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Terms of Service

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Terms and Conditions Of Purchase

TRIMBLE SEFAIRA SUBSCRIPTION TERMS OF SERVICE

Revised: 2017

This Trimble Sefaira Subscription Terms of Service (this “Agreement”) is entered into as of the Effective Date between Trimble Inc. and its affiliates (“Trimble”) and you (“Customer” or “you”), an entity accessing or using one or more Trimble Sefaira online software-as-a-service solutions. The Services (as defined below) are designed to enable users to understand the performance characteristics of digital models of buildings they create, including such elements as energy performance, use of natural daylight, HVAC sizing, and other similar metrics, as further described in the Documentation (as defined below). Entry into the Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services or (b) the effective date of the first Quote referencing this Agreement. This Agreement governs use of the Services no matter how accessed, including without limitation via a mobile, tablet or web application. If the individual entering into this Agreement is an employee or agent of Customer, then such individual must be authorized to, and by agreeing to the terms of this Agreement hereby does, bind Customer to this Agreement. Quotes. Customer and Trimble may enter into order forms, quotations, change orders, sales agreements, or any other document referencing this Agreement (which may consist of online registration or separate Trimble order forms) (each, a “Quote”) for Customer’s purchase of a subscription to the Services from Trimble. The version of this Agreement referenced in the Quote will govern Customer’s purchase of the Services specified therein. This Agreement governs Customer’s initial purchase as well as any future purchases made by Customer that reference this Agreement. In the event of any conflict between this Agreement and a Quote, the terms of the Quote will prevail. Purchase from Reseller: If Customer purchases any Services from an authorized distributor or reseller of Trimble (“Reseller”), Customer’s use of the Services will be governed by this Agreement, except that Customer will pay Reseller for the Services. Changes to Agreement. From time to time, Trimble may modify this Agreement. Any changes will be effective upon the next renewal of Customer’s Subscription Term (as defined below). Customer may elect not to renew its Subscription Term if it does not agree to such changes (but use of the Services during the renewal Subscription Term will constitute acceptance of the amended Agreement).  Trimble will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before continuing to use the Services. The then-current version of this Agreement can be accessed and viewed at any time at www.sefaira.com/tos. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. 1. DEFINITIONS “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. “Collaborator” means an individual who is granted limited access to the Services as described in Section 4. “Contractor” means an independent contractor or consultant who is not a competitor of Trimble. “Web Application” means Trimble’s online user interface for accessing and administering the Services. “Model” means a three-dimensional digital model of a building created using a Modeling Program. “Modeling Program” means Trimble SketchUp® or other modeling software programs designated by Trimble as compatible with the Services. “Output” means any energy performance, energy efficiency, HVAC sizing or other reports, or any other output, generated by the Services. “Plug-Ins” means the downloadable plug-ins for the Services made available to Customer by Trimble. “Project” means a collection of one or more Models, together with data associated with or calculated based on the Models. “Services” means Trimble’s proprietary Sefaira software-as-a-service solution(s), including the Web Application, Plug-Ins and Output, as described in the applicable Quote. 2. THE SERVICESS 2.1. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Quote (each, a “Subscription Term”). Trimble may also offer Professional Services (as defined in Section 10) related to the Services. 2.2. Access to the Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Services (“Documentation”) and any scope of use restrictions designated in the applicable Quote. Use of and access to the Services is permitted concurrently only by the number of employees of Customer specified in the applicable Quote (“Permitted Users”). If Customer is given passwords to access the Services, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. In the event that any Permitted User who has access to a user ID is no longer an employee of Customer, Customer will be solely responsible for de-activating such Permitted User’s access, and may re-allocate such Permitted User’s access to a different employee. Further, if Customer is ordering a “Managed License” as set forth in the applicable Quote, Customer may transfer Permitted User status from one employee to another at any time, provided that Customer remains compliant with this Section 2.2, including without limitation by limiting the number of Permitted Users to the number specified in the applicable Quote. 2.3. Output and Plug-Ins. Subject to all of the terms and conditions of this Agreement, Trimble grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license (a) during and after any applicable Subscription Term to use the Output for its business purposes and (b) during any applicable Subscription Term to use the object code form of the Plug-Ins internally, but only (i) with compatible Modeling Programs for which the Plug-Ins are designed and (ii) in connection with Customer’s use of the Services and otherwise in accordance with the Documentation and this Agreement. 2.4. Modeling Programs. The Services can be used in connection with Modeling Programs. Certain Modeling Programs are developed and distributed by third parties (“Third Party Modeling Programs”). All Third Party Modeling Programs are sold and supported separately by the applicable third party providers and, notwithstanding anything to the contrary in this Agreement, Trimble does not provide any support for Third Party Modeling Programs. Use of any Modeling Program (including Third Party Modeling Programs and Trimble’s Modeling Programs) by Customer is governed by Customers’ agreement with the supplier of such Modeling Program and is not governed by this Agreement. 2.5. Contractors and Affiliates. Customer may permit its Contractors and Affiliates to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of the Services by such Contractor or Affiliate is for the sole benefit of Customer. Use of the Services by Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Quote. The Affiliate rights granted in this section will not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Quote. 2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Trimble); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services. 2.7. Third Party Terms. Trimble may use third party products and services (including without limitation software subject to open source and third party license terms that is incorporated in the Plug-Ins) in its provisioning of the Services, including without limitation for hosting Customer Data (“Third Party Offerings”). If Trimble notifies Customer of any additional end user terms or open source or third party licenses for use of such products and services (“Third Party Terms”), then Customer agrees to comply with such Third Party Terms. Any noncompliance by Customer with any Third Party Terms will be deemed a material breach of this Agreement. Neither Trimble nor Trimble’s suppliers offer any warranty in connection with any Third Party OFFERINGS (including without limitation any warranty the third party offerings will continue to be provided as part of the services) and neither Trimble nor ITS Suppliers will be liable to CUSTOMER for such Third Party OFFERINGS. In the event of a conflict between this Agreement and any Third Party Terms, the Third Party Terms will control with regard to Customer’s use of the relevant Third Party Offerings. The applicable Third Party Terms with respect to the Services (including, without limitation, any open source software utilized in the Plug-Ins and the applicable license terms) are listed at http://sefaira.com/sefaira-oss-components/. 2.8. Trial Subscriptions. Where indicated in the applicable Quote, Customer may receive free access or a trial or evaluation subscription to the Services (a “Trial Subscription”). If Customer receives a Trial Subscription, then Customer may use the Services in accordance with the terms and conditions of this Agreement and the applicable Quote for the period designated in such Quote or otherwise by Trimble (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Services. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis or commercial Projects. At the end of the Trial Period, the Trial Subscription will expire and Customer will have the option to purchase a full subscription to the Services. If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Services unless otherwise specified in the Quote for the Trial Subscription. Trimble has the right to terminate a Trial Subscription at any time for any reason. The Services may have a mechanism that limits access during the Trial Period and Trimble may otherwise restrict certain product functionality during the Trial Period. Customer will not attempt to circumvent any such mechanism or restriction. Trimble has no obligation to retain Customer Data used with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SERVICES ARE PROVIDED “AS IS” AND TRIMBLE WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE QUOTE. 3. CUSTOMER DATA 3.1. Definition. “Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into the Services (including without limitation any Models). 3.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Trimble. Subject to the terms of this Agreement, Customer hereby grants to Trimble a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and publicly perform and display the Customer Data solely to the extent necessary to provide the Services to Customer. 3.3. Storage of Customer Data. Trimble does not provide an archiving service. Trimble agrees only that it will not intentionally delete any Customer Data from the Services prior to termination of Customer’s applicable Subscription Term. Trimble expressly disclaims all other obligations with respect to storage. 3.4. Customer Obligations. a) In General. Customer will ensure that Customer’s use of the Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Trimble that Customer has sufficient rights in the Customer Data to grant the rights granted to Trimble in Section 3.2 above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. b) Health Information. In addition, Customer specifically agrees not to submit to the Services any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that Trimble is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Trimble will have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein. c) Misuse. Customer agrees that Customer will not misuse the Services, including without limitation in the submission of Customer Data. Misuse includes, but is not limited to:
  • Using the Services to disseminate or convey inappropriate, defamatory, obscene, salacious, or unlawful information, images or materials; or to defame, harass, stalk, threaten or otherwise violate the legal rights of others.
  • Using the Services in such a manner so as to interfere unreasonably with its use by others; or attempting or assisting another to access, alter, or interfere with the communications and/or information of another user.
  • Subscription fraud or unauthorized access.
  • Uploading, or otherwise making available, files that contain text, data, images, photographs, software or other materials owned by others that are protected by intellectual property laws (e.g., copyright, trademark, rights of privacy or publicity) and for which Customer has not received all necessary and legal consents for their use. Using any information, images or other materials available through the Services in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party.
  • Advertising, offering to sell or buy goods, or using the Services for business promotional purposes.
  • Violating any code of conduct associated with the Services, or any applicable laws or regulations.
  • Taking any action that imposes an unreasonable or disproportionately large load on the Services’ infrastructure; or uploading files that contain viruses, Trojan horses, worms, or other similar software or programs that cause damage to computers or property of others.
3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Trimble from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data, (b) any breach or alleged breach by Customer of Section 2.7 (Third Party Terms) or Section 3.4 (Customer Obligations), or (c) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Trimble at Customer’s expense. Customer will not settle any claim without Trimble’s prior written consent, unless the settlement fully and unconditionally releases Trimble and does not require Trimble to pay any amount, take any action, or admit any liability. 4. COLLABORATORS. 4.1. Invitation. Customer may invite Collaborators to access Projects shared by Customer via the Web Application for the limited purpose of viewing Output with respect to such Projects. Customer will have sole discretion as to (a) which Projects are shared and (b) which Collaborators are permitted to access each Project. Trimble is not responsible for any actions taken by a Collaborator. 4.2. Collaborator Access. If a Collaborator is a current Trimble customer of the Services, then such Collaborator will access Customer’s Models via such Collaborator’s existing Services account. If a Collaborator is not a current Trimble customer of the Services, then Customer must provision such Collaborator with Permitted User access as set forth in Section 2.2 (Access to the Services), but such Collaborator’s access to the Services will be limited to the purposes described in Section 4.1. 5. OWNERSHIP 5.1. Trimble Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Trimble or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Services, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Trimble Technology”). Except as expressly set forth in this Agreement, no rights in any Trimble Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as on-line, hosted solutions, and that Customer has no right to obtain a copy of the any of the Services, except for the Plug-Ins and Output. 5.2. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Trimble product or service to Trimble (“Feedback”). Trimble may freely use or exploit Feedback in connection with any of its products and services. 5.3. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Trimble and its affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from Customer Data and any other data related to the Services, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Services, and/or the development of other products or service capabilities. Customer hereby acknowledges and agrees that Trimble and its affiliates may disclose to third parties aggregate data derived from Customer Data or from any other data related to the Services, so long as such aggregate data is not personally identifiable with respect to Customer. Further, all service data, usage data, and other data that does not identify Customer and any data that is derived from the Customer Data and all data, reports, derivative works, compilations, modifications and other materials created by Trimble from or with use of such data will be, in each case, the sole and exclusive property of Trimble; and Customer, on Customer’s behalf and on behalf of Customer, hereby assigns all of Customer’s, title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties. 6. Subscription Term, FEES & PAYMENT 6.1. Renewals. Unless otherwise set forth in the applicable Quote, at the end of each Subscription Term, the parties may renew the Subscription Term for a length and at pricing as mutually agreed by the parties in writing. 6.2. Fees and Payment. All fees are as set forth in the applicable Quote and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Quote. Except as expressly set forth in Section 8 (Limited Warranty), all fees are non-refundable. The rates in the Quote are valid for the initial Subscription Term. Customer is required to pay all sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Trimble. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. 6.3. Suspension of Services. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Trimble reserves the right to suspend Customer’s access to the Services (and any related services) without liability to Customer until such amounts are paid in full. 7. TERM AND TERMINATION 7.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. 7.2. Termination for Cause. Either party may terminate this Agreement (including all related Quotes) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 7.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the Services (including any and all related Trimble Technology) and delete (or, at Trimble’s request, return) any and all copies of the Documentation, any Trimble passwords or access codes and any other Trimble Confidential Information in its possession. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For clarity, if Customer entered into a Quote with a Reseller (and not Trimble itself), Customer agrees that Trimble is a third party beneficiary to that Quote and has the right to terminate this Agreement as set forth herein. 7.4. Survival. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 1.6 (General Restrictions), 3.3 (Storage of Customer Data), 3.5 (Indemnification by Customer), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 8.3 (Warnings; Additional Disclaimers), 11 (Limitation of Remedies and Damages), 12 (Confidential Information) and 14 (General Terms). 8. LIMITED WARRANTY 8.1. Limited Warranty. Trimble warrants, for Customer’s benefit only, that the Services, when used by Customer during the Term, will operate in substantial conformity with its applicable Documentation. Trimble does not warrant that Customer’s use of the Services will be uninterrupted or error-free, nor does Trimble warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Trimble’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Trimble to use commercially reasonable efforts to correct the reported non-conformity, or if Trimble determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 8.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse or unauthorized modifications of the Services, (iii) if the error was caused by Customer or third-party hardware, software or services, or (iv) to use and access provided during a Trial Period. 8.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS IS”. NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Trimble does not warrant that Customer’s use of the Services will be uninterrupted or error-free, nor does Trimble warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Trimble WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Trimble. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. 8.3. Warnings; Additional Disclaimers. THE SERVICES ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR CUSTOMER’S PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICES, THE SERVICES HAVE NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED. ANY USE BY CUSTOMER OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK AND CUSTOMER AGREES THAT TRIMBLE WILL HAVE NO LIABILITY FOR SUCH USE. Trimble makes no representations or warranties, AND SHALL HAVE NO LIABILITY, with respect to any Third Party Modeling Programs, including without limitation regarding interoperability of the Services with any Third Party Modeling Program. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE OUTPUT OBTAINED THROUGH THE USE OF THE SERVICES OR CUSTOMER’S RELIANCE ON SUCH OUTPUT (INCLUDING WITHOUT LIMITATION CUSTOMER’S USE OF OUTPUT AS VALIDATION FOR COMPLIANCE WITH ANY REGULATIONS OR STANDARDS). CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICES. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICES AND THE SELECTION OF THE SERVICES AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE SERVICES. 9. SUPPORT AND SERVICE LEVELS. During the Subscription Term, (a) Trimble will provide end user support in accordance with Trimble’s standard service terms, which are available upon request from Trimble, and (b) the Services will be subject to the Trimble Service Level Agreement, available at http://sefaira.com/sla. 10. Professional Services. If the applicable Quote indicates that Trimble will provide any professional consulting services (“Professional Services”) to Customer, then Trimble’s provision of and Customer’s receipt of such Professional Services will be governed by Trimble’s standard Professional Services terms, available at http://www.trimble.com/legal/tandcforservices or a successor URL, unless otherwise mutually agreed by the parties in writing. 11. Limitation of Remedies and Damages 11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY Nor its suppliers WILL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 11.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TRIMBLE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. 11.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.6 (General Restrictions), Section 2.7 (Third Party Terms), or Section 12 (Confidential Information); or (b) under Section 3 (Customer Data). 11.4. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. 12. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Trimble Technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Trimble without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Trimble, the subcontractors referenced in Section 14.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, unauthorized access by third parties to any Confidential Information will not be deemed a breach of this Section 12. 13. CO-MARKETING. Customer agrees that Trimble may disclose Customer as a customer of Trimble. Customer and Trimble may participate in joint marketing activities (including, without limitation, issuance of a joint press release) as mutually agreed by the parties. 14. GENERAL TERMS 14.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign this Agreement, by operation of law or otherwise, except upon the advance written consent of Trimble. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void. 14.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. 14.3. Governing Law; Venue. This Agreement will be construed in accordance with the laws of the State of California, USA without reference to its choice of law provisions and without regard to the United Nations Convention on the International Sale of Goods. The Federal and State courts located in Santa Clara County, California will be the exclusive venue for any claim or dispute between the parties or against any agent, employee, successor or assign of the other related to this Agreement and the parties hereby consent to the personal jurisdiction of those courts for such purposes. 14.4. Notices and Electronic Communications. By registering with Trimble, Customer understands that Trimble may send Customer communications or data regarding the Services, including but not limited to (a) notices about Customer’s use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Trimble’s products and services, via electronic mail. Trimble provides Customer the opportunity to opt-out of receiving promotional and marketing-related electronic mail from us by following the opt-out instructions provided in the message. Any notice or other communication given by Customer to Trimble regarding this Agreement will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to Trimble at its notice address. Trimble’s notice address is: Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA. 14.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 14.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based offerings, and that in order to provide improved customer experience Trimble may make changes to the Services, and Trimble will update the applicable Documentation accordingly. Any support terms described in the applicable Quote may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Trimble’s obligations as compared to those reflected in such terms as of the Effective Date). Any contrary terms or conditions appearing on Customer orders or associated purchase documentation will be of no effect. 14.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. 14.8. Subcontractors. Trimble may use the services of subcontractors and permit them to exercise the rights granted to Trimble in order to provide the Services and Professional Services under this Agreement, provided that Trimble remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement. 14.9. Subpoenas. Nothing in this Agreement prevents Trimble from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Trimble will use commercially reasonable efforts to notify Customer where permitted to do so. 14.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. 14.11. Export Control. The Services are administered by Trimble from its offices or those of its affiliates at various locations within the United States of America. In Customer’s use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing: (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction; and (c) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations. Trimble may also make use of its U.S. or foreign affiliates or one or more external service providers to host the Services. Consequently, data is collected, sent, processed and stored in the United States and may be collected, sent, processed and stored outside the United States. Customer acknowledges that in the event of conflict of privacy laws or practices in the Customer’s jurisdiction and those in the domicile of the entity hosting Services the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. Customer may not use or export or re-export the Services or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If Customer chooses to access the Services from locations outside the United States, Customer does so on its own initiative and is responsible for compliance with applicable local laws. In addition to the foregoing, if Customer is located in a country identified in the U.S. Department of Commerce Country Group D list, then it (1) acknowledges that the Services are subject to the Export Administration Regulations (EAR) and the jurisdiction of the U.S. Department of Commerce or subject to the International Traffic in Arms Regulations (ITAR) and the jurisdiction of the U.S. Department of State; (2) certifies that the export, re-export, resale, and/or transfer to any party who is listed by the government of the United States as prohibited from receiving the Services or other restrictions to any destination, end-user, or for any end use prohibited by the laws of the United States, or any other applicable law where such law does not conflict with the laws of the United States, will not be violated; (3) certifies that the Services will not be resold, transferred, or re-exported without prior authorization from the U.S. Government, to any military entity on the U.S. Department of Commerce Country Group D list; (4) certifies that the Services will not be used in designing, developing, production of or using rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); (5) certifies that the Services will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certifies that the Services will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certifies that the Services will not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria or any other country under an export embargo/sanction by the U.S. Department of Treasury or U.S. Department of Commerce at the time of export; (8) acknowledges that U.S. law prohibits the sale, transfer, export, or re-export or other participation in any transaction involving products with individuals or companies listed in the U.S. Commerce Department’s table of Denial Orders, the U.S. Department of State’s list of individuals debarred from receiving Munitions List items or other entity lists published by agencies of the U.S. Government; and (9)  agrees that the export control requirements in this Section 14.11, including without limitation (1)-(8)  above, will survive the completion, early termination, cancellation or expiration for this Agreement. Customer will defend, indemnify and hold Trimble and its affiliates harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this Section 14.11.  Customer’s failure to comply with any term of this Section 14.11 constitutes a material breach of this Agreement and entitles Trimble to immediately terminate this transaction for Customer’s use of the Services in addition to any other remedy available at law or equity. 14.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited. 14.13. Purchase from Reseller.  If Customer purchased the Services through a Reseller under an order form directly with such Reseller (“Reseller Order Form”), then the following terms apply: a) Notwithstanding Section 6.2 (Fees and Payment), all fees for the relevant Services will be payable directly to the Reseller.  The Reseller Order Form will stand in for the “Quote” for purposes of identifying the Services, Professional Services, fees and scope of use and support. b) Resellers may provide additional support services under a separate written agreement with Customer, but Trimble is not responsible for any such support. c) If a Reseller Order Form includes any Professional Services, then the Reseller (and not Trimble) is solely responsible for providing Professional Services and Trimble has no liability related to such Professional Services. d) If Reseller fails to pay Trimble the applicable fees for Customer’s use of the Services, Trimble reserves the right to suspend Customer’s access to the Services until proper payment is received by Trimble (including interest as set forth in Section 6.2 (Fees and Payment), as appropriate) or to terminate this Agreement in accordance with Section 7.2 (Termination for Cause). e) In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through Reseller. Unless otherwise elected by Trimble in its sole discretion, Trimble will refund any applicable fee to the applicable Reseller and the Reseller will be solely responsible for refunding appropriate fees to Customer. f) Except as specified in this Section 14.13, Customer’s access to and use of the Services is subject solely to this Agreement and not to any terms on the Reseller Order Form or any other Reseller terms.  No Reseller has authority to modify this Agreement or to make any statements, representations, warranties or commitments on Trimble’s behalf; any such modifications, statements, representations, warranties or commitments will be null and void. 4.14. Digital Millennium Copyright Act. If Customer believes that any content submitted to the Services by another user copies Customer’s work in a manner that constitutes copyright infringement, Customer will provide Trimble’s DMCA administrator the written information specified below, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2):
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that Customer claims has been infringed upon;
  • A description of where the material that Customer claims is infringing is located on the Services;
  • Customer’s address, telephone number, and e-mail address;
  • A statement by Customer that Customer has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  • A statement by Customer, made under penalty of perjury, that the above information in Customer’s notice is accurate and that Customer is the copyright owner or authorized to act on the copyright owner’s behalf.

