Terms & Conditions

Encube Terms and Conditions

1. GENERAL

1.1 General information about these terms and conditions of use

These terms and conditions (the “Terms”) set out the terms and conditions on which Customer is permitted to use the Functions (see definitions under section Definitions) provided by Encube Technologies AB (Reg. No. 559343-6909) or any of its affiliates (“Encube”, “us”, “our” or “we”).

By purchasing and/or using the Functions, Customer confirms that Customer accepts these Terms and agrees to comply with them.

We may modify these Terms at any time. Customer and its Authorized Users are responsible for understanding the Terms that apply when using the Functions.

If Customer has entered into a separate service agreement, separate pricing documentation, quote, or other terms of service (collectively “Terms of Service”) with us regarding such Customer’s access to and use of the Functions, Customer’s access to the Functions under these Terms depends on and is subject to the continued validity of such Terms of Service. In the event of any inconsistency between these Terms and other applicable documents, the following order of precedence shall apply: (a) the Data Processing Agreement shall prevail over all other documents with respect to the processing of personal data; (b) the Terms of Service shall prevail over these Terms; and (c) these Terms shall prevail over the Service Level Agreement.

1.2 Other applicable terms

These Terms refer to the following additional terms and policies in each case as applicable from time to time, which also apply to Customer’s use of the Functions:

Our Privacy Policy (www.getencube.com/privacy-policy), which informs about how we use personal data.

Our Cookie Policy (www.getencube.com/cookie-policy), which sets out information about the cookies on our Site.

Our Data Processing Agreement, attached hereto as Appendix A, which is entered into between Encube and Customer and sets out our processing of personal data on behalf of Customer.

Our Service Level Agreement, attached hereto as Appendix B, which is entered into between Encube and Customer.

2. DEFINITIONS

Unless otherwise stated or required by the context, the following terms used in this Agreement, have the meanings set out below, and the singular form (where appropriate) shall include the plural form and vice versa:

“Account” means the account that Customer or its Authorized User register and create on the Site in accordance with the Terms.

“Authorized User” means an individual officer, director, employee, contractor of Customer the number of which is approved by Encube in accordance with the Terms of Service.

“Content” means files and other information, including but not limited to, CAD, meshes, files, drawings, Product Manufacturing Information (PMI), Geometric Dimensioning and Tolerancing (GD&T), and excel spreadsheets and for the avoidance of doubt does not include Aggregated Data or Derived Data.

“Customer” means the entity that uses the Functions and which is then bound by these Terms.

“Functions” means the Service, the Site, the Account, the Encube platform and any algorithms, AI models, schemas, encodings, proprietary computational geometry analysis/algorithms included in the Encube platform, and other related services provided by us to Customer.

“Party(ies)” means Encube and Customer.

“Site” means our website (getencube.com).

“Third Party Software” means any software, applications, or digital content provided by third parties that may be integrated with or accessible through the Functions.

3. FEES AND PAYMENT

Payment terms and fees for use of the Functions will be specified in the Terms of Service. Customer is responsible for all costs and payments associated with Customer’s and its Authorized User’s use of the Functions.

Unless otherwise agreed in the Terms of Service, all fees payable to Encube shall be due and payable in the currency indicated on the respective invoice within thirty (30) days of the date of the respective invoice. All fees payable hereunder are strictly non-cancellable and non-refundable under these Terms.

If any fees or expenses are not paid when due, interest shall accrue on the overdue amount at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment is received in full. Such interest shall compound monthly. In addition to interest charges, we reserve the right to charge reasonable administrative fees for processing overdue accounts and to suspend or terminate Customer’s access to the Functions until all outstanding amounts, including accrued interest, are paid in full. Customer may not offset or hold back any amount against fees owed by it in relation to Encube.

Encube reserves the right to update the fees charged hereunder, applicable on the coming Renewal Term, by giving at least 45 days’ notice.

4. THE SERVICE AND THE FUNCTIONS

4.1 Description of the Service

Encube provides the website www.getencube.com and associated applications therein, which include engineering software and similar digital products and services with interactive functions to work with 2D and 3D data for engineering & hardware development and similar purposes (the “Service”). More information about the Service and the Functions can be found on the Site.

To be able to use the Functions, adequate internet access is required.

We reserve the right to change and modify the Functions and its content at any time.

