Cargo End User License Agreement
Last Modified: May 11, 2023
This Cargo End-User License Agreement (the “Agreement”) is a legal agreement between the “User” accepting this Agreement (also referenced herein as “you” or “your”) and KitBash3D LLC, a California company (“Company”) regarding the desktop platform offered by the Company and known as “Cargo” (also referred to herein as the “Platform”), as well as any 3D digital design or modeling assets made available by Company in connection with the Platform (the “Assets”). Collectively, access to the Platform and the Assets are offered to the User under a “Plan” as described herein. User and the Company are referred to herein individually as a “Party” and collectively as the “Parties.”
CARGO PLANS OFFERED
The Company offers the Platform through three (3) different Plans: (1) Cargo Basic, (2) Cargo Pro, and (3) Cargo Teams. Each Plan is described briefly below. Upon registering for a Cargo account, User will be enrolled in Cargo Basic. User may opt into a paid plan at any time via the Account or Plans page within Cargo and for the pricing in effect and displayed on the Plans page at that time. Cargo Teams may require additional registration requirements and documentation prior to any Assets being made available to any user. Other Plans, including custom Plans, may be created/added in the sole discretion of the Company.
Cargo Basic is a free Plan for individual users, and users of Cargo Basic will not be billed for use of the Platform. Cargo Basic is licensed on an individual basis to one (1) user/seat per Plan and may not be shared by multiple individuals. In addition to any Kits that a Cargo Basic user has previously purchased or received under an Individual License (but not through Small Studio or Enterprise Licensing), Cargo Basic users will also have a limited selection of free Assets available specifically through the Platform, regardless of previous purchases or lack thereof.
Cargo Basic users cannot share this Plan with others. Use of one Cargo Basic Plan by more than one (1) individual is considered misuse of the Plan and a breach of this Agreement. In the event that more than one (1) individual would like to access the Platform for free, each individual must create their own, individual Cargo Basic account.
Cargo Pro is a paid Plan for individual users only, and users of Cargo Pro will be billed for use of the Platform. Cargo Pro is licensed on an individual basis to one (1) user/seat per Plan and may not be shared by multiple individuals. Under Cargo Pro Plans, the user account/seat is assigned to a specific individual via email address and cannot be shared amongst multiple individuals. Use of the user account/seat by any individual other than the specific, assigned individual for this Plan is considered a material breach of this Agreement. For the avoidance of doubt, Cargo Pro may not be used by any entity with two (2) or more members, employees, independent contractors, or other team members; in such cases, any entity interested in a paid subscription will be required to use Cargo Teams for their team members, and subject to the terms of either plan.
Cargo Pro users will have unlimited access to the “KitBash3D Model and Material Libraries” offered by the Company and exclusive Assets only available to paid users of Cargo.
Cargo Pro users cannot share this Plan with others. Use of one Cargo Pro Plan by more than one (1) individual is considered misuse of the Plan and a material breach of this Agreement. In the event that any entity with more than one (1) individual on its team would like to access the Platform as a paid user, Cargo Teams must be purchased.
Cargo Teams is a paid Plan for multiple users, and users of Cargo Teams will be billed for use of the Platform. Any entity using Cargo that has two (2) or more owners, employees, independent contractors, or other team members interested in a paid subscription will be required to use Cargo Teams, regardless of how many individual users will actually utilize Cargo. For example, if an entity has two (2) owners but only one (1) owner will be utilizing Cargo, a Cargo Teams Plan must still be purchased. Cargo Teams Plans are licensed in increments of five (5) users/seats with a five (5) user/seat minimum. Under Cargo Teams Plans, user accounts/seats are assigned to specific individuals via email address and cannot be shared amongst a larger team. Use of user accounts/seats by individuals other than those specific, assigned individuals is considered a material breach of this Agreement.
Cargo Teams users will have unlimited access to the KitBash3D Model and Material Libraries and exclusive Assets only available to paid users of Cargo. Additionally, Cargo Teams users may designate managing team members and consolidated billing is available for the Cargo Team account.
Please note: all users utilizing a Cargo Teams account must also agree to this Agreement, the Terms and Conditions, and any other terms required by the Company prior to their use of the Platform.
