3D ModelWORKS.COM - Interactive 3D Models and Textures


	COMMERCE AGREEMENT Since the products referenced in this site are provided by parties other than the 3D ModelWorks and we are making the products available to the general public through the Internet, it is neccessary to define some ground rules. These rules protect your intellectual property as well as our business. NOTE: In order to participate on 3D ModelWorks, modelers must accept these terms. RELATED LINKS Information for Modelers How to contact us General Site Disclaimer Home Page

Commerce Agreement

This Commerce Agreement (the "Agreement") is entered into between Global Majic Software, Inc., doing business as "3D ModelWorks" ("3DMW"), located at 620 Discovery Drive, Building 2, Suite 250, Huntsville, Alabama 35806, and the software modeler hereto (the "Modeler"). Modeler has developed certain software and desires to appoint 3DMW as an agent to accept payment for such software from customers. Therefore, 3DMW and Modeler agree as follows:

Description of Products. This Agreement applies to the models (the "Model" or "Models") designed by the Modeler. All Models that have been uploaded to this site are part of this Agreement.
Appointment of Agent. Modeler hereby appoints 3DMW as a non-exclusive agent to accept payment for the Models from customers and to remit such payments (less the applicable 3DMW fees) to Modeler, on the terms described below.
1. The Models will be indexed on one or more 3DMW sites on the World Wide Web, including the 3D ModelWorks site.
2. The 3D ModelWorks site will include instructions for customers to download the Model and pay the applicable purchase price (with any applicable charges) by credit card. 3DMW will process such credit card transactions as agent for Modeler.
3. Modeler will provide 3DMW with and electronic copy of the complete Model (all the files necessary including geometry and texture files) which will be posted on a server with restricted access. When the required credit card transaction validation is complete, 3DMW will send notice of the sale ("Sales Notice") to Modeler via electronic mail and will grant the customer limited access to the server to download the Model(s). The Sales Notice will identify the Model purchased and will include all registration information provided by the customer. 3DMW may accumulate Sales Notices and send them to Modeler in batches with reasonable frequency.
Reports, Collection and Fees.
1. Within 30 days after the end of each month, 3DMW will send the Modeler a summary report of all transaction related to the Models during such month, indicating each transaction date, the customer's profile, and the amount collected. 3DMW will provide contact information for a person within 3DMW who will be responsible for addressing any problems or issues relating to Modeler's participation in the 3D ModelWorks site.
2. With the report described in the preceding paragraph, 3DMW will pay to Modeler all amounts collected in respect of the Software, (the "Gross Receipts") during such month, less the percentage amount of the transaction total agreed upon by Modeler during registration. This percentage is 24 percent (24%) for account option A and 34 percent (24%) for account option B.
3. Gross Receipts for each month will be reduced by the amount of any prior Gross Receipts that are charged back or lost during such month due to contested credit card transactions and any fees or penalties associated therewith ("Chargebacks"). If such Chargebacks result in a negative amount of Gross Receipts for a particular month, then within 30 days after the end of such month, Modeler will pay to 3DMW an amount equal to such negative Gross Receipts, minus the 3DMW fee applicable to such Gross Receipts. 3DMW may enforce its rights under this paragraph by offset against any payments due to Modeler under this Agreement.
4. With respect to the payment set forth herein, 3DMW shall keep complete and accurate records. These records shall be retained for a period of three years from the date of the payment. 3DMW agrees to permit its directly related financial records and accounts to be examined, at Modeler's expense, by an independent certified accountant reasonably acceptable to 3DMW, not more than once a year, during normal business hours, to verify the amount of the payment payable to Modeler under this Agreement. Prompt adjustment shall be made by 3DMW to Modeler (or Modeler to 3DMW) corresponding to the net amount of any underpayment (or overpayment) of such payment due hereunder.
Proprietary Rights and Responsibilities. Modeler will retain all proprietary rights in and to the Models. 3DMW will act under this Agreement solely as agent for Modeler and will have no proprietary rights in or to the Models at any time and will not be considered a publisher or reseller of the Models. Modeler will be solely responsible for the content, quality and performance of the Models and for any warranty, return, support, maintenance or other obligations related to the Models. 3DMW will have no responsibility or liability whatsoever for the foregoing.
