PLATFORM PARTICIPATION AGREEMENT FOR ORCHARD
LAST UPDATED
November 13, 2016
IN GENERAL
GrowCAD, LLC doing business as “Orchard” (“We,” “Us,” or “Our”) operates this website, http://3dorchard.com/ (“Website”). We own the right, title, and interest in this Website, as well as any improvements, updates, revisions, or derivative works thereto, including but not limited to, all intellectual property rights related to the development and publication of the Website. This Platform Service Agreement (“Participation Agreement”) is applicable to you (“User,” “You,” or “Your”) and is effective upon your selecting “Create Account.”.
Read this Participation Agreement carefully before You begin using this Website. The terms contained herein apply to all Users of this Website who create Accounts on this Website, as that term is defined in Section 2, below. By creating an Account, and by accessing and using this Website, You agree to comply with and be bound by these terms, as well as Our “Privacy Policy,” found at https://3DOrchard.com/privacy/, and Our “Terms of Use,” found at https://3DOrchard.com/terms/, which are both herein incorporated by reference.
A “Service” means the consulting, educational, guidance, and other related professional service(s) offered by Uploaders, as that term is defined below.
An “Participant” is a Party that accesses, downloads, and/or uploads a digital model object to this Website, as that term is defined below. An Participant includes any agent, representative, employee, officer, or director of the Participant.
An “Object” is any digital model. Objects may be uploaded and downloaded by Participants.
Accounts. To sign up a Participant, You must register for an account on the Website (“Account”). You must be at least eighteen (18) years old to register for and maintain an Account on this Website. You are required to create a username and to provide a password when You create an Account. You are required to provide other important contact information. All information provided by a Party must be accurate and complete. Participants are hereby prohibited from registering multiple Accounts with the same billing information without receiving prior express written consent from Orchard.
Your General Responsibility. You are required to update Your information in order to maintain its accuracy on an ongoing basis. You will be solely responsible for Your Account and for any activity that occurs with Your Account. You are solely responsible for maintaining the confidentiality and security of your Account information, including passwords. You agree that You will never use another Party’s Account for any reason without that Party’s prior written permission. You may not transfer or assign Your Account without first obtaining the express, written permission of Orchard.
Your Security Obligations. A User who is provided with, or who has provided during the course of registration, a username, password, or any other piece of information as part of the Website’s security procedures, must treat such information as confidential, and the User must not disclose it to any other person or entity. You acknowledge that Your Account is personal, and You hereby agree not to provide any other Party with access to this Website or portions of it using the designated username, password, or other security information required to access Your Account. You further agree to notify Orchard immediately of any unauthorized access to or use of Your Account or any other breach of security. You acknowledge that the unauthorized use of Your Account could cause You to incur liability to Us and/or to other User(s) of this Website. You agree that Orchard shall have no liability for the unauthorized use of Your Account.
Exiting This Website. You agree to exit from Your Account, each time You prepare to leave this Website.
Deleting Your Account. If, after creating Your Account, You would like to delete the Account and cease using the Website, You may submit to Us a request to delete Your Account by sending an email to: contact@3DOrchard.com.
Disabling An Account. We, in Our sole discretion, reserve the right to disable any username, password, or Account access, without prior notice.
You are solely responsible for all of Your activity while using the Website, as well as any legal consequences thereof.
Prohibited Uses.
You agree to maintain a positive sense of decorum in all of Your interactions with other Users on this Website. You agree to maintain a courteous and professional rapport with other Users, including but not limited to, avoiding profanity, rudeness, insults, scandalous words or actions, or otherwise inappropriate behavior, during Your use of this Website.
The Website, including all text, images, designs, graphics, content, source code, object code, data, features, functionality (including but not limited to all information, software, displays, video and audio, and the design, selection and arrangement thereof), are owned by Us, Our licensors, or other providers of such materials, excluding User-Uploaded Content, as that term is defined in Section 5, below. This material, collectively, is protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You may not copy, download, republish, distribute, reproduce, transmit, transfer, prepare derivative versions or works, or otherwise use any of the information contained on this Website, in any form without the prior written consent of Orchard; except that You may access, download, and/or prepare derivative versions or works of any digital model (“Object”) featured on this Website, provided that You do not infringe the intellectual property rights of any third party.
User-Uploaded Content. When You post or otherwise submit information to this Website, You represent and warrant that You have ownership, authority, or permission to post the information. You agree that You will not post any information to this Website, in any format, including but not limited to any Object, text, image, video, or audio, that You do not own, license, or otherwise have permission to upload.