The current features offered through Cargo Basic, Cargo Pro, and Cargo Teams and other information about the Plans can be found within the Cargo “Terms and Conditions”, found at https://kitbash3d.com/pages/cargo-terms-and-conditions, which are incorporated herein by reference. The Terms and Conditions are subject to change, however, the Company will notify User upon any changes to the Terms and Conditions. By agreeing to abide by the terms of this Agreement, User also agrees to abide by the Terms and Conditions at all times.
The Company may update the features, pricing, or other details of each Plan from time to time. In accordance with applicable law, the Company may make such changes without prior notice. In the event of such changes, the Company will notify users of any relevant changes. The continued use of Cargo after such notification will be deemed your acceptance of such changes.
ASSETS AS A SERVICE; LICENSE
User shall have a limited, revocable, non-transferrable, non-exclusive worldwide right and license to utilize the Assets for any personal or commercial purpose under the terms of this Agreement. No ownership interest in the Assets is conveyed to the User as a result of this Agreement or as a result of the use of Cargo. The Parties understand and acknowledge that this license may be revoked in the event that User breaches this Agreement in any way. In the event that User’s license to the Assets is revoked, User shall destroy the Assets in User’s possession and may be required to sign a certification stating that the Assets have been destroyed.
Notwithstanding the foregoing, the Parties understand and agree that any intellectual property created by the User through use of the Platform by the User or that otherwise incorporates any Assets will remain the property of the User solely, even in the event of revocation.
User understands and agrees that access to the Platform is required for use of the Assets. Termination of the Plan or uninstallation of the Platform will render the Assets unusable for use in creation of new Content, even if the Assets have been downloaded and used previously.
TERM OF AGREEMENT
The term of this Agreement shall commence on the date of acceptance by the User and shall continue in perpetuity (the “Term”), unless either of the following events occur: (1) the User requests deactivation of their Cargo user account, deletion of their data from Company systems and databases in a manner that makes the ongoing use of Cargo impossible, or both; or (2) the Company notifies the User of deactivation of their user account for any reason, including but not limited to material breach.
FEES FOR SERVICES
As of the date of this Agreement, fees for the services offered through Cargo (the “Fees”) are as listed within the Terms and Conditions, found at https://kitbash3d.com/pages/cargo-terms-and-conditions. By accepting this Agreement and registering for a Cargo account, you acknowledge and agree to the Fees that are charged to your payment source. It is the User’s responsibility solely to periodically review the charges to their payment source and to retain any such records related to such charges.
USE OF PLATFORM
User may utilize the Platform for User’s personal or commercial use, so long as User is not in breach of this Agreement. User has been made expressly aware, understands, and acknowledges that is considered a breach of this Agreement to use the Plan in any way that is misaligned with the total users paid for under the monthly Fees. The Company has technical measures in place to restrict access to Cargo accounts that are being used by multiple devices at once. In the event that a User is locked out of their Cargo account, they must contact the Company’s customer service team to recover access. The Company reserves the right to terminate this Agreement, without prior notice to the User, at its discretion upon reasonable belief that the User is knowingly misusing their Cargo account access.
In the event that the Company discovers that User is knowingly misusing the Plan beyond the total allowed seats paid for under the monthly Fees, User expressly agrees to pay the total amount that would have been due to the Company, had the User correctly subscribed based on total seats, minus actual Fees paid, for each month that the Plan was used knowingly used in such a manner. For example, if the User purchased a Cargo Pro Plan, but the User has made the Platform available to a colleague, meaning Cargo Teams should have been purchased instead, the total liquidated damages amount would be the current monthly pricing amount for Cargo Teams based on total users utilizing the Platform, minus the monthly pricing amount for Cargo Pro actually paid to the Company, for each month that the Plan was knowingly misused in such a manner. The protections under this provision shall apply to misuse by either individual users or studio users.
The Parties hereto acknowledge and agree that the sums payable under this Agreement above shall constitute liquidated damages and not penalties and are in addition to all other rights of the Company, including the right to sue or pursue injunctive relief. The Parties further acknowledge that (i) the amount of loss or damages likely to be incurred is incapable or is difficult to precisely estimate, (ii) the amounts specified above bear a reasonable relationship to, and are not plainly or grossly disproportionate to, the probable loss likely to be incurred in connection with misuse of the Plan, (iii) one of the reasons for the need for a liquidated damages provision is the uncertainty and cost of litigation regarding the question of actual damages, and (iv) User is able to, and is encouraged to, share the terms of this Agreement with User’s legal counsel prior to purchasing a Plan.
