General Terms of Service
These terms, hereinafter “General Terms and Conditions”, together with any Additional Terms, always apply to every offer of Act-3D B.V. The company Act-3D B.V. is located at Hoofdstraat 10, 2171AT in Sassenheim and is registered with the Chamber of Commerce under the registration number 27343208. In these General Terms and Conditions, Act-3D B.V. is referred to as "Act-3D" and the (potential) contracting Party to which this offer is addressed as "Customer", unless otherwise indicated. The Customer and Act-3D may be referred to jointly as "Parties" or separately as "Party". The agreement that the parties enter into with each other including all applicable Additional Terms is also referred to as "Subscription" in these General Terms and Conditions. "Services" in these General Terms and Conditions means the services provided by the Customer under the Subscription.
1.1 Choice of Law and Contracting Entity
Regardless of where Customer reside, Customer’s relationship is with Act-3D B.V., a Dutch limited company, and the General Terms and Conditions are governed by the law of The Netherlands and any international law or trade restriction the Dutch Government imposes on Act-3D B.V
1.2. Additional Terms
Our Services are licensed and may also be subject to one or more of the additional terms within the policies and agreements below (“Additional Terms”). If there is any conflict between the different terms then the following order of precedence shall apply, with terms and conditions mentioned earlier ranking above terms and conditions mentioned later:
additional written and signed agreements, other than as listed below;
the offer, in any form provided;
the Privacy Statement;
these General Terms and Conditions.
Customer allows Act-3D to require end users who intend to use the service on behalf of Customer to agree to the End User License Agreement before they can use the service. Act-3D may deny access to the service in the case that end user does not agree to the EULA.
If any provision of these General Terms and Conditions or any Additional Terms is held invalid or unenforceable for any reason, the other provisions of the General Terms and any Additional Terms will continue in full force and effect. Our failure to enforce or exercise any provision of the General Terms and Conditions is not a waiver of that provision.
Customer may not assign or otherwise transfer the General Terms and Conditions or Customer’s rights and obligations under the General Terms and Conditions, in whole or in part, without our written consent, and any such attempt will be void. Act-3D may transfer our rights under the General Terms and Conditions to a third party.
2.1 Payment and pricing
As compensation for the granted license to use the Service, Customer is required to pay the agreed upon price as stated on the Website or in My Account.
Licenses are provided on a subscription basis or in some specific cases as a one off fee. Fees are prepaid by Customer to Act-3D or to a Lumion Reseller. All prices are in euros or in some specific regions in US Dollars and exclusive of Taxes.
Act-3D or Lumion reseller will invoice Customer for the license fees up front per (payment) term. All payments provided for the subscriptions shall be made upfront before the License is activated. Act-3D may invoice electronically.
If Customer does not timely fulfill its payment obligation(s), Supplier shall notify Customer of the late payment.
If Customer does not pay or does not pay on time even after the demand Act-3D has the right to suspend its obligations under the Subscription, until Customer and/or End User has fulfilled its payment obligation. Suspension may include making the Service inaccessible to Customer and/or End User.
If Act-3D has not received payment after the due date, and without prejudice to any other rights and remedies of Act-3D, the statutory commercial interest, as referred to in Section 6:119a of the Dutch Civil Code, shall accrue on the outstanding amount. Furthermore, Customer shall be obliged to pay all the judicial and extrajudicial collection costs, including the costs of lawyers, bailiffs, and debt-collection agencies.
Without prejudice to all other rights, Act-3D has the right to suspend the Subscription after the expiration date, until Customer and/or End User has fulfilled its payment obligation.
2.2 Price adjustments
Act-3D is entitled to adjust its (license) fee(s) and prices. The Customer will be informed by email of upcoming adjustments at least forty five (45) days in advance. In the event of a price increase, the Customer has the right to terminate the Subscription by giving written notice to Act-3D within thirty (30) days after the price increase is announced. No refund shall be given when the Subscription has been canceled.
Notwithstanding the foregoing, Act-3D can increase its prices without prior announcement and without a right of the Customer to terminate Subscription in the event Customer adds additional Seats during the subscription term.
