Welcome! Please take a moment to scroll down and read these Terms of Service.
These Terms of Service (“Terms”) apply to your access to and use of the website, web application (“App”) and other online products and services (collectively, the “Services”) provided by Frustum, Inc. (“Frustum,” “we,” “us,” or “our”). Please read these Terms carefully. These Terms state the terms and conditions under which you may use the Services. BY CLICKING “I ACCEPT” OR BY USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER BELOW, AND YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD OR OLDER. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services (e.g., during your next log-in to your account), or by updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of the Services after we provide such notice will confirm your acceptance of the changes, provided that you may be asked to affirmatively consent to the changes prior to logging in to your account. If you do not agree to the amended Terms, you must stop using our Services.
For information about how we collect, use, share or otherwise process information about you, please see our Privacy Statement (located at https://generate-de.frustum.com/#/start/terms_of_use#privacy_policy).
You will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Services; (ii) introduce into the Services any virus, worm, “black door,” Trojan Horse, or similar harmful code; (iii) sell or resell our Services; (iv) attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access; (v) use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; or (vi) develop or use any applications that interact with our Services without our prior written consent. If you violate this section, we reserve the right in our sole discretion to immediately deny you access to the Services, or any portion of thereof, without notice.
You will pay the applicable fees for the Paid Subscription and On-Demand Credits (if purchased) (“Fees”). We may use a third-party service provider (“Third-Party Service Provider”) to process your payment in connection with your use of the Services. You warrant and represent that you are the valid owner or an authorized user, of the credit card you provide to such Third-Party Service Provider, and that all credit information is accurate. We reserve the right to change any of the Fees that we charge, or to institute new or additional fees, at any time upon notice to you.
Based on your Subscription plan, at the beginning of each month during your Subscription period, your account will be replenished with the numbers of credits that are made available to you with your Subscription plan (“Credits”). Each time you run an optimization scenario or mesh the result (collectively, the “Tasks”), applicable Credits will be deducted from your account. Credits that remain unused in a particular month do not roll over to the next month. If you do not have sufficient amount of Credits to run a Task, you may purchase on-demand credits by paying the applicable Fees (“On-Demand Credits”). On-Demand Credits will only be deducted from your account each time you run a Task in the event you do not have sufficient Credits to run the Task. On-Demand Credits never expire and any unused On-Demand Credits in a particular month will roll over to the next month.
Credits and On-Demand Credits may never be redeemed or exchanged for real money, goods, services, or any other item of monetary value. Any transfer or exchange of Credits and On-Demand Credits is strictly prohibited, and any attempt to do so, even outside the scope of the Services, is a material breach of these Terms and may result in immediate termination of these Terms.
You understand that from time to time Frustum may change the Fees for the Services and, as a result, additional Credits may be needed to run a Task.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT ALL PURCHASES OF ON-DEMAND CREDITS ARE FINAL, AND THAT NO REFUNDS OR EXCHANGES SHALL BE PERMITTED, EXCEPT IN OUR SOLE AND ABSOLUTE DISCRETION.
Frustum and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Frustum and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You or Frustum (“Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”) in connection with the Services. The Receiving Party will use the same degree of care that it uses to protect its own confidential information (but in no event less than reasonable care) and will (1) use the Confidential Information of the Disclosing Party only in connection with the Services, and (2) limit access to the Confidential Information of the Disclosing Party to those of its affiliates, employees, contractors, service providers and agents who need such access in connection with the Services and who are subject to confidentiality obligations containing protections no less stringent than those herein.
“Confidential Information” means all confidential information disclosed by a Disclosing Party to a Receiving Party, whether orally or in writing, that is designated as confidential. Your Confidential Information includes your Projects and 3D Files; Frustum Confidential Information includes the Services and related technology, product plans and technical information. Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
In order to use some or all of the Services, you will have to register as a user (“Registered User”) by creating an account. You represent and warrant that all registration information that you submit is truthful and accurate, and you will maintain the accuracy of such information. You must maintain the security of your account and promptly notify us if you discover of suspect that someone has accessed your account without your permission. You are solely responsible for the confidentiality of your account, as well as for any use and misuse of the Services made using your account. You will promptly inform us of any need to deactivate your user name or password.