4.2 Setting up an Account

To access the Functions, Customer must create an Account. Once an Account has been created and approved by Encube and other instructions have been followed, the Functions will be available on the Site. Customer agrees to provide correct and sufficient information when setting up Customer’s Account.

Customer must keep Customer’s and its Authorized User’s Account credentials secure at all times. Customer may not transfer the Account to another person or share Account data with third parties. If Customer suspects that Customer’s Account or credentials have been or are being used by an unauthorized third party, Customer must contact us immediately using our Contact Information.

4.3 Use of the Functions

When Customer uses the Functions, Customer must always comply with all applicable laws and regulations and these Terms. Customer may only access the Functions through interfaces provided by us and as otherwise expressly authorised under these Terms. Customer may not use the Functions in a manner contrary to our rights and interests or those of any third party. Customer agrees to comply with all instructions and recommendations provided by us.

Customer is responsible for all activities that occur under Customer’s Account and for each Authorized User’s compliance with the terms of these Terms. All Authorized Users shall comply with these Terms.

Customer also agrees not to:

• defame, abuse, harass, threaten, or otherwise violate the legal rights of any third party or us;
• publish, post or - in any other way express, any material or information that is inappropriate - defamatory, infringing, obscene, pornographic, racist, terrorist, politically slanted, indecent or unlawful;
• contribute to destructive activities such as dissemination of viruses, spam or any other activity that might harm us or the Functions in any way;
• reverse engineer, decompile, or disassemble the Functions;
• tamper with, attempt to gain unauthorized access to, modify, reverse engineer, hack, repair or otherwise adjust any of our material, hardware, source codes or information for any purposes;
• monitor the Functions’ availability, performance or functionality for any competitive purpose, meaning, for example that Customer agrees not to access the Functions for the purpose of developing or operating a competitive product or service or copying the Functions’ features or user interface; or
• resell, lend, lease, rent or in any way redistribute the Functions or results generated on the Functions or use the Functions in order to create a competing service or product.

We reserve the right decline or suspend Customer’s access to our Functions in the event that Customer has or if we suspect Customer of having provided us with untrue, inaccurate, not current or incomplete information when accessing or using the Functions. We may also decline or suspend Customer access to use the Functions if Customer or any of its Authorized Users have, in our reasonable opinion, failed to comply with any of the provisions of these Terms or applicable law, or if Customer’s organisation has failed to comply with any of the provisions of the Terms of Service or is late with any payment.

4.4 Content

The Functions allow Customer to upload and store Content. Customer is responsible for all actions taken by the Customer and its Authorized Users or in Customer’s name including in respect to Content.

By uploading and storing Content to the Functions, Customer warrants that Customer: (a) has the necessary rights to the uploaded Content; or (b) has permission to use the Content such that the Content or Customer’s use of it does not contravene applicable law, agreement or regulation. We will not supervise whether any Content is lawfully uploaded or distributed through the Functions. We take no responsibility for the validity or quality of Content provided by Customer.

We are not liable for any loss of Content and advise Customer to maintain Customer’s own backup copy.

Artificial intelligence and machine learning are rapidly evolving fields of technology. Customer acknowledges that Content generated through the Functions may not be unique, and other users may receive similar content. Customer further acknowledges that the use of the Functions may result in incorrect output Content. Customer is solely responsible for all use of the Content and output Content generated through Customer’s use of the Functions and for evaluating its accuracy and appropriateness for Customer’s use case, including by using human review of the output Content.

We will only use Customer’s Content as necessary to provide Customer with the Functions, comply with applicable law, enforce our policies, and prevent abuse.

We reserve the right to remove any Content that, in our opinion, does not comply with these Terms.

4.5 Other obligations when using the Functions

Uploading weapons or parts subject to export control regulations such as ITAR, EAR beyond EAR99, or EU Dual Use is a violation of these Terms unless otherwise agreed in writing. Customer shall ensure that Customer’s use of the Functions complies with all applicable export control, customs, and foreign trade regulations and shall obtain all necessary export licenses.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 Ownership of the Functions and our intellectual property rights

The Functions and any developments, derivatives or improvements thereof are owned or licensed by us and there is no transfer of ownership in connection with the Services or otherwise. The Functions and any related information, including all copyrights, trademarks, trade names, logos, and other intellectual property rights held and used by us as well as those presented in the Functions (including titles, graphics, icons, scripts, source codes, AI models, schemas, encodings, proprietary computational geometry analysis/algorithms etc.) are and will remain our property or third party licensors’ property and must not be reproduced, distributed, sold, used, modified, copied, or used (in whole or in part).