SOFTWARE END USER LICENSE AGREEMENT
(Trimble SketchUp)

IMPORTANT, READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE OR ACCESS THE SOFTWARE. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN FOURTEEN (14) DAYS OF YOUR INITIAL PURCHASE.

BY AGREEING TO THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE 18 YEARS OLD OR OLDER AND CAPABLE OF ENTERING INTO A LEGALLY BINDING AGREEMENT.

IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

If an executed agreement exists between you and Trimble at any time regarding the Software, the terms of that agreement shall supersede the terms of this Agreement in its entirety. Thus, if you enter into a separate written agreement with Trimble regarding the Software, that agreement (not this one) will control your use of the Software; and further if that agreement is terminated, you will not have the right to use the Software under the terms of this Agreement after termination.

This Software End User License Agreement (“Agreement“) is between Trimble Inc., located at 935 Stewart Drive, Sunnyvale, CA 94085 USA, or the affiliate identified on the Order Form, and its affiliates (“Trimble“) and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user (“you“). This Agreement covers any Software and supporting user or technical documentation provided with the Software (“Documentation“).

1. Definitions.

“Effective Date” means the earlier of the date you sign an Order Form or the date on which the Software is first made available to you.

“Order Form” means any order (which includes without limitation online orders) which is entered into by Trimble (or an authorized Trimble distributor or reseller) and you under which you are provided the Software. Each Order Form for the Software shall be deemed a part of this Agreement. This Agreement is binding on you whether or not you executed an Order Form with Trimble. Order Forms may not vary the terms of this Agreement. Only a written agreement, signed by Trimble (not a Trimble Supplier) may vary the terms of this Agreement.

“Trimble Content” means 3D models, Style files, templates, and other similar materials and content owned by or licensed to Trimble and/or its affiliates whether or not proprietary, which are made available to you through the Software. Trimble Content does not include Google Content (as defined in Section 13.12).

“Software” means the Trimble software product(s) for desktop, mobile or server computing devices (including without limitation, SketchUp Pro and SketchUp Viewer) provided in connection with this Agreement in object code form (or as otherwise specified in any related Order Form), including any SketchUp Extensions bundled and included with any of the foregoing at the time of the initial purchase. “Software” shall also include any releases provided to or purchased by you under any separate support and maintenance agreement you may enter into with Trimble. Unless otherwise noted, the Software, Trimble Content and Documentation are referred to collectively herein as “Software.”

“Third-Party Software” means any third-party software that is provided to you by Trimble under separate terms and conditions.

“Trimble Supplier” means either Trimble or an authorized distributor or reseller of Trimble products or services which has entered into an Order Form with you.

2. License.

2.1. Grant of License.

Subject to all of the terms and conditions of this Agreement, Trimble grants you a non-transferable, non-sublicensable, non-exclusive, worldwide license to use the Software in machine-readable form on any computer and operating system for which it was intended, but solely: (a) in accordance with the Documentation; and (b) in accordance with any additional license term, subscription term or other user, seat, computer, field of use or other restrictions set forth in the applicable Order Form or otherwise specified upon purchase. Subject to the terms and conditions of this Agreement, Trimble grants you a non-transferable, non-sublicensable, non-exclusive license to input, upload, download, reproduce, adapt, make derivative works based on, publicly perform and display, and modify the Trimble Content available through the Software in connection with the normal course of the operation of such Software.