By accessing and/or using the Services, you hereby agree to the following (“Community Guidelines”):
By submitting any unsolicited information and materials, including comments, ideas, questions, designs, feedback, and other similar communications (collectively, “Unsolicited Information”) to us, you agree to be bound by the following terms and conditions. If you do not agree with these terms and conditions, you should not provide us with any Unsolicited Information. All Unsolicited Information will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. We, or any of our affiliates, may use such Unsolicited Information for any purpose whatsoever, commercial or otherwise, without acknowledgement or compensation to you, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting. Further, we and our affiliates are free to use any ideas, concepts, know-how, or techniques contained in any Unsolicited Information you send to us for any purpose whatsoever, commercial or otherwise, without acknowledgement or compensation to you, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Unsolicited Information, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold Frustum, its affiliates, subsidiaries, or its or their officers, directors, employees or agents (collectively, the “Frustum Parties”) harmless from and against any and all claims, actions, or demands and relating costs, damages, losses and liabilities arising or resulting from: (i) your violation of these Terms; (ii) your access to, use, or misuse of the Services; (iii) any CAD Files uploaded through your account; or (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right. You agree to promptly notify the Frustum Parties of any third-party claims, cooperate with the Frustum Parties in defending such claims and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees). You also agree that the Frustum Parties will have control of the defense or settlement, at Frustum’s sole option, of any third-party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Frustum or the other Frustum Parties.
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND ALL CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE SERVICES, IS PROVIDED “AS IS,” “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, NONE OF THE FRUSTUM PARTIES WARRANT THAT ANY OF THE FOREGOING WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WHILE WE ATTEMPT TO MAKE YOUR USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. NONE OF THE FRUSTUM PARTIES SHALL BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF ANY OF THE FOREGOING. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY OF THE FRUSTUM PARTIES BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE—FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF A FRUSTUM PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE FRUSTUM PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, REGARDLESS OF THE FORM OF THE ACTION,, EXCEED THE GREATER OF (1) THE TOTAL SUBSCRIPTION FEES PAID BY YOU TO FRUSTUM IN THE ONE (1) MONTH IMMEDIATELY PRECEDING SUCH CLAIM; AND (2) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH HEREIN WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF ANY FRUSTUM PARTY OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
The Services include on-line tools that may be used for commercial professional use. The Services are not a substitute for your professional judgment. The Services have not been tested in all situations under which they may be used. Frustum will not be liable for the results obtained through use of the Services. Persons using the Services are responsible for establishing adequate procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Services.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE FRUSTUM AND THE OTHER FRUSTUM PARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING, BUT NOT LIMITED TO, CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF THIRD PARTIES. IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH FRUSTUM AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
NO REPRESENTATIVE ACTIONS. YOU AND FRUSTUM AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES IS PERSONAL TO YOU AND FRUSTUM AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
Arbitration of Disputes. Except for small claims disputes in which you or Frustum seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Frustum seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Frustum waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Frustum or relating in any way to the Services, you agree to first contact Frustum and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Frustum by email at email@example.com or by certified mail addressed to Frustum, Inc. 4772 Walnut Street, Suite 201 Boulder, CO 80301 ATTN: Legal Department. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Frustum cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York, New York, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Frustum agree that these Terms affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Frustum, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Frustum agree that for any arbitration you initiate, you will pay the filing fee and Frustum will pay the remaining JAMS fees and costs. For any arbitration initiated by Frustum, Frustum will pay all JAMS fees and costs. You and Frustum agree that the state or federal courts of the State of New York and the United States sitting in New York, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Frustum will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section by emailing us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the “Governing Law and Venue” Section.
If any portion of this Section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section will be enforceable.
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York, New York, provided that any proceedings commenced by Frustum to protect its intellectual property may be brought in any court of competent jurisdiction.
The Services may contain links to third-party websites (“External Sites”), but we do not endorse and are not responsible for the maintenance or content of any linked External Sites. Please refer to the Terms and privacy policies of the External Sites for more information.
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
We make no claims concerning whether the Services or any content, functions or materials made available to you through the Services may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or any Frustum Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
These Terms become effective on the date you first agree to these Terms by clicking of the “I Accept” button and continue until terminated. Either party may terminate these Terms if the other party is in breach and fails to cure such breach within ten (10) days of written notice of the breach.
We reserve the right to modify the Services or to suspend, or discontinue all or any part of the Services at any time. We are not responsible for any loss or harm related to your inability to access or use the Services.
You may stop using the Services at any time provided that under no circumstances will you be entitled to a refund of any Fees paid. We reserve the right, to temporarily suspend or terminate your access to the Services at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Services for: (a) the actual or suspected violation of the Community Guidelines; (b) the use of the Services in a manner that may cause Frustum to have legal liability or disrupt others’ use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; or (e) unplanned technical problems and outages.
In the event that any portion of these Terms is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms shall remain in full force and effect. This section, the sections entitled “Frustum Intellectual Property,” “Indemnification,” and “Disclaimers and Limitation of Liability” shall survive the termination of these Terms. You may not assign these Terms. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms. These Terms contain the entire agreement of the parties concerning its subject matter, and supersede all existing agreements and all other oral, written or other communication between the parties concerning the subject matter.
You consent and agree that your clicking of the “I Accept” button constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of these Terms or any amendment or other document executed in compliance with these Terms.