Your Responsibility. When You post or otherwise submit information to this Website, You represent and warrant that You have ownership, authority, or permission to post the information. You agree that You will not post any information to this Website, in any format, including but not limited to any Object, text, image, video, or audio, that You do not own, license, or otherwise have permission to upload. FOR CLARITY, AND IN NO WAY LIMITING THE PRECEDING, YOU HEREBY DECLARE THAT ANY OBJECT(S) YOU UPLOAD TO THIS WEBSITE DO NOT AND WILL NOT INFRINGE, VIOLATE, MISAPPROPRIATE, OR OTHERWISE CONTRAVENE THE RIGHTS OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO, THE PATENT RIGHTS OF ANY THIRD PARTY.
User-Uploaded Content. YOU HEREBY REPRESENT AND WARRANT THAT YOU WILL NOT UPLOAD, PLACE, POST, OR OTHERWISE PUT ANY INFORMATION, INCLUDING BUT NOT LIMITED TO, ANY OBJECT, TEXT, IMAGE, VIDEO, OR CONTENT ONTO THIS SITE, (“User-Uploaded Content”) THAT INFRINGES THE RIGHT(S) OF ANY OTHER PARTY. YOU ALSO AGREE THAT YOU WILL NOT MODIFY, ENHANCE, CHANGE, UPDATE, AMEND OR OTHERWISE PREPARE DERIVATIVE VERSIONS OF ANY USER-UPLOADED CONTENT IN SUCH A WAY THAT YOUR MODIFICATION(S), ENHANCEMENT(S), CHANGE(S), UPDATE(S), AMENDMENT(S), OR OTHERWISE DERIVATIVE VERSION(S) (“Modification of User-Uploaded Content”) RESULT IN CONTENT THAT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
You further agree that you will indemnify, defend, and hold harmless Orchard from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) arising out of, in connection with, or resulting from any violation or alleged violation regarding Your User-Uploaded Content and Your Modification of User-Uploaded Content, and a third-party’s proprietary or intellectual property rights.
USER-UPLOADED CONTENT AND LICENSE OF INTELLECTUAL PROPERTY RIGHTS.
A User may not: (a) copy, download, publish, distribute, repost, or reproduce any images, graphics, designs, logos, videos, text, or any other Website Content, contained on this Website in any form without the prior written consent of Orchard; (b) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, logos, trade names, warranties, disclaimers, or intellectual property rights, proprietary rights, or other symbols, notices, or marks herein; (c) copy, download, publish, distribute, repost, or reproduce any images, graphics, designs, logos, videos, text, source code or object code contained on this Website in any form without prior written consent; (d) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of source code or object code, or textual material featured on this Website; or (e) reverse engineer, disassemble, decompile, decode, or adapt any source code or object code, or processes, featured on this Website.
Feedback. If You provide Orchard any feedback, suggestions, comments, ideas, or other general suggestions (“User Feedback”), You agree to assign all rights in Your User Feedback to Orchard. You further agree that We shall have the right to use Your User Feedback, according to Our discretion and business judgment, whether publicly or internally.
E-mail List(s). You are prohibited from compiling a list of other users of this Website. If You determine to send another user a single e-mail for the purposes of soliciting the business of that other user, You hereby agree to comply with the CAN-SPAM Act, including the provision of a proper opt-out mechanism.
Providing Orchard Notification of Infringement. Users may not violate the intellectual property rights of other Parties, including but not limited to, using the Site to infringe upon the copyright, trademark, trade secret, or patent rights of any other Party. If any Party alleges intellectual property right infringement against a user of this Site, Orchard reserves the right to terminate or suspend any allegedly infringing Account, conduct Our own investigation, and comply with any applicable copyright, trademark, trade secret, or patent law, such as the Digital Millennium Copyright Act of 1998 (“DMCA”), the Lanham Act, and other applicable federal or state intellectual property laws. If You believe that a user of this Site is infringing Your intellectual property rights, please review our DMCA terms, located within our Terms of Use, for sending us proper notification of such infringement: [INSERT LINK TO DMCA SECTION OF TERMS OF USE].
Terms Not Exhaustive. The items within this section are not meant to be exhaustive. We will take any action necessary to protect this Website and Accounts from any acts contrary to the purposes of the Website.
