Cargo Subscription Agreement

KitBash3D

Cargo Subscription and End-User License Agreement

Last Modified: April 26, 2022

This Cargo Subscription and End-User License Agreement (the “Agreement”) is a legal agreement between the “Subscriber” accepting this Agreement (also referenced herein as “you” or “your”) and KitBash3D LLC, a California company (“Company”) regarding the subscription 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 is referred to herein as the “Subscription.” Subscriber and the Company are referred to herein individually as a “Party” and collectively as the “Parties.”

WHEREAS, the Company is engaged in the business of creating Assets and software services for use in movies, television, and video games. 

WHEREAS, the Company has created Cargo as a desktop platform for digital creators to access and use the Assets and other subscription services. 

WHEREAS, the Subscriber desires to become a subscriber of Cargo and to use the features and functionality offered by the Company through Cargo.

NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged the Parties agree as follows: 


SERVICES UNDER SUBSCRIPTION

The Company offers the Platform through two (2) different Subscription tiers: (1) Cargo Basic, and (2) Cargo Pro. Subscriber will opt into the Subscription tier of their choice during the registration process.

The current features offered through Cargo Basic and Cargo Pro 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 Subscriber upon any changes to the Terms and Conditions. By agreeing to abide by the terms of this Agreement, Subscriber also agrees to abide by the Terms and Conditions at all times.

The Company may update the features, pricing, or other details of each subscription tier 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 subscribers of any relevant changes. The continued use of the Subscription after such notification will be deemed your acceptance of such changes.

Once Assets are downloaded, Subscriber 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. The Parties understand and acknowledge that this license shall only be revoked in the event that Subscriber breaches this Agreement in any way. In the event that Subscriber’s license to the Assets is revoked, Subscriber shall destroy the Assets in Subscriber’s possession and shall 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 Subscriber through use of the Platform by the Subscriber or that otherwise incorporates any Assets will remain the property of the Subscriber solely, even in the event of revocation. 

Subscriber understands and agrees that access to the Platforms is required for use of the Assets. Termination of the Subscription may render the Assets unusable.


TERM OF AGREEMENT

The term of this Agreement shall commence on the date of acceptance by the Subscriber and shall continue until terminated by either Party (the “Term” of the Agreement). 

 

SUBSCRIPTION FEES

As of the date of this Agreement, fees for the subscription services offered through Cargo (the “Subscription Fees”) are as follows: Cargo Pro is offered at $89 USD per month, whereas Cargo Basic is free ($0 USD). By accepting this Agreement and registering for a Cargo Pro account, you acknowledge and agree to the Subscription Fees that are charged to your payment source. It is the Subscriber’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

Subscriber may utilize the Platform for Subscriber’s personal or commercial use, so long as Subscriber is not in breach of this Agreement. Subscriber has been made expressly aware, understands, and acknowledges that is considered a breach of this Agreement to use the Subscription in any way that is misaligned with the total subscribers paid for under the monthly Subscription 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 Subscriber 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 Subscription, without prior notice to the Subscriber, at its discretion upon reasonable belief that the Subscriber is knowingly misusing their Cargo account access. 

In the event that the Company discovers that Subscriber is knowingly misusing the Subscription beyond the total allowed seats paid for under the monthly Subscription Fees, Subscriber expressly agrees to pay the total amount that would have been due to the Company, had the Subscriber correctly subscribed based on total seats, minus actual Subscription Fees paid, for each month that the Subscription was used knowingly used in such a manner. For example, if the Subscriber purchased a Cargo Pro subscription ($89.00), but the Subscriber has made the Subscription available to a small team of 5 users, meaning a 5 seat Studio License should have been purchased instead ($599.00 total), the total liquidated damages amount would be $510.00 USD ($599.00 - $89.00 USD) for each month that the Subscription was knowingly misused in such a manner. The protections under this provision shall apply to misuse by either individual users or studio users. All specific numeric amounts listed above are for illustrative purposes and are subject to change in the Company’s sole discretion. 