All statutory and property rights to the Functions are retained by us and such third parties who hold legitimate rights in Third Party Software. For Third Party Software, we represent and warrant that to our best knowledge, we have made commercially reasonable efforts to ensure we have the right to grant the rights of use to Customer under these Terms. However, Customer may be required to take out licenses directly with the Third Party Software provider.

We include provisions in the contracts with Third Party Software providers to ensure implementation of zero data retention policies contractually prohibiting storage, model training, or retention of Customer’s Content beyond what is necessary to provide the Functions.

It is Customer’s responsibility to make arrangements for the use of any Third Party Software used in connection with the Functions that is not delivered by us under these Terms.

5.2 Licence

Subject to these Terms, we hereby grant Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Functions for the duration of the subscription period stated in the Terms of Service.

We may revoke the granted license if we have reason to believe that Customer or any of its Authorized Users are in breach of these Terms or any other agreements that we have concluded, or if Customer’s organisation has failed to comply with any provisions of the Terms of Service or is late with payment.

Other than the licenses expressly granted under these Terms, we do not grant any license, right, or assignment of any of our intellectual property rights or to any Third Party Software.

Customer will in good faith notify Encube in writing if it becomes aware of: (a) any infringement or suspected infringement of our trademarks or any other intellectual property rights in or relating to the Functions; and (b) any claim that any Functions or the use of the Functions infringes the rights of any third party.

In the case of any matter falling within the preceding paragraph (a): (a) we shall determine what action if any shall be taken in respect of the matter; and (b) we shall have sole control over and shall conduct any consequent action as we shall deem necessary.

5.3 Feedback

Customer acknowledges and agrees that we may freely use, incorporate, and build upon any feedback, suggestions, ideas, or recommendations Customer provides regarding the Functions (“Feedback”). Customer and its Authorized Users hereby assigns to us all intellectual property rights in such Feedback which the Customer may have, and we shall own all intellectual property rights generated from or arising out of such Feedback.

5.4 Ownership of Content

As between Customer and us it is agreed that:

1. Customer owns any and all rights in and to Content uploaded to the Functions, and
2. Customer owns any and all output Content generated to Customer by the Functions based on Customer’s use of, and Content uploaded by the Customer on, the Encube platform, in accordance with these Terms.

5.5 Data

We own all anonymous and aggregated data generated from Customer’s and its Authorized User’s use of the Functions, including but not limited to usage patterns, performance metrics, and statistical information that does not include personal data. We also own all derived technical artifacts, representations, and derived data generated by us in the course of processing Customer’s Content to provide the Functions, including but not limited to intermediate computational results, technical representations of features or characteristics derived from Customer’s Content, and other data artifacts that are derived from but do not reproduce or reconstruct Customer’s Content (“Aggregated and Derived Data”).

Unless otherwise agreed in the Terms of Service, we may use Aggregated and Derived Data for improving and developing the Functions, analytics, machine learning models, AI models and for other business purposes.

6. LIABILITY AND LIMITATION OF LIABILITY

6.1 Disclaimer of warranties

The Functions and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that we do not warrant that the Functions will be uninterrupted, timely, secure, or error-free.

We provide no representation or warranty regarding the validity or enforceability of any intellectual property rights in the Functions. We expressly disclaim all warranties relating to intellectual property matters.

We provide no warranty and accept no liability for cybersecurity vulnerabilities in the Functions. We expressly disclaim all warranties relating to security. Our sole remedy is to use commercially reasonable efforts to provide updates.

We provide no warranties that content on our Site is accurate, complete, or current. We expressly disclaim all warranties relating to Site content, despite reasonable efforts to maintain updates.

6.2 Our liability and limitation of our liability

We will not be liable to Customer, Authorized Users, or any third party for any loss or damage (whether direct or indirect) whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with: (1) use of, or inability to use, any of the Functions; or (2) use of or reliance on any content displayed on our Functions.

In particular, we will not be liable for: (1) loss of contracts; (2) loss of reputation and/or goodwill; (3) loss of profit, loss of revenue, loss of anticipated savings and/, or loss of business; or (4) any indirect, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goodwill, use, or data or other losses, even if we have been advised of the possibility of such damages.