2.3 Seats adjustments
In case the Customer desires more floating licenses (hereinafter "Seats"), the Customer can purchase additional Seats via the online customer portal of Act-3D. Act-3D will endeavor to make the additional Seats available as soon as possible.
Additional seats purchased during a subscription term can be purchased at a prorated price for the remaining subscription term.
The Customer can downgrade seats for the upcoming subscription term. The Customer cannot downgrade the number of Seats during the subscription term.
If an additional Seat has been bought with a discount, that discount will only apply for that specific term and/or seat. For the following terms and/or existing seats standard pricing will apply.
2.5 Auto renew
When buying from the Website or Lumion My Account, a Lumion subscription or an extra seat, auto renewal for Customer’s next payment term is enabled. Auto renewal can be disabled manually at any time from Lumion My Account.
3.1 Intellectual property and license
Subject to Customer’s compliance with the General Terms and Conditions and the law, Customer may access and use the Services. Act-3D (and our licensors) remain the sole owner of all right, title, and interest in the Services. Act-3D do not grant Customer any rights to any form of intellectual property rights, including but not limited to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services. Act-3D reserve all rights not granted under the General Terms and Conditions.
Customer shall not perform any acts that may infringe on the intellectual property rights of Act-3D and/or its licensors, including but not limited to disclosing and/or reproducing, in whole or in part, without permission, anything referred to in this paragraph. The Customer acknowledges and accepts that any unauthorized use or acts violate the Agreement and applicable laws.
Act 3D provides Customer and/or Customer’s end users a non-transferable, non perpetual and non-exclusive license, to use the agreed Service for the duration of the Subscription.
When the Services provide storage, Act-3D recommend that Customer also back up Customer’s Content elsewhere regularly. Act-3D may create reasonable technical limits on file size, storage space, processing capacity, and other technical limits.. At the end of Customer’s license term, Act-3D will use commercially reasonable efforts to allow Customer to transition Customer’s Content out of the Services. The transition must be completed within 30 days from the date of the termination or expiration of Customer’s license term. At the end of this 30-day transition period, Act-3D reserve the right to delete Customer’s Content.
“Content” means any material, such as (but not exclusively limited to) audio files, video files, Lumion project files, electronic documents, text, or images, that Customer uploads and imports into the Services in connection with Customer’s use of the Services. For example, when using our Customer Care Service, Customer may be asked to upload Customer’s project and other files in order to diagnose an issue. Uploading files to our services for the purposes of Customer Care or Lumion Community participation is voluntary.
Customer retains all (intellectual) rights and ownership of Customer’s Content. Act-3D does not claim any ownership rights to Customer’s Content.
4.3 Customer’s Content
We require certain licenses from Customer to Customer’s Content in order to operate and enable the Services and Software. When Customer upload Content to the Services and Software, Customer grant us a non-exclusive, worldwide, royalty-free License to use, display and store Customer’s content. This license is only for the purpose of operating or improving the Services.
4.4 Sharing Customer’s Content
Some Services and Software may provide features that allow Customer to Share Customer’s Content with Act-3D’s Customer Support, IT, and Sales departments. “Share” means to email, post, transmit, upload, or otherwise make available through Customer’s use of the Services and Software.
(b) Level of Access
Access to Content exchanged between customers and Act-3D within the Customer Care Services is restricted and remains solely between each specific customer and Act-3D.
(c) Non-Disclosure of Confidential information
All communication and Content shared between Act-3D and a single customer within Act-3D’s Customer Care services shall remain strictly confidential. Act-3D commits to never disclose, share, sell, discuss or otherwise transfer Customer’s Content to third parties. A customer can request the deletion of all Content stored within our Customer Care services at any time in accordance with GDPR.
4.5 Sharing Customer’s Content with the Lumion Community
Some Services and Software may provide features that allow Customer to Share Customer’s Content with other Lumion users or the public, such as through the Lumion Community. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through Customer’s use of the Services and Software. Other users may use, copy, modify, or re-share Customer’s Content in many ways. Please carefully consider what Customer choose to Share or make public as Customer are responsible for the Content that Customer Share.