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 Subscription, (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) Subscriber is able to, and is encouraged to, share the terms of this Agreement with Subscriber’s legal counsel prior to purchasing a Subscription. 

The Parties understand and agree that in the event that the Subscription Fees are adjusted at a future date, the Subscription Fees in effect at the time of discovery by the Company of misuse by Subscriber 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:

  • Subscriber may download any individual Assets, or software or plugins required to access the individual Assets offered, for Subscriber’s personal or commercial use. 

  • Subscribers may modify any of the individual Assets offered through the Platform to create wholly new graphic/visual environments for Subscriber’s personal or commercial use.

  • Computers or digital devices owned and operated by the Subscriber personnel may temporarily store copies of such materials in RAM incidental to accessing and viewing those materials.

  • Computers or digital devices owned and operated by the Subscriber may store files that are automatically cached by a web browser for display enhancement purposes.

The Subscriber must not:

  • Sell, distribute, transfer, or in any other way grant access to the Platform to any third party or to more users than Subscriber’s Subscription 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 Subscriber’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.

If the Subscriber 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 Subscriber’s right to use the Platform will cease immediately and the Subscriber must, at the Company’s option, return or destroy any copies of the materials the Subscriber has made. No right, title, or interest in or to the Platform or any Assets on the Platform is transferred to the Subscriber, 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.

 

TRADEMARKS; PUBLICITY

Subscriber may indicate that their intellectual property is made with “KitBash,” “Cargo,” and/or KitBash3D.” Subscriber 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, Subscriber may not otherwise use “KitBash3D”, “Cargo”, or any other identifier or trademark of the Company in connection with Subscriber’s intellectual property, work, or business, or in any URL, product, service, name field or logos created by Subscriber, unless provided for in a separately executed agreement between Subscriber and Company. Subscriber may not use Company’s trademarks, whether registered or unregistered, in any manner that implies that Company endorses or otherwise approves of Subscriber’s intellectual property. Subscriber’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 Subscriber use inures solely to the benefit of Company.


CONFIDENTIALITY

Subscriber agrees to maintain the confidentiality of any proprietary information received by Subscriber in connection with this Agreement and/or the Subscription, regardless of whether or not the information is marked as confidential, without limitation, the Assets and any non-public technical and business information (“Confidential Information”) for a period of five (5) years after the termination of Subscriber’s Subscription. This section shall not apply to any publicly available or independently developed information or any Assets offered through the free subscription tier. 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 Subscriber is a studio/entity and not an individual, Subscriber shall be responsible for ensuring that all end-users utilizing the seats purchased under the Subscription understand and agree to the terms of this Agreement. Subscriber 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, Subscriber is highly encouraged to execute a written agreement with terms comparable to those herein with each of its end-users.


INTELLECTUAL PROPERTY CREATED BY SUBSCRIBER

The Parties understand and agree that any intellectual property created by the Subscriber through use of the Platform by the Subscriber (“Intellectual Property”) will be solely owned and controlled by the Subscriber. The Subscriber 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 Subscriber. 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

Subscriber understands that the Company may highlight the Subscriber’s use of the Company’s Platform, the Intellectual Property created in connection with the Subscription, 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 SUBSCRIBER

The Company shall send all invoices and any other documents, information and notices to the Subscriber through the email address associated with the Subscriber’s account. If Subscriber needs to make changes to this email address, Subscriber may do so by logging into their account and updating their contact information. 

The Company retains the right to increase or decrease the total Subscription Fees or otherwise update the terms of this Agreement at any time. In the event of a change to the Subscription Fees or the terms of this Agreement, the Company shall provide the Subscriber 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 Subscription or the Platform, or any of the Assets the Company provides through the Subscription, 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 Subscriber. 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. 