2.2. Installation.

Trimble may make available the Software and Documentation by disk or other media, or for download in electronic form. Trimble shall also provide you with electronic passwords or other enabling mechanisms if necessary to permit the licensed usage of the Software. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date (or, if later, such date on which the Software and license keys are first made available to you). If your Order Form is with a Trimble Supplier, that Trimble Supplier (and not Trimble) is solely responsible for delivery to you and Trimble has no liability for any failure to deliver. If the Software requires license keys to operate as licensed to you, Trimble or the applicable Trimble Supplier will deliver such license keys to you.

2.3. Device Limitations.

Except as otherwise stated below, so long as you have fully paid the applicable license fee, you may install the Software on up to two computers and/or devices at a time. You may transfer the Software from one computer or device to another computer or device if the Software is completely removed and de-installed from the prior computer or device; provided however, the ability to transfer the current version of the Software will terminate if you upgrade to a new version of the Software under an active Support and Maintenance subscription. For enterprise licenses, you may copy and install on your computers or devices for use only by your employees the number of copies of the Software for which you have paid the applicable license fee.

2.4. User Accounts.

2.4.1. Account Creation.

In order to use the Software, you may need to create a valid user account (“User Account”). Currently, you can create a User Account by signing in with a valid Google ID (a username/password combination used to access your Google account) or Trimble ID (a username/password combination issued by Trimble). To sign in using a Google ID, you must authorize Google to share account information with Trimble and you must maintain your Google ID in good standing subject to any separate user terms between you and Google. The authentication information Google provides to Trimble or you provide to Trimble may contain personally identifiable information, which will be handled by Trimble as described below, and we may publicly display the username and profile photo (if any) associated with your Trimble or Google user account. You may not create more than one User Account per individual user.

2.4.2. Account Security.

You are entirely responsible for maintaining the confidentiality of your password and account credentials, and you agree that Trimble may terminate your access to the Software and other services if you fail to do so. Additionally, you are fully responsible for any and all activities that occur under your account. You agree to notify Trimble immediately of any unauthorized use of your account or any other breach of security. Trimble will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.

2.4.3. Your Personal Information.

Personally identifiable information that you may submit for the purpose of receiving products or services or for creating or authenticating your User Account will be handled in accordance with Section 3.4 (Privacy).

2.5. License Restrictions.

You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) copy (except as expressly permitted in this Agreement), modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Trimble; (e) attempt to circumvent or disable the security key mechanism that protects the Software against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (g) use or host the Software in a virtual server environment; (h) merge the Software with any other data, information and content; (i) use the Software other than as expressly permitted by the Agreement, including without limitation for commercial purposes such as redistribution or publication in exchange for a fee or other consideration, advertising, or for use in marketing and promotional materials; or (j) create more than one User Account for any individual user. You acknowledge that you need to obtain a separate distribution license from Trimble in order to distribute or publish the Software or any derivative in any form not expressly permitted in the Agreement.

2.6. Trial Software.

Subject to the terms and conditions of this Agreement, you may choose to use the Software for a trial period of 30 days (or such other period agreed to by Trimble in writing) (the “Trial Period”) , without charge, solely for your evaluation purposes of its functionality. To initiate the trial, you must sign in to a valid User Account and have a trial available to you. The time remaining during the trial will be displayed within the Software. Upon the expiration of the Trial Period, the Software will automatically cease to operate.

2.7. Educational Versions.

If you are a qualified instructor at an accredited educational institution, or you are an enrolled student at an accredited educational institution and use the Software in your classwork, you may use the Software for classroom teaching purposes, and classwork purposes (“Educational Version”). This includes installation and use of the Software in teaching labs at an educational institution, provided that use of the Software is by enrolled students who are engaged in classroom learning activities at the educational institution. However, if you are an employee of an educational institution and your job responsibilities are not those of a qualified instructor, you must purchase a SketchUp Pro commercial license. Educational Versions of the Software are for educational purposes only and may not be used for commercial, professional or other for-profit purposes. For example, but not as a limitation, if you are employed as a member of the professional staff of an educational institution such as the facilities management team, you are considered to be engaged in for-profit activity and you must purchase a SketchUp Pro commercial license. In addition, other terms and conditions may apply to Educational Versions including without limitation, screening or author criteria as may be set by Trimble from time-to-time. Please contact Trimble for additional information. Educational Versions are licensed for a one year term unless specified otherwise in the Order Form. Upon expiration of the one year term, your right and license to use the Educational Version of the Software expires and the Software will automatically become inoperable. Qualified instructors, students and institutions may purchase a license for an Educational Version of the Software annually upon meeting all program requirements described in this section.

2.8. Integrated Services.

The Software may support integrations with certain software or services that are provided by Trimble separately from the Software and/or by third parties (“Integrated Services”). In order for the Software to communicate with such Integrated Services, you may be required to input credentials for the Integrated Services. By enabling use of the Software with any Integrated Services, you authorize Trimble to access your accounts with such Integrated Services to authenticate such integrations. You are solely responsible for complying with any relevant terms and conditions of the Integrated Services and maintaining appropriate accounts in good standing with the providers of the External Services. Trimble does not guarantee that the Software will maintain integrations with any Integrated Services and Trimble may disable integrations of the Software with Integrated Services at any time with or without notice to you. See below and Section 13.12 (Third-Party Software and Content) for additional information and terms and conditions.

2.8.1. Trimble Connect.

You may use Trimble Connect, Trimble’s proprietary cloud-based storage service, to store models and collaborate with others. Your storage of models and any other use of Trimble Connect is subject to the Trimble Connect Terms of Service, available at https://connect.trimble.com/terms_of_service.html or a successor URL.

2.8.2. 3D Warehouse.

You may use Trimble’s 3D Warehouse access 3D models and content for your own use. You may also upload 3D models to share models with other users of the Software. All use of the 3D Warehouse is subject to the 3D Warehouse Terms of Use, available at https://3dwarehouse.sketchup.com/tos.html or a successor URL.

2.8.3. Extension Warehouse.

You may use Trimble’s Extension Warehouse to find and install additional tools, utilities, and/or features to the SketchUp application. All use of the Extension Warehouse is subject to the Extension Warehouse Terms of Use, available at https://extensions.sketchup.com/legal or a successor URL.

2.8.4. SketchUp Community.

You may access and use SketchUp Community, Trimble’s support and discussion forums devoted to SketchUp products, available at http://forums.sketchup.com/ or a successor URL. All access and use of SketchUp Community is subject to the terms set forth at http://www.trimble.com/Corporate/Terms_of_Use.aspx or a successor URL.

3. Software Activation and Metering; Software Updates; Consent to Use of Data; Privacy

3.1. Software Activation and Metering.

Trimble may use your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration, use of or update to the Software, and for validating the authenticity of the license-related data in order to register your Software and protect Trimble against unlicensed or illegal use of the Software.

Trimble may include in the Software, a built-in license metering technology that helps you avoid any unintentional violation of this Agreement. You acknowledge that such metering module may send Trimble on-line notification confirming use of the Software. You will not disable, modify or interfere with the operation of any such module. Trimble may use your internal network for license metering.

Trimble will use information obtained per this Section 3.1 only for the purpose stated in this Section 3.1.

3.2. Software Updates.

The Software may notify and inform you when Updates to the Software are available. The Software allows you to request and receive Updates automatically, and does so by default, though you have the choice to disable this feature. Likewise, you will need to take action to download and install the software on your computer as this action does not happen automatically. “Updates” include maintenance releases, bug fixes, and minor updates to your current version of the Software.

3.3. Consent to Use of Data.

Trimble may, directly or through third parties, collect and use technical information, information about you, and/or data that you provide in relation to your use of the Software or the provision of maintenance and technical support for the Software. Trimble will not use such information in a form that personally identifies you except to the extent necessary to provide maintenance and technical support, or to enhance your use of the Software including requesting feedback on the Software, providing critical updates, notifications regarding pre-release Software, or to improve the Software. You acknowledge that, to the extent permitted by law, Trimble assumes no responsibility for storage of your data or information.

3.4. Privacy.

Protecting users’ privacy is very important to Trimble. You acknowledge and agree to the terms of (1) the Trimble’s Privacy Policy, located at http://www.trimble.com/privacy.aspx or a successor url, and (2) the SketchUp Privacy Policy Supplement, located at https://www.sketchup.com/privacy-notice or successor url, each of which may be updated from time to time and without notice. Information collected by Trimble in connection with your license and use of the Software may be stored and processed in the United States or any other country in which Trimble or its agents maintain facilities. Accordingly, by using the Software you consent to any transfer of such information outside of your country. You acknowledge and agree that Trimble may access, preserve, and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam); (d) respond to user support requests; or (e) protect the rights, property or safety of Trimble, its users, and the public. Trimble will not be responsible or liable for the exercise or non-exercise of rights under this Agreement.

4. Ownership.

Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Trimble and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.

5. Payment.

You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Order Form. All payments shall be made in advance prior to delivering a Software license, unless otherwise specified in writing by Trimble or the applicable Trimble Supplier. Except as expressly set forth herein, all fees are non-refundable once paid. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Trimble or the Trimble Supplier).

6. Term of Agreement.

6.1. Term.

This Agreement is effective as of the Effective Date and expires at such time as all license and subscriptions hereunder have expired in accordance with their own terms (the “Term”). You may also terminate this Agreement at any time by permanently deleting the Software in its entirety. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). If you have entered into a separate written agreement with Trimble which governs the Software and that agreement is terminated, then this Agreement automatically terminates and you shall no longer have any right to use the Software. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. For clarity, even if you have entered into an Order Form with a Trimble Supplier, you agree that Trimble is a third party beneficiary to that Order Form and has the right to terminate this Agreement as set forth in this Section 6 (Term of Agreement).

6.2. Termination.

Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to Trimble in writing.

6.3. Survival.

Sections 2.5 (License Restrictions), 4 (Ownership), 5 (Payment), 6.3 (Survival), 7 (Warranty Disclaimers), 9 (Indemnity), 10 (Limitation of Remedies and Damages), 11 (Confidential Information), 12 (Export Compliance; Compliance with Laws), and 13 (General) shall survive any termination or expiration of this Agreement.

7. Warranty Disclaimers.

THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS.” NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TRIMBLE MAKES NO WARRANTY (i) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (iii) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, (iv) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, AND (v) REGARDING THE RESULTS OR OUTPUT OF THE SOFTWARE. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. TRIMBLE MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY COMPONENTS OF THE SOFTWARE AND TRIMBLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TRIMBLE. For the avoidance of doubt, Trimble does not assume and will not have any liability arising from events beyond Trimble’s control or the control of its subcontractors, other developers, business partners or licensors, including events such as acts of God, acts of any governmental entity, acts of a public enemy, strikes, natural disasters, or failure or diminishment of power or telecommunications or data networks or services.

8. Support & Maintenance.

Trimble provides the support and maintenance services for SketchUp Pro for an additional fee pursuant to its then-current standard service terms (currently available here). If you do not have an active support and maintenance subscription, some features of the Software may not be available (e.g., add location, mapping, Integrated Services, etc.).

9. Indemnity.

You agree to hold harmless and indemnify Trimble and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your misuse of the Software or your violation of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Trimble will provide you with written notice of such claim, suit or action.

10. Limitation of Remedies and Damages.

  • 10.1. NEITHER TRIMBLE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
  • 10.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TRIMBLE AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO TRIMBLE UNDER THIS AGREEMENT.
  • 10.3. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMERGENCY, MISSION CRITICAL OR OTHER STRICT LIABILITY OR HAZARDOUS ACTIVITIES (“HIGH RISK ACTIVITIES“). TRIMBLE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE SOFTWARE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND AGREE THAT TRIMBLE WILL HAVE NO LIABILITY FOR USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TRIMBLE FOR ANY DAMAGES, LIABILITIES OR OTHER LOSSES RESULTING FROM SUCH USE.
  • 10.4. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. Confidential Information.

Any software, documentation or technical information provided by Trimble (or its agents) shall be deemed “Trimble Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Trimble Confidential Information. You acknowledge that disclosure of Trimble Confidential Information would cause substantial harm to Trimble that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Trimble shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

12. Export Compliance; Compliance with Laws.

12.1. Export Compliance.

You are responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Software. Without limiting the generality of the foregoing, you hereby acknowledge and agree that the Software and any associated Confidential Information are subject to the U.S. Export Administration Regulations and were exported from the United States, if at all, in accordance with those regulations. In the exercise of its rights, and the performance of its obligations under this Agreement, you shall comply strictly with all U.S. export control laws and regulations applicable to the Software, including without limitation the U.S. International Traffic In Arms Regulations (ITAR) (22 C.F.R. Parts 120-130, as amended) and the U.S. Export Administration Regulations (15 C.F.R. Parts 730-774, as amended). You will also comply with all applicable economic sanctions and trade embargo laws, rules and regulations as promulgated by the U.S. Treasury Office of Foreign Assets Controls (OFAC) and Bureau of Industry and Security (BIS). You shall not export, re-export, transfer, divert or disclose any such Software, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof. Your obligations under this paragraph will survive the termination of this Agreement for any reason whatsoever. You will defend, indemnify and hold Trimble harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph. Your failure to comply with any term of this paragraph will constitute a material breach of this Agreement and entitle Trimble to immediately terminate this Agreement in addition to any other remedy available at law or equity.