The Parties understand and agree that in the event that the Fees are adjusted at a future date, the Fees in effect at the time of discovery by the Company of misuse by User, even if such amounts are higher than the originally agreed upon Fee amounts, shall apply in determining the proper liquidated damages amount.
INTELLECTUAL PROPERTY RIGHTS
The Platform and all Assets, contents, features, and functionality created or provided by the Company, including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof, are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not reproduce, distribute, modify, publicly display, publicly perform, republish, download, store or transmit any of the material on the Company's Platform, except as follows:
- User may download any individual Assets, or software or plugins required to access the individual Assets offered, for User’s personal or commercial use.
- Users may modify any of the individual Assets offered through the Platform to create wholly new graphic/visual environments for User’s personal or commercial use.
- Computers or digital devices owned and operated by the User personnel may temporarily store copies of such materials in RAM incidental to accessing and viewing those materials.
The User must not:
- Sell, distribute, transfer, or in any other way grant access to the Platform to any third party or to more users than User’s Plan allows for.
- Sell the Assets, duplicates or copies of the Assets, derivatives or modified versions of the Assets, or access to the Assets to any third party.
- Download the Assets to transfer the Assets, whether in their original form or in any modified form, to any third party.
- Modify copies of any materials from the Platform other than for User’s personal or commercial use.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Platform.
- Decompile, reverse engineer, reverse assemble, decipher, or otherwise attempt to discover any programming code or any source code used in or with the Platform or Assets, or otherwise distribute in any way the Platform or Assets other than as specifically permitted in this Agreement.
- Use Cargo Pro (if you will be purchasing a Cargo Pro subscription) in any way to circumvent the user type or amount restrictions described herein. Cargo Pro users found to be supplying their subscription login credentials or other user-specific benefits to any other individual or hiring entity will be subject to immediate termination of their Cargo Pro subscription and access to Cargo Pro features will be discontinued.
- Use Cargo or assets downloaded from Cargo for any “AI Input or Training Related Purposes,” as defined below.
For the purposes of this Agreement, “AI Input or Training Related Purposes” shall be defined as: teaching artificial intelligence to properly interpret data or information and learn from it in order to perform a specific creative task; generative AI; neural networks; deep learning algorithms; or otherwise using machine learning, in order to create new digital assets similar to the Assets for public use, sale, or distribution, or in any other way that may be deemed competitive to the Company and/or Cargo.
If the User prints, copies, modifies, downloads or otherwise uses or provides any external party with access to any part of the Platform in breach of this Agreement, the User’s right to use the Platform will cease immediately and the User must, at the Company’s option, return or destroy any copies of the materials the User has made. No right, title, or interest in or to the Platform or any Assets on the Platform is transferred to the User, and all rights not expressly granted are reserved by the Company. Any use of the Platform not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and other laws.
User may indicate that their intellectual property is made with “KitBash®,” “Cargo®,” and/or “KitBash3D™”. User may include a reference to the Company in any press releases for the intellectual property that relate to Cargo and/or the Assets, and may identify the Company as the provider of Cargo. However, User may not otherwise use “KitBash3D”, “Cargo”, or any other identifier or trademark of the Company in connection with User’s intellectual property, work, or business, or in any URL, product, service, name field or logos created by User, unless provided for in a separately executed agreement between User and Company. User may not use Company’s trademarks, whether registered or unregistered, in any manner that implies that Company endorses or otherwise approves of User’s intellectual property. User’s use of the Company name under this Agreement does not create any right, title or interest in the Company name or any Company trademarks and all goodwill arising from User use inures solely to the benefit of Company.
User agrees to maintain the confidentiality of any proprietary information received by User in connection with this Agreement and/or the Platform, regardless of whether or not the information is marked as confidential, without limitation, any non-public technical and business information (“Confidential Information”) for a period of five (5) years after the termination of User’s Plan access. This section shall not apply to any publicly available or independently developed information or publicly-accessible Assets offered through any free Plan. You agree not to use said Confidential Information for any purpose except as necessary to fulfill your obligations and exercise your rights under this Agreement. You shall protect the secrecy of and avoid disclosure and unauthorized use of the Company's Confidential Information to the same degree that you take to protect your own confidential information and in no event less than reasonable care.