(b) Level of Access
We do not monitor or control what others do with Customer’s Content. Customer are responsible for determining the limitations that are placed on Customer’s Content and for applying the appropriate level of access to Customer’s Content. It is Customer’s responsibility to let other users know how Customer’s Content may be shared.
(c) Comments and Interaction
The Services and Software may allow Customer to comment on Content and interact with other users through social media mechanics such as upvoting and downvoting other users’ content. Comments are not anonymous, and may be viewed by other users. Customer’s comments may be deleted by Customer, other users, or us.
Uploading Customer’s content to our Services may give Customer the option to agree to allow Act-3D to promote Customer’s work in marketing and community activities such as official social media posts, blog articles and promotional videos. In every such case, Act-3D will display the information Customer provide in the “Credits” field when agreeing to allow Customer’s Content to be promoted by us.
Customer have no obligation to provide us with ideas, suggestions, or proposals (Feedback). If Customer submit Feedback to us however, then Customer grant us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
Customer are responsible for all activity that occurs via Customer’s account. Please notify Customer Care immediately if Customer become aware of any unauthorized use of Customer’s account. Customer may not (a) Share Customer’s account information; or (b) use another person’s account. As is the case with Lumion licenses, if an account is found to be compromised and/or is accessible by multiple users, Act-3D reserve the right to suspend the account pending an investigation which would involve proof of ownership and account security verification.
By uploading Customer’s Content to the Services, Customer agree that Customer have: (a) all necessary licenses and permissions to use and Share Customer’s Content; and (b) the rights necessary to grant the licenses in the General Terms and Conditions.
Customer will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to Customer’s Content, Customer’s use of the Services, or Customer’s violation of the General Terms and Conditions.
6.3. End Users
Customer is, in addition to end user, responsible for any breach of the above warranty and indemnification provisions for actions of end users using the service on behalf of Customer.
7.1 commercially reasonable efforts
Unless stated in the Additional Terms, the Services are provided “as-is” and based on “commercially reasonable efforts”. Act-3D will endeavor to keep the Service up-to-date but cannot provide any guarantees as to the functioning to the Service other than those provided in this article below.
a. that the Service substantially operates as described in the Documentation, which may be amended by Act-3D from time to time;
b. that the Service, to the best of its knowledge, does not contain any viruses, backdoors or malicious routines;
c. that the Service does not infringe upon third-party rights (including intellectual property rights), provided that the Service is used in accordance with this General Terms and Conditions and the Documentation; and
d. it will use its best efforts to investigate any reported bugs as soon as is reasonably practical and to repair such bug or suggest a workaround (if possible) within a reasonable period of time, provided however that Act-3D may postpone resolution to the next update or upgrade if the bug is considered non-critical.
7.2 Content on servers
If Customer post Customer’s Content on our servers to publicly Share through the Services, Act-3D are not responsible for: (a) any loss, corruption, or damage to Customer’s Content; (b) the deletion of Content by anyone other than Act-3D; or (c) the inclusion of Customer’s Content by third parties on other websites or other media.
Act-3D's liability for any damages or other claims incurred by Customer as a result of an attributable failure by Act-3D to perform its obligations (including guarantees) under the Subscription, as a result of an unlawful act by Act-3D, its employees or third parties engaged by it, or on any other ground, is limited per damage causing event, where a series of related events counts as one event, to an amount equal to the amounts Act-3D received from the Customer (excluding VAT) under the Subscription in the six (6) months preceding the damaging event. However, the total amount to be paid for direct damage can never exceed €1.000,- per event or €3.000.- per year.
8.2 Indirect damage
Without prejudice to the foregoing, Act-3D is expressly not liable for indirect damage suffered by the Customer. For the purposes of the Subscription, indirect damages shall be understood by the Parties to mean only
a) lost sales or profits;
b) missed savings;
c) damages for delay;
d) consequential damages;
e) diminished goodwill; or
f) damages resulting from business interruption.