Representations and Warranties. Modeler hereby represents to 3DMW that
1. the information concerning Modeler and Models provided to 3DMW is accurate and complete;
2. Modeler is the exclusive owner of all rights and interests in the Models and all Model descriptions are free and clear of any adverse claims of any kind;
3. neither the Models nor the marketing or sale of the Models by Modeler nor any of the Model descriptions infringes any copyright, patent, trademark, license, or other proprietary right of any person or entity, and, to the knowledge of Modeler, no person or entity has alleged any such infringement;
4. neither the Models nor any of the Model descriptions contains any material that is libelous or defamatory or that discloses private or personal matters concerning any person, obscene, indecent, or pornographic material or any computer "virus" or other contaminating or destructive feature or otherwise infringe on the rights of any person or entity or violate any applicable law; and
5. Modeler is not bound by any contract or arrangement of any kind that conflicts with the terms of this Agreement.
Miscellaneous
1. 3DMW reserves the right, in its sole discretion, to exclude any particular Modeler or Model from the site for any reason.
2. This Agreement will remain in effect until terminated by either party on 30 days notice (via electronic mail) to the other party. No termination will affect any obligations arising prior to the effectiveness of such termination or any indemnification obligation contained herein. 3DMW may remove any Models from the site and/or the server immediately and without notice if 3DMW determines that removal is necessary in order to avoid potential liability to third parties or under applicable law. Following notice of termination by either party, 3DMW may establish a reasonable reserve for future Chargebacks and withhold this reserve from any payments due to Modeler. Within 90 days after termination, 3DMW will provide Developer with a final report of any Chargebacks applied against the reserve and either
  - pay Modeler the unused portion of the reserve; or
  - invoice Modeler for additional amounts payable in respect of Charegbacks not covered by the reserve, which amounts must be paid by Modeler within 30 days after receiving such invoice.
3. Modeler hereby agrees to indemnify and hold harmless 3DMW and its officers, directors, and controlling persons from and against any and all claims, liabilities or expenses (including court costs, attorney's fees and costs of settlement) incurred by any of them in connection with or arising out of
  - any breach or alleged breach by Modeler of any of its representations, warranties, or covenants in this Agreement;
  - any claim or liability relating to the content, quality, or performance of the Model or any warranty, return, support, maintenance, or other obligations related to the Models;
  - any claim or liability relating to sales taxes applicable to transactions involving the Model; or
  - any other obligation or responsibility expressly allocated to 3DMW under this Agreement.
4. ANY LIABILITY OF EITHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OF A PARTY), INTENDED CONDUCT, OR OTHERWISE, WILL BE LIMITED TO THE OTHER PARTY'S ACTUAL, DIRECT DAMAGES. THE AMOUNT OF DAMAGES RECOVERABLE AGAINST 3DMW FOR ALL EVENTS, ACTS, OR OMISSION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE MODELS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF 3DMW FEES THEN PREVIOULSY COLLECTED BY 3DMW. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
5. 3DMW will not be liable for any delay or failure to fulfill its obligation hereunder that results from an act of God, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, failure or fluctuation in electrical power or other utility services or other cause beyond its reasonable control.
6. This Agreement will not be construed to create a joint venture or partnership between the parties hereto and neither will have the right, power or authority at any time to act on the behalf of, to impose any obligation on or to represent the other, except as expressly set forth herein. Modeler understands that 3DMW may subcontract certain of its obligation under this Agreement, including credit card processing and the operation of the server.
7. This Agreement will be governed by and construed in accordance with the laws of the State of Alabama, without regard to the conflicts of law provisions thereof. The parties mutually consent and submit to the jurisdiction of the federal and state courts for Madison County, Alabama, and agree that any action, suit or proceeding concerning this Agreement will be brought only in the federal or state courts of such county and that they will not raise, in connection therewith, any defense or objection based on lack of personal jurisdiction, improper venue, inconvenience of forum or the like.