12.2. Compliance with Laws.

You are responsible for complying with all applicable laws, regulations and codes of practice in your use of the Software and any results derived from the Software.

13. General.

13.1. Assignment.

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Trimble may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Trimble’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Trimble’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.

13.2. Severability.

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

13.3. Governing Law; Jurisdiction and Venue.

  • 13.3.1. Unless you obtained this Software in Canada or the European Union, this Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. In such case the jurisdiction and venue for actions related to the subject matter hereof are the State of California and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
  • 13.3.2. If you obtained this Software in Canada, this Agreement is governed by the laws of the Province of Ontario, Canada, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case jurisdiction and venue for actions related to the subject matter hereof are the courts of the Judicial District of York, Province of Ontario and both parties hereby submit to the personal jurisdiction of such courts.
  • 13.3.3. If you obtained this Software in the European Union, this Agreement is governed by the laws of The Netherlands, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case jurisdiction and venue for actions related to the subject matter hereof are the courts of Amsterdam, The Netherlands and both parties hereby submit to the personal jurisdiction of such courts.

13.4. Notices and Reports.

Any notice or report hereunder shall be in writing. If to Trimble, such notice or report shall be sent to Trimble at the address above to the attention of “Legal Department”. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

13.5. Amendments; Waivers.

No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

13.6. Entire Agreement; English Language Version.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any Order Form or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. The section headings in this Agreement are for convenience only and have no legal or contractual effect. The official canonical version of this Agreement can be found online at http://www.sketchup.com/license/f/sketchup. The official language of these Terms of Use is English. If there is a conflict between the English language version and any translation, the English language version will control.

13.7. Independent Contractors.

The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

13.8. Force Majeure.

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost.

13.9. Audit.

Upon Trimble’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). Trimble, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Software to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use and for unpaid license fees.

13.10. Publicity/Press Releases.

You shall not issue or make any press releases, publications or public references regarding your relationship with Trimble unless you first inform Trimble of such proposed publicity, submit all proposed publicity materials to Trimble for review and obtain Trimble’s prior consent in writing, in each particular instance.

13.11. Government End-Users.

The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.

13.12. Third-Party Software and Content.

(a) If designated in the Documentation, the Software may contain or be provided with certain Third-Party Software (including Open Source Software or other software which may be made available to you in source code form). Such Third-Party Software is not licensed hereunder and is licensed pursuant to the terms and conditions (“Third-Party License“) indicated in the Documentation, via a click through acceptance of terms and conditions, and/or on the Third-Party Software. Except as may be set forth in the Third-Party License, neither Trimble nor Trimble Suppliers offer any warranty in connection with any Third-Party Software and neither Trimble nor Trimble Suppliers shall be liable to you for such Third-Party Software. “Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.

(b) The Software may include map content and other elements provided by DigitalGlobe, Inc. Accordingly, your use of such elements of the Software is also governed by DigitalGlobe, Inc.’s End User DOWNLOAD License, available at https://www.digitalglobe.com/legal/internal-use-license, and you agree to be bound by such terms.

(c) The Software may include geocoding functionality and other elements provided by HERE Global B.V. and its affiliates and suppliers (collectively, “HERE”). Accordingly, your use of such elements of the Software is also governed by HERE’s Service Terms, available at http://here.com/services/terms and HERE’s privacy policy, available at http://here.com/privacy/privacy-policy. If you are a U.S. Government end user or other entity seeking or applying rights similar to those customarily claimed by the U.S. Government, the following additional Notice of Use applies with respect to the HERE elements of the Software:

	NOTICE OF USE
	CONTRACTOR (MANUFACTURER/SUPPLIER) NAME: HERE
	CONTRACTOR (MANUFACTURER/SUPPLIER) ADDRESS: 425 W. Randolph St., Chicago, IL 60606

The HERE elements of the Service are collectively commercial items as defined in FAR 2.101 and are subject to the

	Agreement under which the HERE elements were provided.
	© 1987-2018 HERE – All rights reserved

(d) Additional applicable third party terms and conditions with respect to the Software (including, without limitation, any Open Source Software and Third-Party License) are listed at https://www.sketchup.com/third-party-attribution.

SketchUp End User License Agreement, Version “F”, January 2019

END USER SOFTWARE LICENSE AGREEMENT

CHAOS SOFTWARE LTD

 

END USER LICENSE AGREEMENT

 

PLEASE READ CAREFULLY.

The Product is licensed to You under the condition that You accept any and all terms hereof

This End User License Agreement (“Agreement”) is a legally binding agreement between Chaos Software LTD, Mladost-1A, block 548 entrance B, 2nd floor, Sofia 1729, Bulgaria, (“Company”), acting on its own behalf or on behalf of an authorized by the Company reseller, and you (either you personally if you have acquired the Product, as defined below, for yourself, or another legal entity which has acquired the Product and for which you warrant that you have the capacity and authority to bind to this Agreement) (“You” or “Licensee”).

The Product shall be authorized by a compatible license server (an ancillary license administration software used by the rendering or simulation software described hereunder, to prevent usage of unlicensed versions or copies of such rendering or simulation software, hereinafter referred to as “License Server”). The terms and conditions for the License Server shall be arranged in a separate agreement attached for your convenience as an integral part hereto.

By ticking the “I accept” checkbox or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Product as defined below, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or another agent of such other entity with the right, power and authority to act on behalf of such other entity. By accepting this Agreement you also accept the terms and conditions for the License Server, an inseparable part hereto.

If You do not agree to any or all of the terms in the Agreement and/or the terms and conditions for the License Server, or any other applicable terms and conditions referred to as part of our relationships and/or a condition precedent for their validity, You must not download, agree to the terms and conditions, click or check a relevant button, or perform any similar act of acceptance, and/or do not use the Product.

Definitions

“Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).

“Use” or “Using” means to access, download, execute, install, copy or otherwise benefit from using the functionality of the Product in accordance with this Agreement and/or the documentation.

“Effective Date” means the date on which You accept this clickwrap Agreement or otherwise access, download, execute or use the Product, whichever occurs first.

“Product”, as referred herein consists of (some, either of the following or all of them):

  • the particular (a) V-Ray rendering OR (b) Phoenix fluid simulation software You chose to get licensed for, as may be specified and designated in the Product section of the Company’s web portal;
  • VRayScannedMtl and/or BRDFScanned plug-ins (hereinafter “VRscans plug-in”) (optional); a demo version (without GUI support and with watermarks prints on materials) may be included; a complete non-restricted version of VRscans plug-in is accessible with a separate license, as defined below and shall be acquired separately;
  • any other accompanying software, plug-ins and any updates or upgrades to the or simulation software that Licensee may install from time to time;
  • any associated files, documentation and materials, including but not limited to installation files, binary executable files, library files, configuration files and documentation files.

“Trial License” means a version of Product to be used only to review, demonstrate and evaluate the Product. The Trial License may either have limited features, and/or its free use might be limited in time.

“Trial Period” is a limited period in which Licensee is entitled to use the Product free of charge. Subject to the terms and conditions hereof, except if otherwise provided elsewhere, Company grants to Licensee the license specified below to evaluate the Product only for a term of thirty (30) days from the date Licensee downloads the Product. Trial Period may either be found in this Agreement, on Company designated web site, in the Product user-guide, or in Company’s specific instructions, in this order of prevalence.

1. LICENSE TYPE

License Type will be clearly indicated in the relevant Product section and/or supporting documentation identifying the Product as one of the following types:

a. Advanced or Commercial full, regular version of the Product for which the license is granted under the general terms of this Agreement, in return for a License fee;

b. Academic or Educational is a License limited to Your educational purposes only. Please refer to Section 18 below for further details;

c. Trial is a license to use the Product for the sole purpose to try it before starting to pay license fees. Trial versions of the Product available for Trial License usually contain all the functionality of the Advanced or Commercial regular version, but can only be used for a limited time. Upon Company’s sole discretion the Trial License version might be with reduced functionality, not allowing you to utilize it fully, it might be marked with appropriate water mark, or otherwise subject to limitations. In case of Trial License Type, special terms and conditions apply (please refer to Section 15, Trial License below), which in case of conflict with the other terms and conditions stipulated hereunder, will prevail to the extent of such conflict;

d. BETA might be available to the public or only a group(s) of users selected upon Company’s discretion, for evaluation or beta copies for which Company does not charge a license fee, the requirement to pay license fees does not apply, and additional restrictions on your use of the Product may apply. Please refer to Section 16 below for further details;

e. NFR (Not for resale) is a designation for the Product that gives right only for testing with the understanding that you will not resell the Product. NFR ensures You complete, promotional copies of the Product, generally not eligible for upgrades when they become available, and may not include technical support, whenever offered by Company. Product marked with NFR legend is identical in function and packaging to the retail version of the same Product. They are not licensed for resale, and so no license for general use is granted. Please refer to the Section 17 below for further details;

f. Render Service Provider where a license to the Product is granted to operators of render farms, i.e. high performance computer systems, e.g. computer clusters, built to render computer-generated imagery, under specific conditions stipulated in additional terms and conditions concluded between you and Company.

While you are licensed any License Type, other than regular Advanced or Commercial License, regardless anything to the contrary, under such License Type additional limitations on your use of the Product may apply. NOTE: such as the Agreement may be time-limited for a fixed period expiring automatically on a date specified, prohibition may be imposed to use the Product for commercial purposes, demonstration purposes, testing and evaluation of the Product and/or using the Product to design, create and test your own works (“Licensee’s Works”), considering the general restrictions and limitations stipulated below. In case of time-limited License Type, You may request renewal of the Agreement; however the Company keeps the right to refuse such renewal. In case the renewal is confirmed by the Company, the Agreement is deemed automatically extended for the same period and under the same terms and conditions as agreed hereby.

NOTE: THIS AGREEMENT SHALL APPLY TO ALL COMPANY’S SOFTWARE PRODUCTS, UNLESS OTHERWISE PROVIDED FOR IN THE SPECIFIC LICENSE TERMS AND CONDITIONS UNDER WHICH А COMPANY’S SOFTWARE PRODUCT IS MADE AVAILABLE FOR USE, FOR EXAMPLE, THIS AGREEMENT DOES NOT APPLY TO FREEWARE LICENSE TYPE SOFTWARE, OR SOFTWARE NOT DESIGNATED UNDER THE DESCRIPTION OF PRODUCT STIPULATED IN THE PREVIOUS SECTION, WHICH IS LICENSED UNDER SEPARATE TERMS AND CONDITIONS.

2. GRANT OF LICENSE

2.1. Subject to Your full payment of the applicable license fees, if any, continuous compliance with this Agreement and the restrictions agreed between You and the Company, Company grants hereby, and You accept, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license:

a. to install the Product on as many of Your computers as You wish to, provided that You may not, as clearly stipulated hereunder in greater details, at the same time use the Product on more computers than the number of the available licenses authorized by the License Server;

b. to load the Product, to execute it, to use it, to transmit it to a distance, to keep it on a computer storage device;

c. to create a back-up copy of the Product, if that is needed for the specific use that the Software has been acquired for and You keep all copyright notices and other marks of ownership on each copy, or partial copy, of the Product. The back-up copy is for Your own internal use only and cannot be provided to any third parties;

d. to benefit commercially from using the Product in the authorized manner considering the restrictions in contained hereunder or in another agreement by and between the parties hereto;

e. SCOPE: to use the Product within the scope of the License Type, as defined below, and to use up to the number of concurrent licenses of the Product as have been licensed and paid for at any one time or for the Metered Access Service, as defined below, considering the respective applicable restrictions. The Product is in use for the duration that it keeps engaged a license from the license server;

f. TERRITORY: to use the Product in the country or authorized territory where You acquire the Product from an authorized reseller, unless otherwise specified by the Company or by applicable law. In case You are an individual, You may use the Product on the territory where You currently reside or temporarily stay at. In case the Product is acquired from Your head office on behalf of Your branch, the Product may be used in the territory or region where the branch is located and always provided that You have acquired the license from a Company’s authorized reseller. the Product may be transferred to another country only upon Company’s prior written approval.

g. whenever you do not choose regular Advanced / Commercial license, but You wish to be granted another specific License Type generally made available by the Company, then( unless otherwise stipulated in the Product section and/or supporting documentation) to use the Product strictly for non-commercial purposes such as (not limited to) training and demonstration purposes, testing, trial and evaluation of the Product and/or use the Product to design, create and test Your own works (“Licensee’s Works”) considering the general and specific restrictions and limitations stipulated by the Company hereunder or elsewhere to that matter.

h. to use the Product as may be additionally restricted and limited by the License Type you choose, in this Agreement, the Product section and/or supporting documentation.