8.3. Written notice
In the event of an attributable failure to perform the Subscription, Act-3D shall only be liable if the Customer immediately and properly gives Act-3D notice of default in writing, granting Act-3D a reasonable period of time to cure the failure, and Act-3D continues to fail imputably even after that period has expired.
Act-3D shall ensure that it has adequate insurance throughout the term of the General Terms and Conditions to cover the risks arising from the Subscription.
8.5. limitation or exclusion
Any limitation or exclusion of liability agreed between the parties shall not apply if and insofar as
a) the damage is the result of intent or deliberate recklessness on the part of the management of the party causing the damage;
b) the damage is the result of death or bodily injury; or
c) the limitation or exclusion would otherwise be in violation of applicable laws and regulations.
8.6. Force majeure
Act-3D will not be obliged to perform the Subscription if performance is prevented as a result of force majeure.
The parties will in any case consider the following to be force majeure, without limitation: fire, floods, strikes, power failures, telecommunications infrastructure failures, force majeure on the part of Act-3D's own suppliers, network attacks, import and export impediments, war and terror. Any liquidity problems on the Customer's part do not qualify as force majeure.
To the extent that Act-3D had already fulfilled part of the Subscription by the time the force majeure situation arose or will be able to fulfil part of the Subscription, and such partial fulfilment can be ascribed an independent value, Act-3D is entitled to invoice for such fulfilment separately.
In the event of force majeure, Act-3D can suspend the performance of the Subscription for as long as the situation continues. If the situation lasts longer than 3 months, both parties will be entitled to terminate the the Subscription in writing, without any obligation to pay the other Party compensation.
The Parties will treat as confidential the information they provide to each other before, during or after the performance of the Subscription if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential. The Parties also impose this obligation on their employees and on the third parties engaged by them for the performance of the General Terms and Conditions. These provisions continue to apply after the General Terms and Conditions ends for any reason whatsoever and for as long as the disclosing Party has the right to invoke the confidential nature of the information.
Each Party shall use the same degree of care in protecting the confidential information of the disclosing Party as it uses in protecting its own confidential information, but in no event less than reasonable care.
This article shall not apply to any information which:
is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in breach of the General Terms and Conditions;
was within the receiving Party's possession prior to its disclosure to it by or on behalf of the disclosing Party;
becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party not under obligation to keep such information confidential; or is developed independently by the receiving Party.
In the event that a receiving Party becomes legally compelled to disclose any confidential information provided pursuant to the General Terms and Conditions, such receiving Party shall provide the disclosing Party with prompt written notice so that such disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of the General Terms and Conditions insofar as permitted by law.
Any confidential information provided hereunder shall remain the exclusive property of the disclosing Party. Promptly after the expiration or termination of the General Terms and Conditions for any reason, each receiving Party shall deliver to each disclosing Party all originals and copies of any material in any form containing or representing the confidential information in its possession or shall destroy the same at the request of the disclosing Party relative to such confidential information.
Act-3D always reserves the right to use the knowledge obtained by the performance of the General Terms and Conditions for other customers to the extent this does not involve confidential information of the Customer.
10.1 The General Terms and Conditions shall enter into force when the Customer purchases a license for the Service and shall remain valid for the duration of the Subscription Term. The Customer is expressly not entitled to terminate the General Terms and Conditions in the interim, unless if explicitly stated otherwise in this General Terms and Conditions.
10.2 Customer may terminate the SubscriptionCustomer may also request the deletion of all Customer’s account and personal data. Termination of Customer’s account does not relieve Customer of any obligation to pay any outstanding fees.
10.3 Notwithstanding the foregoing, Act-3D may immediately terminate the Subscription by providing a written notice to the Customer, without the requirement for notice of default or judicial intervention:
a) if the other Party has been granted suspension of payments, whether provisionally or not;
b) if the other Party is declared bankrupt; or
c) if the other Party’s company is dissolved or terminated.