To utilize the Subscription, or some of the resources they offer, the Subscriber may be asked to provide certain registration details or other information to the Company at a later date. Details requested include, but are not limited to, first and last name of the Subscriber, contact email address, phone number, physical address, and other information as applicable. It is a condition of the Subscriber’s use of the Subscription that all the information the Subscriber provides to the Company and/or on the Platform is correct, current, truthful, and complete. The Subscriber agrees that all information it provides to utilize the Subscription or otherwise, including but not limited to through the use of any interactive features on the Platform, is governed by the Company's Privacy Policy found at https://kitbash3d.com/pages/privacy-policy and the Subscriber consents to all actions the Company may take with respect to the Subscriber’s information, consistent with the Company's Privacy Policy.

The Subscriber agrees to notify the Company immediately of any unauthorized access to the Subscriber’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 the Subscription. 


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. Subscriber 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 Subscriber and the Company. See “DISCLAIMERS OF WARRANTIES” below for more information. 


DISCLAIMER OF WARRANTIES

Subscriber 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 Subscriber is responsible for implementing sufficient procedures and checkpoints to satisfy Subscriber’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 Subscriber 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 SUBSCRIBER RECEIVE, NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH SUBSCRIBER. 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 SUBSCRIBER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO SUBSCRIBER’S USE OF THE PLATFORM OR ANY ASSETS OR ITEMS OBTAINED THROUGH THE PLATFORMS OR TO SUBSCRIBER’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 Subscriber represents and warrants that Subscriber 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. Subscriber additionally represents and warrants that any Intellectual Property created by Subscriber 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 SUBSCRIPTION FEES PAID BY SUBSCRIBER. 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 SUBSCRIBER’S USE OF THE PLATFORM OR OF THE ASSETS AVAILABLE THROUGH THE PLATFORM.


INDEMNIFICATION

Subscriber 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 Subscriber of this Agreement or its use of the Subscription, any use of the Assets, services and products other than as expressly authorized in this Agreement.


GEOGRAPHIC RESTRICTIONS

The Company is based in the United States of America. The Company makes no express claims that the Platform or any Assets are accessible or appropriate outside of the United States. Access to the Platform may not be legal by certain persons or in certain countries. It is the Subscriber’s responsibility to ensure that use of the Platform or any Assets offered is appropriate, based on the Subscriber’s location. Subscriber is highly encouraged to read and become familiarized with our Privacy Policy found at https://kitbash3d.com/pages/privacy-policy before signing or otherwise accepting this Agreement. 


EXPORT RESTRICTIONS

There may be export restrictions in Subscriber’s location. Subscriber 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, Subscriber is representing and warranting that Subscriber 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 Subscriber 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. 


NON-EXCLUSIVE AGREEMENT

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 Subscriber. 


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. SUBSCRIBER 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.


SATISFACTION

Subscriber understands and expressly agrees that request for delivery of the Subscription under this Agreement shall obligate Subscriber to pay the Subscription Fees under this Agreement, whether or not the Subscriber actually chooses to utilize the Subscription and its offerings. 

In the highly unlikely event that the Platform is unavailable to subscribers for longer than seventy-two (72) consecutive hours in one month, the Company may, in its sole discretion, refund a portion of the Subscription Fees to subscribers. However, under no circumstances shall any such proration be required.


TERMINATION

The Company may immediately terminate this Agreement, at its sole discretion: (i) upon breach of this Agreement by Subscriber; or (ii) Subscriber fails to make timely payment of the Subscription Fees or any other accrued and outstanding fees two (2) times 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 Subscriber.

Cargo Pro subscribers (or users of other paid Cargo plans) 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. 


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. 


GOVERNING LAW 

All matters relating to the Subscription 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 Subscription 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. Subscriber waives any and all objections to the exercise of jurisdiction over Subscriber by such courts and to venue in such courts.


ENTIRE AGREEMENT

This Agreement, the Company’s Privacy Policy found at https://kitbash3d.com/pages/privacy-policy, and any additional terms provided to Subscriber by the Company that reference this Agreement, constitute the sole and entire agreement between the Parties with respect to the Subscription, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Subscription.


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 info@kitbash3d.com.