2.2. Available Licenses (depending on the Product You choose to be licensed) may be some, either of the following or all of them:

2.2.1. For the Product (except VRscans plug-in):

a. Workstation license. One Workstation license entitles You to use the graphical user interface (GUI) of the Product (except VRscans plug-in) only on one computer or another technical device, respectively, at any one time and You may use only one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the GUI license is used, or on another machine in the network.

b. Application SDK End User license. If the Application SDK is included in the installation of Your Product, one Application SDK End User license may be included which entitles You to use the Product (except VRscans plug-in) only on one computer or another technical device, respectively, at any one time and You may use only one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the Application SDK End User license is used, or on another machine in the network.

c. Universal Render node. One Universal Render node license entitles You to use one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time or by way of Metered Access Service, as defined below.

2.2.2. For VRscans plug-in:

a. VRscans GUI license. One VRscans GUI license entitles You to use the graphical user interface (GUI) of VRscans plug-in only on one computer or another technical device, respectively, at any one time and Licensee may use only one running copy of VRscans plug-in for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the GUI license is used, or on another machine in the network.

b. VRscans Render node. One VRscans Render node license entitles You to use one running copy of the VRscans plug-in for local, distributed or network frame-by-frame rendering at any one time.

2.2.3. Except for the cases of Metered Access Service as defined below, the term of each of the licenses, acquired under the Agreement, is indicated in the expiration section on the License Server status web page, and/or hereunder.

2.2.4. For Phoenix Products:

a. GUI license. One GUI license entitles LICENSEE to use the graphical user interface (GUI) of the Product only on one computer or another technical device, respectively, at any one time.

b. Simulation license. One simulation license entitles LICENSEE to use one running copy of the Product for local or network fluid simulation at any one time.

3. LIMITATIONS/RESTRICTIONS

3.1. You may NOT:

a. make copies or otherwise reproduce the Product, except for installing it on Licensee’s computers and for back-up copies as specified above;

b. use the Product to develop a new software product with the same or similar main function;

c. redistribute or give the Product away in any way (lease, rent, loan, charge, donate, exchange, share or other) to any third parties. You are not allowed to sell (except if permitted by applicable law), transfer, assign or grant access to the Product to any third party and You ensure that Product (accessed either locally or remotely) is used only by You personally, in case You are an individual, or by Your employees, on Your behalf, in case You are a legal entity, and You are responsible for compliance with the terms of this Agreement by its employees. You shall notify Company in a timely manner if You becomes aware of any unauthorized use of the whole or any part of the Product by any third party. The notification shall be made to: [email protected];

d. use the Product for commercial rendering services that provide third parties with contracted/on demand rendering or simulation services, unless you acquired a render-farm license;

e. create any derivative works or make any translation, adaptation, arrangement and any other alteration of the Product or make any reproduction, distribution, communication, display or performance to the public of the results of such acts;

f. adapt or reverse compile or reverse engineer or otherwise tamper the whole or any part of the Product;

g. remove or alter any copyright or other proprietary notice from the Product;

h. use any of the Product’s components, files, modules, audio-visual content, or related licensed materials separately from the Product;

i. use the Product in a manner that infringes any third party’s copyrights or any other rights;

j. participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to Company or the Product;

k. use a number of concurrent users of the Product that exceed the number of licenses acquired. Additional licenses can be added from time to time as such licenses are acquired;

l. use the Product or Licensee’s Works for commercial purposes, unless you acquired Advanced / Commercial or Render Service Provider License;

m. use the license acquired hereunder by way of Metered Access Service, unless administered by a Company certified provider of Metered Access Service. “Metered Access Service” shall mean making the Product available to end users for on-demand metered use under the licenses granted hereby by Company. The Licensee may not exceed the limit of on-demand metered use acquired under the Metered Access Service.

4. PROTECTION MECHANISMS

4.1. The Product is protected through schemes or devices to control access and permit only the number of licenses acquired to be in use at one time and to prevent usage of unlicensed copies of the Product (“Protection Mechanism”). Protection Mechanisms may include, not limited to a hardware lock (“Dongle”), license server, software license authorization key, and/or any other legally permitted technology as may be implemented from time to time by Company.

4.2. Depending on your License Type, the Product may include additional outcome restrictions including, but not limited to: resolution limitations, watermarks prints, etc.

4.3. You may not take any steps to avoid or defeat the purpose of any Protection Mechanism or to install or use the Product in a manner that circumvents or interferes with the operation of the protection mechanisms.

5. PRODUCT DELIVERY. COLLATERAL PRODUCTS

5.1. The Company will deliver the Product electronically, You have to register and download the Product from the Company’s official website. In order to receive the Software license authorization key, you have to generate a provisional code from the machine where the License Server is installed, following the instructions in the furnished documentation and to provide that provisional code to the Company. The Company will further provide the respective Software License authorization key.

5.2. The Company does not warrant authenticity and the Company may not provide any warranty for products downloaded elsewhere.

5.3. The Product may be accompanied, may contain or the Company may provide from time to time other own and/or third party’s software, drivers, data, documents, materials, etc. (“Collateral Products”). Collateral Products may include, be subject to or provided in accordance with other terms in addition to or different from the terms set forth in this Agreement. Unless such terms are included or referenced Collateral Products are subject to this Agreement. In case such terms apply You agree to comply with them.

5.4. You will take sole responsibility for acquiring and complying with any licenses that may be necessary to use or to use in a different way any third party’s software, data, documents or other materials. You acknowledge and agree that Company has no responsibility for, and makes no representations or warranties regarding, such third party’s software, data, documents or other materials or Your use of such third party’s software, data, documents or other materials.

6. CONFIDENTIALITY AND NON-DISCLOSURE

6.1. The Company and You acknowledge and agree that during the Term of or in relation with this Agreement either party (the “Disclosing Party”) may disclose to the other party (the “Recipient”) certain business and/or technical information of a confidential and proprietary nature. “Confidential Information” means any proprietary information, trade secret (organization, structure, object or source code of the Product, etc. any API, SDKs, libraries, reference, sample code etc.) or other non-public information that Disclosing Party delivers or communicates to the Recipient or to which the Recipient otherwise gains access to under this Agreement;

6.2. Confidential information may be used only internally and only in conjunction with and for Recipient’s own authorized internal use.

6.3. Recipient shall maintain the confidentiality of the Disclosing Party’s Confidential Information and may not disclose, distribute or otherwise provide it to third parties, except in cases where such information is required by applicable law or court order and a prompt advance notice to Disclosing party has been sent to enable the latter to seek a protective order or otherwise prevent such disclosure.

7. OWNERSHIP

7.1. You acknowledge and agree that possession, installation, or use of the Product does not transfer to You any title to the Company’s intellectual property. The Company and its licensors own and retain title to and ownership of, and all other rights with respect to, the Product, THE Collateral Products, the Confidential Information and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.

7.2. You are granted only such rights as expressly described in the various terms and conditions accepted hereby either directly or by reference, and You have no other rights, implied or otherwise.

7.3. APIs: You acknowledge and agree that any API information and development materials provided (a) are confidential and proprietary to the Company, (b) may not be distributed, disclosed or otherwise provided to third parties, (c) may be used only internally and only in conjunction with and for your own authorized internal use of the Product to which the API information or development materials relate, such as the development and support of applications, modules and components to operate on or with the Product, and (d) may only be Installed on the same Computer(s) where the Product is permitted to be Installed.

8. PRIVACY (IN CASE LICENSEE IS AN INDIVIDUAL)

8.1. You acknowledge and agree that in order to acquire and use the Product, You (and third parties acting on Your behalf) may have to provide, and the Company and its resellers (and third parties acting on behalf of the Company and its resellers) may acquire, certain personal information and data with respect to You. By accepting the Agreement You hereby consent to the Company processing such information and data. The Company is a data administrator and as such the Company takes appropriate technical measures to protect Your personal information and data, if any. Personal information and data provided to the Company in connection with this Agreement may be processed in Bulgaria or any other country in which the Company or its subsidiaries, affiliates or resellers maintain facilities. By acquiring the Product, You consent to the transfer of such information outside of Your country under terms and conditions which ensure the fair protection of data subject’s rights. In any case such personal information and data will be processed only for the purposes of this Agreement and for the time it is effective, unless the applicable laws provide otherwise, in which case the wider limits imposed or implied by law will prevail. Any premature revocation or repudiation of data subject’s consent entitles the Company to immediately terminate any associated rights and/or obligations which the Company at its free discretion may consider will not be able to further fulfil.

8.2. Personal information and data may be processed only for the performance of this Agreement, for administration and authentication purposes necessary for the execution of the Agreement, compliance with a legal obligation or to respond to support inquiries.

8.3. The Company may provide personal information and data to its subsidiaries and affiliates, resellers or partners in connection with the provision, maintenance, administration or usage of the Product. Personally identifiable information and data will not be disclosed to external third parties not described in Company’s Privacy Policy without Your consent. Company may, however, be required, by law or otherwise, to provide personal information and data to authorized organizations. Your account is password protected and all information is on a secure server, which only a limited number of the Company’s employees can access. If You suspect that someone else knows Your password, or is using it, You shall inform the Company and change Your password immediately.

8.4. The Company will keep Your personal information and data for as long as necessary to fulfil the above purposes or as provided for by law. You may modify and correct incomplete or inaccurate data at any time by notifying the Company of any change to [email protected]. Any request for deletion of Your personal data may result in immediate termination of this Agreement and Your right to use the Product, which will become effective upon expiration of Your prepaid period. Company may revise from time to time its Privacy Policy, and its most up to date version You can find on https://www.chaosgroup.com/privacy

9. LIMITED WARRANTY

9.1. YOU MAY, WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ACQUISITION, RETURN THE PRODUCT TO THE COMPANY OR ITS AUTHORIZED RESELLER FROM WHICH THE PRODUCT WAS ACQUIRED, FOR A REFUND NOT EXCEEDING THE RELEVANT LICENSE FEE PAID, IF ANY.

9.2. THE COMPANY WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE WHEN YOU ACQUIRE THE PRODUCT (WARRANTY PERIOD), THE PRODUCT WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE CORRESPONDING DOCUMENTATION WHEN PROPERLY USED. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE OR SUPPORT OR ANY OTHER SERVICES NOT PART OF THE PRODUCT, WHICH THE COMPANY, AT ITS SOLE DISCRETION, MAY PROVIDE FROM TIME TO TIME, AND WHICH ARE MADE AVAILABLE ON AN AS-IS BASIS WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, NOT LIMITED TO PRE-RELEASED SOFTWARE, UNSTABLE VERSIONS, BETA, TRIAL, EVALUATION, OR NOT-FOR-RESALE COPIES, ANY SOFTWARE MADE AVAILABLE BY THE COMPANY FOR FREE.

9.3. THIS LIMITED WARRANTY IS VOID IF FAILURE IN PERFORMANCE OR DEFECT OF THE PRODUCT RESULTED FROM YOUR NEGLIGENCE, ABUSE, MISUSE, AMENDMENT OR ATTEMPTED AMENDMENT OF THE PRODUCT FORM THIRD PARTY OTHER THAN THE COMPANY, ACCIDENT, IMPROPER OR UNAUTHORIZED USE OF THE PRODUCT OR MATERIAL BREACH OF THIS AGREEMENT. ALL WARRANTY CLAIMS MUST BE MADE WITHIN THE WARRANTY PERIOD TO THE RESELLER FROM WHICH YOU ACQUIRED THE PRODUCT OR TO THE COMPANY, ALONG WITH PROOF OF ACQUIREMENT.

9.4. THE ENTIRE LIABILITY OF THE COMPANY RELATED TO ANY WARRANTY CLAIM AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER ANY WARRANTY WILL BE LIMITED TO EITHER, AT THE COMPANY’S DISCRETION, (I) TO USE REASONABLE EFFORTS TO CORRECT DEFECTS OR WORK AROUND ERRORS, PROVIDED THAT YOU MAKE AVAILABLE TO MAXIMUM EXTENT POSSIBLE ALL THE INFORMATION THE COMPANY MAY NEED TO RECREATE AND CORRECT THE DEFECT OR FAULT OR IF SUCH EFFORTS FAIL OR ARE UNPRACTICAL (II) TO REFUND THE LICENSE FEES, IF ANY, PAID BY YOU AND TERMINATE THIS AGREEMENT. SUCH REFUND IS SUBJECT TO THE RETURN, DURING THE WARRANTY PERIOD, OF THE PRODUCT. THE LIMITED WARRANTY SET FORTH GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER APPLICABLE LAW. COMPANY DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.