In the event that the User is a studio/entity and not an individual, User shall be responsible for ensuring that all end-users utilizing the seats purchased under the Plan understand and agree to the terms of this Agreement. User shall be held responsible for any liabilities, damages, judgments, awards, losses, costs, expenses or fees related to the unauthorized use of the Assets or the Platform by an end-user, disclosure or misappropriation of Confidential Information by an end-user, or any use of the Assets or Platforms that is in violation of these terms by an end-user. As such, User is highly encouraged to execute a written agreement with terms comparable to those herein with each of its end-users.
INTELLECTUAL PROPERTY CREATED BY USER
The Parties understand and agree that any intellectual property created by the User through use of the Platform by the User (“Intellectual Property”) will be solely owned and controlled by the User. The User agrees that the Company shall have an irrevocable, non-exclusive, fully paid up, worldwide right and license to publish the Intellectual Property, or any portion thereof, for publicity and promotion of the Platform, without the permission of the User. The Company shall have the right to transfer or assign such license to any of its subsidiaries, affiliates, or successors and/or assigns. All rights not expressly granted in this provision or above are reserved to the Company.
COMPANY’S PROMOTIONAL USE
User understands that the Company may highlight the User’s use of the Company’s Platform, the Intellectual Property created in connection with the Plan, and all services provided by the Company under this Agreement for the Company’s professional portfolio, website, in galleries and displays, periodicals, and other media or exhibits for the purpose of recognition of creative excellence or professional advancement, and to be credited with creation of the Platform and all tools in connection with the Platform.
NOTICES TO USER
The Company shall send all invoices and any other documents, information and notices to the User through the email address associated with the User’s account. If User needs to make changes to this email address, User may do so by logging into their account and updating their contact information.
The Company retains the right to increase or decrease the total Fees or otherwise update the terms of this Agreement at any time. In the event of a change to the Fees or the terms of this Agreement, the Company shall provide the User with written notice of such changes at least thirty (30) calendar days prior to such changes taking effect.
ACCESSING THE PLATFORM AND ACCOUNT SECURITY
The Company reserves the right to withdraw or adjust the Plan or the Platform, or any of the Assets the Company provides through the Platform, in its sole discretion without notice. From time to time, the Company may restrict access to some parts of the Platform, or the Platform in their entirety, to users, including the User. The Company will not be liable if, for any reason, all or any part of the Platform is unavailable at any time or for any period.
The User agrees to notify the Company immediately of any unauthorized access to the User’s account or any other breach of security, so that the Company may meet its disclosure obligations to users. Failure to notify the Company immediately upon discovery of a breach is considered a material breach of this Agreement and will result in immediate termination of this Agreement and User’s access to the Platform.
MAINTENANCE OF PLATFORM
The Company routinely monitors the Platforms and will maintain the Platforms in its sole discretion and as the Company determines is necessary. However, THE COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS TO THE PLATFORM WILL BE CORRECTED. User will not receive any specialized support or maintenance services for the Assets downloaded under this Agreement, except as expressly provided in this Agreement or as provided for in a separately executed agreement between User and the Company. See “DISCLAIMERS OF WARRANTIES” below for more information.
DISCLAIMER OF WARRANTIES
User understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet or Cargo will be free of viruses or other destructive code. The User is responsible for implementing sufficient procedures and checkpoints to satisfy User’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Company’s Platform for any reconstruction of any lost data. No data transmission over the Internet can be guaranteed to be 100% safe. Thus, the Company cannot warrant that User information will be absolutely secure. The Company has a variety of safeguards – technical, administrative, and physical – in place to help protect against unauthorized access to, use, or disclosure of electronically-stored and accessed information.
THE PLATFORM IS PROVIDED “AS IS” AND THE COMPANY AND ITS AFFILIATES AND LICENSORS MAKE, AND USER RECEIVE, NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH USER. THE COMPANY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE PLATFORM.THE COMPANY 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 USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO USER’S USE OF THE PLATFORM OR ANY ASSETS OR ITEMS OBTAINED THROUGH THE PLATFORMS OR TO USER’S DOWNLOADING OF ANY ASSETS OR MATERIAL POSTED ON THE PLATFORM, OR ON ANY WEBSITE LINKED TO THE PLATFORM. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE FEDERAL OR STATE LAW.
