE, ACCURATE, RELIABLE OR CORRECT; THAT THE MASTERPIECE OFFERINGS AND CONTENT WILL MEET YOUR REQUIREMENTS; THAT THE MASTERPIECE OFFERINGS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. MASTERPIECE PROVIDES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER IN RESPECT TO ANY CONTENT GENERATED, MODIFIED, OR MADE AVAILABLE VIA THE MASTERPIECE OFFERINGS. YOUR USE OF ANY SUCH CONTENT SHALL BE ON AN "AS IS" AND "AS AVAILABLE" BASIS.
11.LIMITATIONS OF LIABILITY
1.LIMITS OF LIABILITY. IN NO EVENT SHALL MASTERPIECE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE MASTERPIECE OFFERINGS, THE CONTENT, OR OTHERWISE ARISING OUT OF OR RELATED TO THESE TERMS OR ANY OF THE SUBJECT MATTER OF THESE TERMS (WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY). OUR AGGREGATE LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED THE GREATER OF (A) THE FEES PAID TO MASTERPIECE IN THE TWELVE (12) MONTHS BEFORE THE EVENT CAUSING LIABILITY AROSE, OR (B) ONE HUNDRED CAD DOLLARS. UNDER NO CIRCUMSTANCES WILL MASTERPIECE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM USE OF OR RELIANCE ON CONTENT, OR HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE MASTERPIECE OFFERINGS OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
2.Indemnity. You agree to defend, indemnify and hold Masterpiece, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors (“Masterpiece Indemnitees”) harmless from any actions, claims, demand, damages and/or liabilities, including reasonable attorneys’ fees, arising from or relating to: (a) Your use of the Masterpiece Offerings or Content; (b) any violation by You of these Terms; (c) Your violation of any rights of another User; (d) any violation by You of any applicable law or regulation; (e) Content generated, modified, accessed through or uploaded by You to the Masterpiece Offerings; and (f) any breach of any representation or warranty made by You in these Terms. For the purposes of this Section 10.2, you acknowledge that Masterpiece is acting as agent and trustee for Indemnified Parties.
12.IP INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other similar applicable laws for jurisdiction outside of the United States, We have adopted a policy of terminating, in appropriate circumstances and in Our sole discretion, Accounts of Users who are deemed to be repeat infringers. We may also, in Our sole discretion, limit access to the Masterpiece Offerings and/or terminate the Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. We may also remove any Content from the Masterpiece Offerings that we have reasonable basis for believing may infringe, misappropriate or otherwise violate anyone intellectual property or other rights.
If You believe that anything on or available through the Masterpiece Offerings infringes upon any copyright which You own or control, You may file a notification of such infringement in accordance with the DMCA or other similar applicable laws for jurisdiction outside of the United States with Our designated agent as set forth below:
Brinx Software Inc.
60 Spruce Street, Ottawa, ON, Canada K1R 6N9
support@brinx.ca
13. EXPORT CONTROL
Use of the Masterpiece Offerings and/or Content may be subject to the export and import laws of Canada, the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Masterpiece Offerings and/or Content may not be exported or re-exported (a) into any Canadian or U.S. embargoed countries or (b) to anyone on designated persons or designated entities lists maintained by either of the Canadian or United States governments. By using Masterpiece Offerings and/or Content, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Masterpiece Offerings and/or Content for any purposes prohibited by United States or Canadian law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
14.RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15. ASSIGNMENT
You may not assign these Terms or any rights granted hereunder without Masterpiece’s prior written consent. Masterpiece may assign these Terms at any time and for any reason.
16. NO THIRD-PARTY BENEFICIARIES
Subject to Section 10.2, there are no third-party beneficiaries to these Terms.
17. GOVERNING LAW
Any Dispute or claim relating in any way to Your use of the Masterpiece Offerings will be governed and interpreted by and under the laws of Ontario, Canada without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these Terms. You hereby attorn to the exclusive jurisdiction of the Provincial and Federal courts located in the Province of Ontario with respect to any Dispute or claim arising out of or in connection with these Terms.