10. DISCLAIMER

10.1. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF, AND LICENSEE ACKNOWLEDGES AND AGREES THAT COMPANY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, TERMS, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (WHETHER BY STATUTE, LAW, CUSTOM, USAGE OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NONINFRINGEMENT. THE FOREGOING LIMITED WARRANTY IS FURTHER NOT ENLARGED OR OTHERWISE AFFECTED BY COMPANY’S RENDERING OR ANY SUPPORT SERVICES OR TECHNICAL OR OTHER ADVICE OR COMMUNICATION IN CONNECTION WITH THE PRODUCT OR ITS USE. WITHOUT LIMITING THE FOREGOING DISCLAIMER, COMPANY DOES NOT WARRANT THAT PRODUCT WILL MEET LICENSEE’S EXPECTATIONS, THAT THE PERFORMANCE OR OUTPUT OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE NOR THAT DEFECTS OR FAULTS WILL BE CORRECTED. THE PRODUCT IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING OF PHYSICAL PROTOTYPES FOR PRODUCT STRESS, SAFETY AND UTILITY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY A CONTRACTUAL RESTRICTION.

10.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY TERMS AND CONDITIONS AGREED TO HEREBY, EITHER DIRECTLY OR BY REFERENCE, THE COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCT, AND THAT THE COMPANY WILL CORRECT ALL DEFECTS. THE USE OF THE PRODUCT IS AT USER’S SOLE RISK. UNLESS THE COMPANY SPECIFIES OTHERWISE, IT PROVIDES THIRD PARTY PRODUCTS WITHOUT WARRANTIES OF ANY KIND. HOWEVER, THEIR RESPECTIVE MANUFACTURERS, DEVELOPERS, SUPPLIERS, OR PUBLISHERS MAY PROVIDE THEIR OWN WARRANTIES.

10.3. SPECIFIC DISCLAIMER APPLICABLE ONLY TO LICENSE TYPES, SUCH AS TRIAL, ACADEMIC, BETA, NFR, DEMO, LABS OR PRE-RELEASE, OR MADE AVAILABLE AS “FREE” IN OTHER TESTING MODE, OR WITHOUT REQUIREMENT OF PAYMENT, ETC., FOR WHICH THE LIMITED WARRANTY AND THE DISCLAIMER IN THE PREVIOUS SECTIONS DO NOT APPLY: IT IS UNDERSTOOD THAT THE PRODUCT, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCT, ANY SOFTWARE OR SUPPORT OR OTHER SERVICES ARE MADE AVAILABLE ON AN AS-IS BASIS WITHOUT ANY WARRANTIES OF ANY KIND AND COMPANY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, TERMS, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (WHETHER BY STATUTE, LAW, CUSTOM, USAGE OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT PRODUCT WILL MEET LICENSEE’S EXPECTATIONS, THAT THE PERFORMANCE OR OUTPUT OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE NOR THAT DEFECTS OR FAULTS WILL BE CORRECTED. THE PRODUCT IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING OF PHYSICAL PROTOTYPES FOR PRODUCT STRESS, SAFETY AND UTILITY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY A CONTRACTUAL RESTRICTION.

11. LIMITATIONS OF LIABILITY

11.1. IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE (DIRECTLY OR INDIRECTLY) TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING, NOT LIMITED TO ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE DAMAGES OR DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS OR DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. YOU ACKNOWLEDGE AND AGREE THAT IN ANY EVENT THE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS ARISING OUT OF OR IN CONNECTION TO THIS AGREEMENT AND ANY COMPANY’S PRODUCT OR SERVICE WILL BE LIMITED, EXCEPT FOR REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, TO THE AMOUNT PAID, IF ANY, BY YOU FOR SUCH PRODUCT OR SERVICE, EVEN IF THAT AMOUNT MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE REMEDY CLAIMED. COMPANY DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.

12. TERM AND TERMINATION

12.1. The Agreement is not limited with any term and is effective until terminated, unless, as of the time the Product is acquired, the Agreement is time-limited with a fixed expiration period as may be specified on the License Server webpage, in the relevant Product section and/or supporting documentation and/or elsewhere publicly available with clear and disambiguous language.

12.2. The term of each of the licenses, acquired under the Agreement, is indicated in the expiration section on the License Server status web page.

12.3. You may terminate the Agreement at any time by returning and/or destroying the Product, related documentation and all copies thereof.

12.4. The Agreement will terminate immediately without notice from the Company if You fail to comply with any provision of the Agreement.

12.5. Upon the termination of the Agreement for whatsoever reason, You must cease all use of the Product and destroy all copies, full or partial, of the Product.

12.6. Sections concerning LIMITATIONS/RESTRICTIONS, CONFIDENTIALITY AND NON DISCLOSURE, OWNERSHIP, PRIVACY, LIMITED WARRANTY, DISCLAIMER, LIMITATIONS OF LIABILITY, and OTHER PROVISIONS will survive the termination of this Agreement, howsoever caused, and this will not imply or create any continued right for You to use the Product or any part of the Product after termination of this Agreement.

13. OTHER PROVISIONS

13.1. This Agreement, including the formation, interpretation, breach or termination thereof, will be governed by and construed in accordance with the laws of the Republic of Bulgaria, without regard to its conflict of law rules and principles. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement. The parties to this Agreement shall each use commercially reasonable efforts to settle any dispute, controversy or claim arising out of or relating to this Agreement. If no solution is achieved within sixty (60) days of a party’s written notice of a dispute, You agree that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the for resolution to the Court of Arbitration of the Bulgarian Chamber of Commerce and Industry in Sofia, Bulgaria, and be resolved, enforced and further executed in accordance with court rules then in effect and any other laws then in force throughout the Republic of Bulgaria, except that if You are an individual or for any other reason arbitration may not apply to You, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the competent court in Pleven, Bulgaria, and subject to appeal before the relevant appeal court and court of cassations. The parties to this Agreement waive any other venue to which either party might be entitled by domicile or otherwise. Nothing in the foregoing will prevent Company from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur. You will be considered to have received the Product and subscribed to a service based on the governing law agreed hereunder, regardless of where the Product and the service are delivered or accessed. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Company’s prior written consent, which may be withheld at Company’s sole and absolute discretion, and any unauthorized purported assignment by You will be void. You acknowledge and agree that Company may assign or sub-contract any of its rights or obligations under this Agreement.

13.2. In the event any of the terms of the Agreement is declared void because it conflicts with the applicable law, the rest of the terms and the Agreement as a whole will remain in full effect. Such invalid term will be superseded by the legal provisions.

13.3. Any amendment or modification of the Agreement shall only be made by an additional agreement made in writing between the parties (annex) and signed by both of them.

13.4. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.

13.5. The Company will not be liable for any loss, damage or penalty if Product is not performing or Licensee is not able to use any or all of the Product’s features due to a force majeure (including, but not limited to short-circuits, power outages, internet network malfunctions, administrative limitations and others such as a war, strike, riot, crime, or an event described by the legal term “act of God” e.g., flooding, earthquake, etc.) or other causes beyond Company’s reasonable control.

13.6. The Company shall keep the right to make and have implemented, from time to time, any changes, improvements and corrections it deems necessary of the Product hereunder, as long as such change, improvement or correction does not affect the Products main function (rendering of 3d models or computational fluid dynamics simulations of smoke, fire and liquid effects) and does not qualify as a new product

13.7. Company may contact You with relevant product information or marketing communications, such as newsletters. Such communications contain instructions how Licensee can opt-out in case Licensee does not wish to continue receiving them.

13.8. the Product may contain technology to collect anonymous usage data, including but not limited to render or simulation times, settings and used features. Usage data will not contain any information that may be used to identify You or your work personally. However, such technology may inadvertently collect information which may identify you as an individual or organization, in which case the data privacy rules in the relevant section above will apply. Usage data will be collected only after explicit authorization by You and can be reviewed and disabled by You at any time. Usage data in raw or aggregated form may be transmitted to third party servers over the Internet, which may be or may be not under control of the Company. The Company may generate and publish summary reports based on the anonymous data obtained. Such reports may be made available in machine readable format to third parties for further analysis, generally, for the purposes of improving the quality of the Product and the services provided by the Company to You or the public.

13.9. The Company uses tools to collect information about Your preference and behavior in order to deliver certain features and extensions related to the Product, identify trends and bugs, collect usage statistics and track other data related to Your use of the Product, as may be instructed from time to time by the Company. By accepting this Agreement, You consent to collection, processing, use and transfer of data in the manner and for the purposes set out in this Agreement.

13.10. The Company may use various technologies to collect and store information when you use the Product, and this may include using cookies or similar technologies to identify Your copy of the Product.

13.11. The Company uses Google Analytics, a web analytics service provided by Google, Inc. (e.g., to evaluate your use of the Product, compile reports on activity, and process collected information relating to the Product usage). Google Analytics uses first-party cookies that store information, such as time, previous usages, etc. Google Analytics data is classified as confidential information. Google Analytics product helps businesses and site owners analyze the traffic to and the usage of their apps and websites. For further information, You should refer to Company’s Privacy Policy at https://www.chaosgroup.com/privacy and the Google’s privacy policy for further details.

13.12. This Agreement and any other terms referenced in this Agreement, as may be amended from time to time by the Company on its sole discretion, represent the complete and entire agreement between the parties regarding the subject matter hereof and supersede any and all prior proposals, agreements, representations and understandings between the parties, whether written or oral, regarding the subject matter hereof. The Product is licensed to You only upon condition that You accepts all of the terms and conditions contained and/or referenced herein. This is a license agreement and not an agreement for sale.

13.13. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

13.14. V-Ray and the V-Ray logo, Phoenix FD and the Phoenix FD logo, and ChaosGroup and ChaosGroup logo are registered trademarks of Chaos Software Ltd. All other brand names, product names, or trademarks belong to their respective holders.

13.15. Notices in connection with this Agreement will be in writing and will be sent by postal service or a delivery service. Notices will be effective when delivered and received by the Company at Company’s head office address, which currently is: Chaos Software Ltd., Mladost-1A, 147, Tsarigradsko shosse, 4th floor, 1784 Sofia, Bulgaria.

14. SPECIAL TERMS AND CONDITIONS FOR ADVANCED / COMMERCIAL LICENSE

14.1. The terms and conditions of this Agreement which are not clearly referred to as applicable only to specific License Type(s) will apply to all License Types, including but not limited to Advanced / Commercial License Type.

15. SPECIAL TERMS AND CONDITIONS FOR TRIAL LICENSE

15.1. Licensee may download а Trial License version for evaluation and, thereafter, if Licensee liked the Product, order license under the terms and conditions stipulated above, i.e. Licensee can try the Product before starting to pay a license fee. Even though a license fee is not paid for the Trial License, it does not mean that there are no conditions for using the Product under Trial License. These additional and specific terms contained in this Section “Trial License” will apply whenever Licensee chooses to use the Product under Trial License.

15.2. The Product under Trial License can be either a fully- functional, time-limited version, or a feature-limited version, or a combination of these two types. Detailed description of the Trial License restrictions might be found hereunder, on a designated Company web site and/or on the Product user-guide.

15.3. Subject to Licensee’s full and continuous compliance with this Agreement and the restrictions stipulated anywhere in this Agreement, Company grants, and Licensee accepts, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license for mere evaluation purposes only. Licensee is authorized to install, copy, and use the Product for the sole purpose of testing its functionality.

15.4. The product under this license type is provided free of charge only until it is a trial license. Continuous use of the product following expiration of the trial period, or any attempt to use the product following expiration of the trial period, are allowed only after payment in full of the attributable license fees. The specifics of the trial license exclude any refund request(s) concerning any linked license or otherwise referred license purchased for the purpose of using it together with the product. Inter alia, if a trial license is a time-limited, fully-functional version, allowing licensee to see and test all the features, licensee refund request will be declined if based on trial license claims concerning absence of certain feature(s) or if any feature doesn’t work as licensee expected it to work. All other refund cases, if any, are regulated by company warranty and limitation of liability policy.

15.5. Licensee may not, in addition to any other restrictions contained elsewhere:

a. use the Product without payment of the attributable license fees after expiration of the Trial License.

b. benefit commercially from using the Product in the authorized manner.

15.6. The Trial License may be limited with a term and will be effective until terminated or Licensee chooses to use the Product under the standard terms and conditions for the Product, in return for a license fee, stipulated in the other sections of this Agreement, whichever occurs earlier.