The Company represents and warrants that the Company has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances and regulations. The Company further represents and warrants that to the best of the Company’s knowledge, the Platform, including tools and Assets, provided by the Company do not infringe the rights of any party, and use of same in connection with the Platform will not violate the rights of any third parties; however, the Company expressly disclaims any warranty in regard to intellectual property infringement.
The User represents and warrants that User has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances, and regulations. User additionally represents and warrants that any Intellectual Property created by User in connection with Cargo shall not subject the Company to any liability whatsoever for infringement or otherwise.
LIMITATION OF LIABILITY
THE TOTAL LIABILITY OF COMPANY AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT FOR DAMAGES WILL NOT EXCEED FIFTY PERCENT (50%) OF THE TOTAL MONTHLY FEES PAID BY USER. IN NO EVENT WILL COMPANY OR ITS AFFILIATES AND LICENSORS BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER COMPANY OR ITS AFFILIATES AND LICENSORS HAVE BEEN ADVISED OF THE RISKS, AS A RESULT OF USER’S USE OF THE PLATFORM OR OF THE ASSETS AVAILABLE THROUGH THE PLATFORM.
User agrees to defend, indemnify and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to any breach by User of this Agreement or its use of the Platform, any use of the Assets, services and products other than as expressly authorized in this Agreement.
There may be export restrictions in User’s location. User may not download, export, or re-export the Assets: (1) into, or to a national or resident of, Cuba, Iraq, Libya, North Korea, Iran, Syria, Sudan, Russia, Republic of Crimea, or any other country to which the United States has embargoed goods, or (2) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By signing or otherwise accepting this Agreement, User is representing and warranting that User is not located in, under the control of, or a national or resident of any such country or on any such list. If we become aware that User is located in, under the control of, or a national or resident of any such country or on any such list, this Agreement will terminate immediately and the Company will revoke access to our Platform and the Assets.
This Agreement is non-exclusive. The Company is free to provide Cargo and any Assets available on the Platform to other parties at the same time that Cargo and the Assets available on the Platform are provided to User.
COOPERATION WITH LAW ENFORCEMENT AND REGULATORY BODIES
The Company has the right to fully cooperate with any law enforcement authorities, regulatory agencies, or court order requesting or directing us to disclose the identity or other information of anyone sharing information with the Company through the Platform. USER WAIVES AND HOLDS HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND/OR ANY OF ITS AFFILIATES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
User understands and expressly agrees that request for delivery of the Platform under this Agreement shall obligate User to pay the Fees under this Agreement, whether or not the User actually chooses to utilize the Platform and its offerings.
In the highly unlikely event that the Platform is unavailable to User for longer than seventy-two (72) consecutive hours in one month, the Company may, in its sole discretion, refund a portion of the Fees to User. However, under no circumstances shall any such proration be required.
The Company may immediately terminate this Agreement, at its sole discretion: (i) upon breach of this Agreement by User; or (ii) User fails to make timely payment of the Fees or any other accrued and outstanding amounts during the Term of this Agreement. Such situations shall be considered situations where the Company may terminate for “Cause.” Additionally, the Company may terminate this Agreement without Cause with seven (7) calendar days’ notice to User.
Cargo Pro or Cargo Teams users (or users of other paid Cargo Plans, if additional Plans are created in the future) can cancel their Plan and downgrade to Cargo Basic or cease using Cargo at any time. If they choose to do so, the refund policies described within the Terms and Conditions at the time of cancellation or downgrade shall apply. If a user downgrades or cancels after the refund window has closed, the requested change will take effect during the next billing cycle. However, when a user upgrades to their Plan, such change will take effect immediately.
WAIVER & SEVERABILITY
No waiver by the Company of any term or condition set forth in this 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 of the Company to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement will continue in full force and effect.
All matters relating to the Platform and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Oregon, without giving effect to any choice or conflict of law provision or rule.
Any legal suit, action or proceeding arising out of, or related to, this Agreement or the Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of Oregon, in each case located in the City of Portland, County of Multnomah. User waives any and all objections to the exercise of jurisdiction over User by such courts and to venue in such courts.
CORRESPONDENCE AND NOTICE
Should you have any questions concerning this Agreement, or if you desire to contact the Company for any reason, please direct all correspondence to firstname.lastname@example.org.