We will not be liable for any damages, losses, injuries, or claims arising from Customer’s use of the Functions, or based on product safety regulations, in connection with cutting, manufacturing, or processing materials, or in connection with the operation, programming, or control of any third-party products, tools, equipment, machinery, robots, cutting devices, vehicles, or other apparatus. Customer is solely responsible for verifying the accuracy and suitability of any output Content from the Functions before implementation and for ensuring compliance with all applicable safety standards, laws and regulations. Customer uses the Functions for manufacturing and production purposes entirely at its own risk.

Our total liability or any obligation to indemnify and hold harmless under these Terms and any contractual relationship with the Customer, shall not exceed the amount Customer paid for the Functions that gave rise to the claim during the twelve (12) months period immediately prior to the date the cause of action arose.

We shall have no indemnification obligation to Customer for any third party claims from any person, authority or court against Customer, regardless of the nature of such claims or whether they relate to alleged infringement or otherwise.

6.3 Customer’s liability

Customer is responsible for any damage or loss inflicted on us that is caused by Customer’s use of the Functions or through Customer’s Account, or as a result of Customer’s breach of these Terms.

Customer shall defend, indemnify, and hold us, our affiliates, and our respective officers, employees, and agents harmless from any and all claims, suits, demands, or proceedings brought against Customer by a third party insofar and to the extent that such claims are due to or arise out of: (a) Customer’s misuse or modification of the Functions; (b) any representation or warranty by Customer concerning the quality, performance, or other characteristics of the Functions, inconsistent with these Terms; (c) infringement by Customer or its Authorized Users, or under Customer’s permission, of intellectual property of any third party; or (d) any other acts or omissions by Customer under these Terms.

An action, loss or damage ascribed to Customer above shall include Authorized Users or any other representative of the Customer and Customer shall be responsible for such persons.

7. CONFIDENTIALITY

Each Party (the “Receiving Party”) may have access to confidential information of the other Party (the “Disclosing Party”) under these Terms. The duty of confidentiality under these Terms shall not extend to information that: (a) is or becomes publicly known through no act or omission of the Receiving Party; or (b) was in the Receiving Party’s lawful possession prior to the disclosure; or (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.

Subject to the following paragraph, each Party shall hold the other Party’s confidential information in confidence and, unless required by law or regulations of any stock exchange by which it is bound, not make the other Party’s confidential information available to any third party or use the other Party’s confidential information for any purpose other than the implementation of these Terms.

Each Party agrees to take all reasonable steps to ensure that the other Party’s confidential information, to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.

A Party may disclose confidential information to the extent such confidential information is required to be disclosed by law, by any governmental or other regulatory authority or regulations of any stock exchange by which it is bound, or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this paragraph, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.

Upon either Disclosing Party’s request or upon termination or expiry of these Terms, the Receiving Party agrees to, at a Disclosing Party’s option, either (i) return to the requesting Disclosing Party the confidential information, including any and all documents, copies and derivatives thereof, or to (ii) destroy such confidential information, including any and all documents, copies, and derivatives thereof, and certify to such Disclosing Party in writing the fact of such destruction. The Receiving Party shall not retain documents or material in any form of such confidential information, except that Receiving Party shall be entitled to retain, for its records, one electronic record of its deliverables for archival purpose, solely. The duty to return or destroy confidential information shall not apply to copies of electronically exchanged confidential information made as a matter of routine information technology backup, provided that such confidential information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.

The confidentiality provisions in this section shall survive termination of these Terms.

8. MISCELLANEOUS

8.1 Anti-corruptions Laws

Customer shall comply with applicable anti-corruption laws. Customer may not, at any time, directly or indirectly, through employees or third parties, pay, offer, give, or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises.

8.2 Compliance

Customer shall not provide access to, make available, use, or permit the use of the Functions supplied under or in connection with these Terms, directly or indirectly, in the Russian Federation or for use in the Russian Federation, to the extent such access or use falls within the scope of Article 12g of Council Regulation (EU) No 833/2014, as amended from time to time.

Customer represents that it is not, and is not owned or controlled by a person or entity that is, subject to restrictive measures adopted by the European Union, and that it will not use, make available or otherwise permit access to the Functions in violation of applicable sanctions laws.

8.3 Independent Contractor

The Parties are independent contractors, and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

8.4 No Waiver

Failure or delay by either Party in exercising any right under these Terms shall not constitute a waiver of that right.