You represent and warrant that You will use the Website in compliance with these terms. You further covenant that You will not use, knowingly allow, permit, nor enable another Party’s use of the Website in conjunction with any illegal or unlawful purpose, or any action contrary to these terms.
We reserve the right to monitor all activity on this Website, according to Our sole discretion. Orchard further reserves the right to take any action(s) We deem necessary to protect this Website, Our interests, other Users, and any other consideration(s) related to the operation of the Website. We may choose to prohibit any User or any activity that runs in contravention to these terms, that is inappropriate to the use of this Website, or that is otherwise unlawful or illegal.
THE WEBSITE AND ALL INFORMATION CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. YOU ACKNOWLEDGE THAT ORCHARD HAS NO FIDUCIARY OBLIGATION, DUTY, OR RELATIONSHIP TO YOU.
ORCHARD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. WE MAKE NO WARRANTIES OF ANY KIND REGARDING THE WEBSITE, 3DORCHARD.COM, INFORMATION FOUND ON THIS WEBSITE, OR SERVICES OFFERED BY THIRD PARTIES THROUGH THIS WEBSITE. WE MAKE NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF ANY INFORMATION SUPPLIED OR IN CONNECTION WITH THE SERVICES OFFERED IN CONNECTION WITH THE WEBSITE. ORCHARD DOES NOT WARRANT THAT THE WEBSITE WILL BE OPERATIONAL, SECURE, ERROR-FREE, OR VIRUS FREE.
You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Our Website to reconstruct any lost data.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY THIRD-PARTY WEBSITE LINKED TO IT.
TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE ORCHARD FROM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THIS WEBSITE AND ANY SUBSEQUENT RELATIONSHIPS YOU DEVELOP WITH OTHER USERS OF THIS WEBSITE.
You, alone, acknowledge that You are responsible for any actions You take while on this Website and for the formation of any business relationships You make while using this Website. You recognize that Your use of the Website and any subsequent actions arising from Your use of the Website are taken solely at Your own risk.
IN NO EVENT WILL ORCHARD, OUR DIRECTORS, OUR OFFICERS, OUR EMPLOYEES, OR OUR AGENTS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, OR UNDER ANY EQUITABLE THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. ADDITIONALLY, YOU AGREE THAT ORCHARD IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, OBSCENE, HARASSING, OR OTHERWISE UNLAWFUL CONTENT OR INFORMATION RESULTING FROM YOUR USE OF THIS WEBSITE OR YOUR RELATIONSHIPS WITH OTHER USERS OF THIS WEBSITE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Orchard and its affiliates, officers, directors, employees, agents, contractors, licensors, and any information providers, from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) arising out of, in connection with, or resulting from any violation or alleged violation of Your breach of or default under the terms or conditions of this Participation Agreement, or any negligence, gross negligence, or willful misconduct by or on behalf of You or Your employees or agents. This also includes Your use of the Website, along with Your use of the Website’s content and services, other than as expressly authorized in this Participation Agreement, or Your use of any information obtained from the Website. Orchard reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by You and in such case, You agree to cooperate with Orchard in the defense of such matter.
You may terminate this Agreement at any time by providing Us with written notice of termination as set forth herein, and such termination shall be effective within fourteen (14) days after Our receipt of such notice. We reserve the right, in Our sole discretion, to terminate any User’s access to this Website, access to an Account on this Website, or to otherwise prevent use of this Website, at any time, with or without notice, effectively immediately upon Our action. Any such termination may result in the forfeiture or destruction of the User’s Account.
This Agreement shall be construed, governed, and enforced under the laws of the United States and the State of Georgia (without regard to rules governing conflict of laws). You agree that venue for all actions, relating in any manner to this Agreement, shall be in a federal or state court of competent jurisdiction located in Gwinnett County, Georgia. Each Party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above.
Nothing contained in this Participation Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Us nor You, by virtue of this Participation Agreement, shall have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Participation Agreement will continue in full force and effect.
No waiver by Orchard of any term or condition set forth in this Participation Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Us to assert a right or provision under this Participation Agreement shall not constitute a waiver of such right or provision.
This Platform Participation Agreement, along with the Terms of Use and the Privacy Policy referenced herein, represent the entire understanding and complete agreement by and between You and Orchard.
BY USING THIS WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY ALL APPLICABLE TERMS AND CONDITIONS.
To ask questions or send comments, You may contact Us at:
121 River Way Lane
New Market, AL 35761