10.4 Without prejudice to any other rights and remedies hereunder, Act-3D shall be entitled to terminate or rescind the Subscription if the Customer commit a breach of any of its obligations under these General Terms and Conditions and such breach is irremediable or – if such breach is remediable – the Customer fails to remedy that breach within a period of thirty (30) days after being notified in writing of the breach by Act-3D.
10.5 The termination of this Subscription shall not relieve either Party of the obligation to pay any fees accrued or payable to the other Party prior to the date on which the Subscription will terminate.
Act-3D do not review all content uploaded to the Services, but Act-3D may use available technologies, vendors, or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
We may access or disclose information about Customer or Customer’s use of the Services: (a) when it is required by law (such as when Act-3D receive a valid subpoena or search warrant); (b) to respond to Customer’s requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
12.1 Updates to the General Terms and Additional Terms
We may modify these General Terms and any Additional Terms to reflect changes to the law or changes to our Services. Customer should look at the General Terms and Conditions regularly. Act-3D will post notice of modifications to these General Terms and Additional Terms. By continuing to use or access the Services after the revisions are in effect, Customer agree to be bound by the revised Terms.
12.2. Updates to the Services
We may modify, update, or discontinue the Services (including any portions or features) at any time, without liability to Customer or anyone else. If Act-3D discontinue the Services in its entirety, Act-3D will also allow Customer a reasonable time to download Customer’s Content.
Web-pages describing the Services are accessible worldwide, but this does not mean all Services or service features are available in Customer’s country or that user-generated content available via the Services is legal or available in Customer’s country. Access to certain Services (or certain Service features, Sample Files or Content Files) in certain countries may be blocked by us or foreign governments. It is Customer’s responsibility to make sure Customer’s use of the Services is legal or available where Customer use them. Services are not available in all languages.
13.1 Law and jurisdiction
Dutch law applies to this General Terms and Conditions. Unless dictated otherwise by mandatory law, all disputes arising in connection with this General Terms and Conditions shall be brought before the competent Dutch court for the principal place of business of Act-3D.
A finding that any particular provision of this General Terms and Conditions is legally void shall not affect the validity of the entire General Terms and Conditions. In such a case the Parties shall determine a replacement provision that is legally valid and approximates the intent of the offending provision as much as possible.
Act-3D may assign its rights and obligations under this General Terms and Conditions to a third party that acquires the relevant business or the copyrights to Act-3D from her.
13.2 Notice to Customer
We may notify Customer by email, postal mail, postings within the Services, or other legally accepted means.
MyLumion is a functionality which allows projects to be uploaded from Lumion and stored on a ‘MyLumion’ online domain. Certain conditions apply to this functionality.
1. MyLumion is supplied on a ‘best effort’ basis, meaning that MyLumion project data is backed up on multiple servers but no specific performance guarantees can be provided for the following reasons:
a) Availability depends on services provided by the relevant internet storage operators. The of the functionality is determined by these providers and is less than 100%.
b) In countries or regions with restricted or unreliable internet access, the MyLumion website domain might not be accessible.
2. Storage time for projects on MyLumion is a minimum of 1 year, from the time the MyLumion project was created.
3. MyLumion is provided on a ‘fair use’ basis. This means that a maximum of 10 panorama projects and 10 image projects can be in use at any one time. It also means that if more projects are uploaded, the older projects (both Panorama and Image projects) will be removed automatically from the relevant MyLumion account.
4. The usage data of projects is logged in a Lumion database and may be used for usage analysis reasons. Projects are available via a randomly generated unique link.
5. Projects are not password protected.
13.4 Open street maps (OSM) beta functionality
Act-3D has made a BETA version of Open Street Maps (OSM) functionality available since Lumion version 7.0. This makes use of the online 'Open Street Maps' service which is provided by a third party, which is independent of Lumion or ACT-3D. As such, the functionality is dependent on the service and data provided by the operators of the Open Street Maps service. The BETA status means the OSM functionality in Lumion is still under development. This Agreement offers 'as is' use of OSM free of charge. Act-3D offers no support and accepts no liability in any form regarding the use of OSM. Act-3D may discontinue or change the OSM project at any time without any obligation to compensate license holders.