8.5 Severability

If a court of competent jurisdiction or other competent authority finds any provision to be unlawful and/or unenforceable, the provision shall be enforced to the fullest extent permissible and, otherwise, modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in full force and effect.

8.6 Costs

Unless stated otherwise, each Party will pay its own costs in relation to these Terms and the Functions.

8.7 Entire Agreement

These Terms shall constitute the entire agreement between the Parties in relation to the Functions and supersede all previous agreements between the Parties in relation to subject matter of these Terms.

8.8 Assignment

Encube is free to assign any part or all of the Terms to one or several affiliates.

8.9 Trademarks

Customer grants to Encube a limited, non-transferable, non-exclusive license to use Customer’s trademarks and logos on or in relation to the Site for the purpose of the promotion, advertisement and sale of the Functions.

8.10 Notices

All notices shall be in writing and shall be deemed to have been given upon the day of sending by email. Notices to Encube shall be sent to Contact Information. Notices to Customer shall be provided to the Customer’s contact person as specified in the Terms of Service.

9. TERM AND TERMINATION

These Terms shall remain in effect for the duration of the subscription period stated in the Terms of Service (“Initial Service Term”).

Unless terminated by either Party with at least 90 days’ written notice before the expiry of the then current service period, the Terms shall automatically renew for additional periods [of one (1) year at the time/equal to the expiring Initial Service Term] (each a “Renewal Term”).

In addition to any termination rights stated elsewhere in these Terms, a Party may terminate the Terms for cause (i) upon 30 days’ written notice to the other Party of a material breach, if the breach remains uncured at the expiration of the notice period, (ii) immediately if the other Party becomes the subject to a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or governmental regulations, (iii) immediately if the other Party goes out of business, ceases its operations or is subject to a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets.

Termination shall not relieve either Party of obligations incurred prior to termination. Customer is obliged to pay all fees owed for the period before the termination date.

The provisions herein that by their nature are intended to survive the expiration or termination of these Terms shall so survive to the extent necessary for the intended preservation of the Parties’ rights and obligations.

10. Force Majeure

Encube shall not be liable for any damage inflicted on Customer as a direct or indirect consequence of Encube being delayed or prevented in the performance of its obligations under these Terms as a result of a force majeure situation. Force majeure shall include, but not be limited to, war and mobilization, natural disasters, strikes, lock-out, fire, terrorist attacks, hacker attacks, epidemics, pandemics, damage to production plant, import and export regulations and other circumstances or events which are beyond the control of Encube and result in Encube’s inability to perform under these Terms.

11. SUPPORT SERVICES

We may at times have to temporarily suspend the access to any of the Functions in order to:

1. fix technical problems or make minor technical updates; or
2. update changes of the Functions to reflect changes in applicable laws and regulatory requirements.

We will not be liable to Customer if, for any reason whatsoever, the Functions are unavailable at any time or for any period.

Our customer support department provides a variety of support services. Hours of operation are Monday to Friday between 09:00 and 15:00 Central European Time (CET). Customer may contact us using our Contact Information for support.

We provide support for the Functions only and do not provide support for any Third Party Software.

12. APPLICABLE LAW

Swedish law shall apply to these Terms, without giving effect to its choice of law rules. We hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Swedish Sale of Goods Act (Sw: köplagen (1990:931)).

Any dispute between the Parties arising out of or in connection with these Terms, including any question regarding the existence, validity, or termination of these Terms or any subsequent amendments, shall be finally settled under Swedish law before the Swedish Institute of Arbitration in accordance with its expedited arbitration rules, except that disputes relating to non-payment of fees may be brought before Swedish courts with the Stockholm District Court as the court of first instance. The seat of arbitration shall be Stockholm, Sweden. All proceedings shall be confidential and shall be conducted in the English language, unless otherwise agreed by the Parties.

13. COMPLAINTS

If Customer has any complaints, please contact us via our Contact Information.

We will always try to solve any complaints through discussions.

14. CONTACT AND COMPANY INFORMATION

Encube Technologies AB is an entity registered in Sweden.

Address: Hammarby Kajgata 16, Stockholm, Sweden

Registration number: 559343-6909

VAT Reg. No.: SE559343-690901

Customer may contact Encube via email to contact@getencube.com (“Contact Information”).