18. DISPUTE RESOLUTION
1.Arbitration Agreement. You agree that any dispute or claim relating in any way to these Terms, Your access or use of the Masterpiece Offerings, the Content, to any products or services available through the Masterpiece Offerings, or to any aspect of your relationship with Masterpiece (“Dispute”), will be resolved by binding arbitration, rather than in court, except that (a) You may assert claims in small claims court if your claims qualify; and (b) You or Masterpiece may seek equitable relief in court for infringement or other misuse of its intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This dispute resolution provision in Section 17 (“Arbitration Agreement”) shall apply, without limitation, to all Disputes that arose or were asserted before the date You entered into these Terms.
2.Pre-Arbitration Dispute Resolution. Masterpiece is always interested in resolving Disputes amicably and efficiently, and most User concerns can be resolved quickly and to the User’s satisfaction by emailing Us at support@brinx.ca. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Masterpiece should be sent to Brinx Software Inc. at 60 Spruce Street, Ottawa, ON, Canada K1R 6N9. The Notice must (a) describe the nature and basis of the Dispute and (b) set forth the specific relief sought. If Masterpiece and You do not resolve the claim within sixty (60) calendar days after the Notice is received, You or Masterpiece may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Masterpiece or You will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Masterpiece is entitled.
3.Arbitration Rules and Forum. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under USD $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where You live or at another mutually agreed location. If the parties are unable to agree on a location, the determination will be made by JAMS. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.
4.Authority of Arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. Each party to the Dispute shall bear its own legal costs in connection with a mediation and/or arbitration.
5.WAIVER OF JURY TRIAL. YOU AND MASTERPIECE 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 Masterpiece are instead electing that all claims and Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
6.WAIVER OF CLASS OR OTHER NON-INDIVIDUALIZED RELIEF. ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief under a Dispute, then that claim must be severed from the Dispute’s arbitration and brought into the Provincial or Federal Courts located in the Province of Ontario. All other claims and/or Disputes shall be arbitrated.
7.30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of Your decision to opt out to the following address: 60 Spruce Street, Ottawa, ON, Canada K1R 6N9, within 30 days after first becoming subject to this Arbitration Agreement and by email to Masterpiece at support@brinx.ca. Your notice must include Your name and address, Your Account username (if any), the email address You used to set up Your Account (if You have one), and an unequivocal statement that You want to opt out of this Arbitration Agreement. If You opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to You. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that You may currently have, or may enter in the future, with Us.
8.Severability. Except as provided in subsection 17.7, if any part or parts of this Arbitration Agreement (other than the subsection 17.6) above are found under the law to be invalid or unenforceable, the parties agree to replace such part or parts with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable part or parts, and this Arbitration Agreement will be enforceable as so modified. If any of the provisions of subsection 17.6 above are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
9.Modification; Survivability. Notwithstanding any provision in this Arbitration Agreement to the contrary, We agree that if Masterpiece makes any future material change to this Arbitration Agreement, You may reject that change within thirty (30) days of such change becoming effective by writing Masterpiece at the following address: 60 Spruce Street, Ottawa, ON, Canada K1R 6N9. By rejecting any future change, You are agreeing that you will arbitrate any Dispute in accordance with the language of this Arbitration Agreement as of the date You first accepted these Terms (or accepted any subsequent changes to these Terms). This Arbitration Agreement will survive the termination of Your relationship with Masterpiece. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will constitute Confidential Information.
19. USER DISPUTES
You agree that You are solely responsible for your interactions with any other User in connection with the Masterpiece Offerings or Content, and Masterpiece will have no liability or responsibility with respect thereto. Masterpiece reserves the right, but has no obligation, to become involved in any way with disputes between Users.
20. ENTIRE AGREEMENT
These Terms, including Our Privacy Policy, the Arbitration Agreement, the Developer Terms, and the Paid Terms constitute the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal or representation (whether written or oral) concerning its subject matter.
21. SEVERABILITY
No failure or delay by Masterpiece in exercising any right, power, or remedy under these Terms, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
22. AMENDMENT
Masterpiece may amend these Terms at any time and at its sole discretion. We will notify You of such amendments by posting notice on the Website, updating the “Last Updated” date at the top of these Terms, or otherwise delivering notice through the Masterpiece Offerings or to the contact information You provided to Masterpiece. Any material amendments to these Terms shall become effective thirty (30) days following the date of the notice and Your acceptance of the revised Terms or decision to continue using the Masterpiece Offerings thereafter (as applicable) shall constitute acceptance of the revised Terms.
22. LANGUAGE
The parties acknowledge that they have expressly required that these Terms and all related documents be drafted in the English language. The parties agree that these Terms will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the party that drafted the relevant language.