15.7. Licensee may terminate the Agreement at any time by returning and/or destroying the Product, related documentation and all copies thereof.

15.8. Company may terminate the Agreement at any time. the Agreement will terminate immediately without notice from Company if Licensee fails to comply with any provision of the Agreement.

15.9. Upon the termination of the Agreement for whatsoever reason, Licensee will cease all use of the Product and destroy all copies, full or partial, of the Product.

15.10. Unless at the end of the Trial Period Company decides to extend the Trial Period or Licensee elects to be licensed the Product in return for applicable fee, Licensee accepts to immediately stop using the Product and return and/or destroy the Product, related documentation and all copies thereof. If Licensee retains the Product after the end of the Trial Period, Company will consider that Licensee chose to be licensed the Product in return for an applicable fee, under the terms and conditions of the standard EULA for this Product. Payment of the applicable fees is due as from the day immediately following the end of the Trial Period, as instructed in details in the relevant invoice(s).

15.11. Sections (LIMITATIONS/RESTRICTIONS) (CONFIDENTIALITY AND NON-DISCLOSURE) (OWNERSHIP), (PRIVACY), (LIMITED WARRANTY), (DISCLAIMER), (LIMITATIONS OF LIABILITY) (OTHER PROVISIONS) will survive the termination of this Agreement, howsoever caused, and this will not imply or create any continued right for Licensee to use the Product or any part of the Product after termination of this Agreement.

16. SPECIAL TERMS AND CONDITIONS FOR BETA LICENSE

16.1. Whenever You are provided a Beta License Type for a Product, You acknowledge, understand, recognize and agree that the Product, and any of its updates may contain errors, AND ARE PROVIDED TO YOU FOR LIMITED EVALUATION PURPOSES ONLY.

16.2. Under this License Type You may not use the Product or Licensee’s Works for commercial purposes, unless a specific agreement with the Company is reached on that. The specific agreement may be replaced by a relevant statement of the Company stipulated on the beta section of the Product “Commercial Purposes” means, not limited to, to: sell, charge, accept payment in any form or other compensation for the usage of the Product, Licensee’s Works or parts of Licensee’s Works produced with the Product.

16.3. Offerings identified as “Beta”, “Labs” or “Pre-Release” or made available as “free” in other testing mode, or without requirement of payment for any other Company product (“Free Products”, in the meaning of products provided without obligation for payment or any additional consideration, other than receiving Feedback, or other valuable consideration which tangible value may not be easy to estimate), may be subject to additional terms and conditions that appear in connection with Your use of the free Products and are incorporated into these Terms by reference. For example, when You are offered Beta Products License Type:

a. You are entitled to participation based on Your commitment to participate and test the Product, where lack of sufficient participation is a good and sufficient cause for the Company to remove You from the Beta target group and Your access and use of the Product;

b. Generally, You may use Product solely for Your internal, non-productive business purposes, and solely: (a) to evaluate the technical and commercial viability of the Product; (b) to evaluate the reliability and functionality of the Product in a working environment; (c) to determine whether the features of the Product perform as designed and are useful; (d) to determine whether the Product will work for its intended purpose; and (e) to create and provide to the Company voluntary suggestions and technical feedback regarding the Product, including suggestions regarding viability and functionality of the Product. If You submit feedback or suggestions about the Product, Company may use Your feedback or suggestions without obligation to You

16.4. You may report to the Company for any and all functional flaws, errors, anomalies, bugs and other problems directly or indirectly associated with the Product known to or discovered by you. You agree that the contents of such reports to the Company, provided either in written or oral form, and any other materials, information, ideas, concepts, suggestions, improvements, know-how and the like (“Feedback”) provided by you (including corrections to problems in the Product and documentation) become property of Company. You agree to assign, and hereby assign, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to Company, and agree to assist Company, at Company’s expense, in perfecting and enforcing such rights. Company may disclose or use Feedback for any and all business purposes whatsoever without any obligation to you. Under no circumstances will Company become liable for any payment to you for any Feedback that you have provided, whether concerning the Product or otherwise, no matter how such Feedback is used or exploited by Company. “Feedback” means any suggestions, feedback, improvement requests or other recommendations You or Your Users provide, relating to the Product. Chaos will have (and You grant) a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any Feedback. Under no circumstances Feedback may be considered Confidential Information.

16.5. You acknowledge and agree that possession, installation, use of the Product or Feedback submission does not transfer to You any title to the Company’s intellectual property. The Company and its licensors own and retain title to and ownership of, and all other rights with respect to, the Product, the Collateral Products, the Confidential Information, Feedback and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.

17. SPECIAL TERMS AND CONDITIONS FOR NFR LICENSE

17.1. Whenever You are provided a NFR License Type for a Product, You acknowledge, understand, recognize and agree that it is s a designation for the Product that gives You right only for testing and demonstration purposes, with the understanding that you will not resell the Product.

17.2. NFR ensures You complete, promotional copies of the Product, generally not eligible for upgrades when they become available, and will not include technical support, whenever offered by Company, unless otherwise clearly stated by the Company in the relevant Product section.

17.3. Product marked with NFR legend are not licensed for resale, and so no license for general use is granted.

18. SPECIAL TERMS AND CONDITIONS FOR EDUCATIONAL/ ACADEMIC LICENSE

18.1. Whenever You are provided an Educational, also referred to as Academic, License Type for a Product, You acknowledge, understand, recognize and agree that it is a License limited to Your educational purposes, and is only available for licensees that are academic or educational institutions or individuals that are students or educators.

18.2. Academic or educational institutions are defined as those dedicated to education, including public and private universities, colleges, junior colleges, elementary, middle, high schools, and technical schools which are accredited by a state or other appropriate governmental agency or organization.

18.3. Student/ educator is a person who can confirm enrollment/ employment at a degree-granting educational institution.

18.4. The Company may decide not to charge a full license fee and this will be clearly indicated in the relevant Product section.

19. SPECIAL TERMS AND CONDITIONS FOR RENDERFARM LICENSE

19.1. Whenever You are provided a license for use of the Product for commercial renderfarm services, an additional agreement supplementing and amending the present Agreement will be signed with You.

———————-

3D Warehouse – Terms of Use

Last updated: April 1, 2017 © 2017 Trimble Inc.  All rights reserved. Copyright & Trademarks No portion of this web site or the service may be reproduced in any form, or by any means, except as authorized below, without prior written permission from Trimble Inc.

1. Acceptance of Terms Through Use; Changes to Terms of Use

Welcome to 3D Warehouse. Trimble Inc. (“Trimble”) makes available 3D Warehouse and any other element of this website or subdomains (collectively, “3D Warehouse”) only upon your acceptance of these Terms of Use (“Terms of Use”). PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING OR ACCESSING 3D WAREHOUSE OR DOWNLOADING OR ACCESSING MODELS. YOUR USE OF 3D WAREHOUSE INDICATES YOUR AGREEMENT TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THE CURRENTLY POSTED TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE 3D WAREHOUSE. Changes to Terms: Please note that Trimble reserves the right to update and change these Terms of Use from time to time in its discretion and will post a notice on 3D Warehouse when these Terms of Use have changed. Please also check these Terms of Use periodically for changes. Your continued use of 3D Warehouse following the posting of any changes to these Terms of Use will confirm your acceptance of those changes. These Terms of Use constitute a binding, legal agreement between you and Trimble and are intended to have the same force and effect as if you signed them. 3D Warehouse and other services are only available to persons who can form legally binding contracts under applicable law. If you do not qualify, you may not use 3D Warehouse. A current copy of these Terms of Use can be accessed and viewed at any time from the home page of 3D Warehouse or at https://3dwarehouse.sketchup.com/tos.html.

2. Use of 3D Warehouse

Subject to these Terms of Use, you may use 3D Warehouse to view, search, locate, download, and Distribute Models. Trimble reserves the right to refuse access to 3D Warehouse to anyone at any time in its sole discretion. “Models” are individual, separate three-dimensional models of objects created, designed, and developed by you or a third-party (a “Developer”) or by Trimble and include related content and information about or included with the Models. Trimble is not responsible for any Developer Models. “Distribute” means to submit, upload, distribute, sell (upon Trimble’s implementation of payment systems) and/or license Models you have created to end users. Currently all Models are made available and Distributed through 3D Warehouse free of charge. If Trimble implements a payment system, Trimble will post additional terms to these Terms of Use describing the ways in which Models may be purchased and sold through 3D Warehouse. To download and use the Models, you need software that is compatible with the Model (for which Trimble or the applicable manufacturer may charge a separate fee) and a computer device with Internet access; such requirements may change from time-to-time and are your responsibility.

3. User Accounts

    1. Account Creation.
Upon signing in to 3D Warehouse the first time, you need to create an account. Currently, you may create a 3D Warehouse account by signing in with a valid Google ID (a username/password combination used to access your Google account) or Trimble ID (a username/password combination issued by Trimble). To sign in using a Google ID, you must authorize Google to share account information with Trimble and you must maintain your Google ID in good standing subject to any separate user terms between you and Google. The authentication information Google provides to Trimble or you provide to Trimble may contain personally identifiable information, which will be handled by Trimble as described below, and we may publicly display the username and profile photo (if any) associated with your Trimble or Google user account. You are entirely responsible for maintaining the confidentiality of your password and account credentials, and you agree that Trimble may terminate your access to 3D Warehouse and other services if you fail to do so. Additionally, you are fully responsible for any and all activities that occur under your account. You agree to notify Trimble immediately of any unauthorized use of your account or any other breach of security. Trimble will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.
    1. Your Personal Information.
Personally identifiable information that you may submit for the purpose of receiving products or services or for creating or authenticating your user account will be handled in accordance with Trimble’s online Privacy Statement, and may be used or shared by Trimble as necessary to fulfill your access to a Model or provide any related services or as otherwise set forth in these Terms of Use.

4. Age Restrictions

You may not register for a user account or use 3D Warehouse to Distribute Models if you are under 13 years of age unless we have verified parental consent.

5. Third Party Models, Products and Services

Some of the 3D Warehouse Materials (defined below in Section 10) may be provided or owned by third parties. Trimble does not endorse, guarantee or provide a warranty for the third party 3D Warehouse Materials and may or may not review them for compliance with law (copyright, patent or any other laws) or Trimble policies. Use of a third party Model is governed by the License Terms Applicable to Models set forth below. TRIMBLE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AND SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO MODELS POSTED BY THIRD PARTIES (AND ANY ACTION YOU TAKE BASED ON THEM).

6. Trimble Proprietary Products and Services

Trimble’s obligations with respect to its own, proprietary products and services are governed solely by the terms and conditions of agreements under which Trimble provides them to you. If you obtain a Trimble proprietary product or service through 3D Warehouse that is provided without an agreement, that product or service is provided “AS-IS” with no warranties whatsoever, express or implied, and your use of that Trimble product or service is at your own risk. Nothing herein grants you any license, rights, title or interest in or to the Trimble SketchUp software which is licensed to you pursuant to a separate agreement (“SketchUp License Agreement” ). Trimble may update, fix or upgrade the SketchUp software from time-to-time without notice and such changes may affect compatibility or interoperability of your Model. Your right, if any, to receive such updates, fixes or upgrades is dependent upon and governed by the terms of the applicable SketchUp License Agreement between you and Trimble.

7. License Terms Applicable to Models

Your use of a Model you download or use is governed by these Terms of Use and the General Model License available here (“General Model License”). Any Model provided under the General Model License is provided “AS-IS” with no warranties whatsoever, express or implied, and your use of that Model is at your own risk.

8. Availability of Models

Trimble or any Developer may modify, update or remove any Model they have published to 3D Warehouse at any time in their discretion. Trimble may also remove any Model from 3D Warehouse if it discovers that such Model (or related Developer) violates these Terms of Use, any other Trimble policy or applicable law.

9. Distribution of Models through 3D Warehouse

    1. Qualifications and Distribution Terms.
Subject to your compliance with these Terms of Use and any applicable Developer guidelines, qualifications and requirements of Trimble for Models (“Qualifications”), you may Distribute your Models to end users through 3D Warehouse, and you will then be deemed a “Developer” under these Terms. Trimble is not responsible for any Models you Distribute. Trimble may in its discretion set and revise from time-to-time Qualifications regarding the criteria and procedures for Trimble to accept and authorize each Model submitted for Distribution through 3D Warehouse. Trimble may choose to waive or impose additional Qualifications for a particular Model in its discretion. Trimble may decline to make a Model available on 3D Warehouse for any reason or no reason. Until such time as Trimble has implemented payment systems for 3D Warehouse, you are free to charge for Models you Distribute via other channels, provided that you are solely responsible for any such activities. In such cases, you shall be solely liable for processing end user payments, administration of applicable refunds or chargebacks and remittal and collection of all applicable taxes. If Trimble implements payment systems for 3D Warehouse, your sale of Models shall be subject to the subsequently released version of these Terms of Use. You may remove a Model you previously posted from 3D Warehouse at any time provided that removal shall not affect the license granted to end users who downloaded that Model before you removed it and those licenses will continue under the terms of the General Model License. Although Trimble will not continue Distribution of your Models after you remove them, Trimble may retain archive copies for record keeping purposes.
    1. Grant of Licenses. Distributors grant two licenses to their Models as follows:
To Trimble. For all Models you Distribute on or through 3D Warehouse, you hereby grant to Trimble a nonexclusive, worldwide, perpetual, transferrable (with the right to sublicense through multiple tiers), irrevocable license (under all applicable intellectual property rights) to copy, publicly perform and display, use, distribute, create derivative works of, store, promote, market, support, transmit, and otherwise make available on or through 3D Warehouse each Model and related content, including without limitation as necessary to promote, operate and make available 3D Warehouse and any related Trimble products or services. The foregoing license includes the rights for Trimble to make available Models (or any parts, related content or derivative works thereof) through Trimble’s partners and sublicensees. To the End User. You will make your Models available to end users pursuant to the General Model License.
    1. Title and Ownership.
As between you and Trimble, except for the limited license rights granted herein, all right, title and interest in and to the Models you Distribute shall remain yours.
    1. Trimble Not Responsible for Your Models.
Trimble does not and will not endorse, guarantee or provide a warranty for your Models and may or may not review them for compliance with law (copyright, patent or any other laws) or Trimble policies or Qualifications. Distribution of your Models on 3D Warehouse is at your own risk.
    1. Representations and Warranties.
You represent and warrant that you have all intellectual property rights, including patent, copyright, trademark, trade secret, right of privacy or publicity or other proprietary rights, in and to each Model you Distribute and its related content. If your Model or content includes third-party materials or content, you represent and warrant that you have the right to Distribute the third-party materials or content or otherwise grant Trimble all rights and licenses to such Model set forth in subsection (B) above. You shall not Distribute Models unless you are the owner of such Models and/or have all the necessary rights or permissions from applicable third parties.

10. 3D Warehouse Materials; Use Restrictions

    1. Proprietary Rights.
Trimble or its licensors reserve all right, title and interest (including intellectual property rights) in and to 3D Warehouse and the content and other information available on 3D Warehouse (excluding User Communications (defined below)) and the Models (except the Models you have posted) (collectively, “3D Warehouse Materials” ). Trimble’s rights are protected by worldwide copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All rights not expressly granted under these Terms of Use are retained by Trimble or its licensors. Unauthorized use of 3D Warehouse Materials may violate copyright, trademark and other intellectual property rights and laws. Models and any other software made available on 3D Warehouse are licensed, not sold and any reference in these Terms of Use to selling or purchasing software or Models shall mean selling or purchasing a license.
    1. Use Restrictions
You may not:
      1. Modify 3D Warehouse Materials (other than your User Communications or Models or content you posted) or use them for any public display, performance, sale, rental or for any commercial purpose except as expressly authorized in these Terms of Use or the General Model License;
      2. Decompile, reverse engineer, or disassemble 3D Warehouse Materials that is software (except and only to the extent permitted by applicable law, and then only with advance notice to Trimble);
      3. Remove or modify any copyright or other proprietary or legal notices from 3D Warehouse Materials; or
      4. Redistribute or transfer 3D Warehouse Materials to another person except as expressly authorized in these Terms of Use or the General Model License.
    2. Conduct
As a condition of your use of 3D Warehouse you agree that you will not use 3D Warehouse Materials for any purpose that is unlawful or prohibited by these Terms of Use, or any other Trimble policy (“Misuse”). You will be responsible for any costs incurred by Trimble or any other party (including attorneys’ fees) as a result of your Misuse of 3D Warehouse Materials. Misuse includes, but is not limited to:
    1. Using 3D Warehouse Materials to disseminate or convey inappropriate, defamatory, obscene, salacious, or unlawful information, images or content; or to harass, stalk, threaten or otherwise violate the legal rights of others;
    2. Using 3D Warehouse Materials in such a manner so as to interfere unreasonably with its use by others;
    3. Attempting or assisting another to access, alter, or interfere with the communications and/or information of another user;
    4. Scraping information from 3D Warehouse;
    5. Account fraud or unauthorized access of an account;
    6. Uploading, or otherwise making available, any Models or any other 3D Warehouse Materials, including files that contain text, images, photographs, software or other content owned by others, in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of others;
    7. Advertising, offering to sell or buy goods (other than Models, if applicable), or using 3D Warehouse Materials for business promotional purposes, except as expressly permitted by Trimble or the General Model License;
    8. Violating any code of conduct associated with 3D Warehouse, or any applicable laws or regulations;
    9. Taking any action that imposes an unreasonable or disproportionately large load on 3D Warehouse infrastructure; or uploading files that contain viruses, Trojan horses, worms, or other similar software or programs that cause damage to computers or property of others; or
    10. Using any messaging functionality made available through 3D Warehouse to send communications which would violate applicable law (including, but not limited to, the CAN-SPAM Act of 2003) or which contain content or materials of the type prohibited in subsections (i), (vi), (vii) or (ix) above.

11. User Posted Materials

3D Warehouse may include feedback, ratings and review mechanisms, messaging functionality and other ways in which users can post, upload, interact with, share and submit materials (e.g., text, images, data, etc.) (collectively, “User Communications”). USER COMMUNICATIONS WILL BE CONSIDERED NON-CONFIDENTIAL AND NON-PROPRIETARY AND BY POSTING, UPLOADING, INPUTTING, OPTING TO SHARE, OR OTHERWISE SUBMITTING ANY USER COMMUNICATIONS TO 3D WAREHOUSE, YOU UNDERSTAND AND AGREE THAT:
  1. You are granting Trimble, its designees and sub-licensees, consent and permission to use your User Communications, including without limitation, worldwide, royalty-free, non-exclusive, perpetual license rights with right of sublicense to disclose, reproduce, store, display and perform (publicly or otherwise), publish, adapt, modify, transmit, distribute, have distributed, edit, translate, reformat, create derivative works based on and otherwise use such User Communications; and
  2. You represent and warrant that you own or otherwise control all of the rights to your User Communications and that your User Communications will not infringe or violate the rights of any third party.If you use the “Contact Me” functionality provided by 3D Warehouse to send private messages to other users, you acknowledge and agree that those other users will be able to see your name and email address in the “reply to” field of your message, view the contents of your message and respond directly to the email address associated with your account.
Trimble shall have no obligation to monitor User Communications (including other users’ responses to private messages). Trimble reserves the right at all times to disclose any information as Trimble deems necessary to satisfy any applicable law, regulation, legal process or governmental request or to review, edit, refuse to post, or to remove any User Communications, in whole or in part, in Trimble’s sole discretion. TRIMBLE DOES NOT CONTROL OR ENDORSE THE CONTENT, MESSAGES OR INFORMATION FOUND IN ANY USER COMMUNICATIONS AND, THEREFORE, TRIMBLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING USER COMMUNICATIONS AND SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THEM (AND ANY ACTION YOU TAKE BASED ON THEM) AND ANY ACTIONS OR CLAIMS RESULTING FROM YOUR PARTICIPATION IN ANY SERVICES. Please note: Trimble has no obligation to remove any User Communications that you have opted to input and share absent Trimble’s receipt of your written request to do so. You may submit a request for removal of your shared User Communications from the applicable forum or webpage to the email address designated for such purpose or to [email protected]. Trimble does not guarantee that it will be able to remove all instances of your User Communications and removal will not affect any licenses granted in connection with your User Communications prior to the time of their removal.

12. Ratings and Reviews of Models

    1. In General.
3D Warehouse may have functionality to allow you to rate and provide reviews of or comments about Models, including by indicating you “like” a Model through a button, widget or similar mechanism, all of which constitute User Communications hereunder. To be useful to other users, your reviews and comments must be made in good faith after reasonable evaluation of a Model. In addition, reviews may not contain content that constitutes Misuse, that is false, fraudulent or misleading or that impersonates any other person or entity, including any of Trimble’s employees. All ratings and reviews must comply with these Terms of Use, and Trimble may take down ratings or reviews or block reviewers in the event of a violation of these Terms of Use.
    1. Terms Specific to Developers.
Trimble shall have no responsibility for ratings or to monitor ratings, but may use the ratings to determine the placement of Models, to change the placement from time-to-time, or to remove Models in Trimble’s discretion. Any action you take based on any rating is at your own risk and in your sole discretion. If you post a review of your own Model, you must disclose your identity and the fact that the Model being reviewed is your Model. If you pay or otherwise incent others to post a review of your Model, you must require that party to disclose that fact in their review. If you post a review of a competitor’s Model, you must disclose your identity and the fact that you publish a competitive Model.

13. Aggregated Information; Feedback

In addition to Trimble’s other rights, Trimble may collect aggregated information regarding your interaction with 3D Warehouse and Models (excluding any personally identifiable information) and may exploit and use such aggregated information for any purpose without restriction. Trimble may freely use, copy, disclose, prepare derivative works based on, publicly perform or display, distribute and exploit any feedback, bug reports or suggestions you provide to Trimble (including in User Communications) regarding 3D Warehouse Materials or other Trimble products and services, without any obligation, royalty or restriction based on intellectual property rights or otherwise.

14. Termination Rights for Violations; Removal of Content and Discontinuation of Service

Trimble may suspend your account or stop providing Models or services to you if Trimble is investigating suspected misconduct or Misuse. If you or your Models violate these Terms of Use, Qualifications (if applicable), or applicable Trimble policies or laws, or interfere with 3D Warehouse in any way:
  1. Trimble reserves the right to seek all remedies available in law and equity for such violations;
  2. Trimble may terminate these Terms of Use with you, remove your Models from 3D Warehouse, and/or suspend or terminate your account;
  3. Any authorization and license you have to use and/or Distribute the Models and to use or access other 3D Warehouse Materials shall automatically terminate; and
  4. You must immediately discontinue use of and destroy any downloaded Models or other 3D Warehouse Materials, including in any Combined Work.
Trimble further reserves the right to remove 3D Warehouse Materials or discontinue services available on 3D Warehouse with or without notice, to terminate your authorization to use any services or 3D Warehouse Materials, to terminate your password, if any, and to delete any one or more of your related accounts, for any reason or for no reason, immediately and at any time. Trimble accepts no responsibility for such deleted or removed 3D Warehouse Materials.

15. 3D Warehouse Messaging

You agree that Trimble may contact you with messages sent from time to time through your personal computer, mobile phone or other wireless device delivered using SMS-based text messages, email messages or other communication mechanisms, in situations when such contact is required to respond to your User Communications, send you service announcements or administrative messages, inform you about material events concerning you and your account, or send marketing communications describing new 3D Warehouse features or highlight featured content to you. You may opt out of those Trimble marketing communications at any time by updating your account preferences.

16. Indemnification

Upon a request by Trimble, you agree to defend, indemnify and hold harmless Trimble and its affiliates, agents, suppliers and third parties, and its and their employees, contractors, officers and directors from all liabilities, claims and expenses, including attorneys’ fees, that arise from:
  1. Your use or misuse of 3D Warehouse Materials
  2. Distribution of your Models
  3. Violation of the Qualifications
  4. Intellectual property infringement by your Models
  5. Your use of any Models you have downloaded
  6. Your breach of the General Model License associated with Models you have downloaded
Trimble reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with Trimble in asserting any available defenses. You may not settle any claim without the prior written consent of Trimble in each case.

17. No Exclusivity

Trimble does not represent or warrant that Models developed by Trimble or submitted by Developers will not contain features or functionality that are the same as or similar to those in other Models available on 3D Warehouse and neither these Terms of Use nor your participation in 3D Warehouse limits Trimble’s or any Developer’s right to develop or have developed for its products, concepts, systems or techniques that are similar to or compete with any Model or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to Trimble. Trimble does not grant you exclusivity of any kind.

18. Warranty Disclaimer

Trimble assumes no responsibility for the accuracy of 3D Warehouse Materials; nor does Trimble warrant that 3D Warehouse Materials are up-to-date, that 3D Warehouse Materials will meet your needs, that 3D Warehouse Materials will be available at any particular time or location, that any defects or errors will be corrected, or that 3D Warehouse Materials are free of viruses or other harmful components. Your use of 3D Warehouse Materials and Distribution of Models is at your sole risk. Mention of non-Trimble products or services is for information purposes only and constitutes neither an endorsement nor a recommendation. 3D WAREHOUSE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY BY TRIMBLE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR A PARTICULAR PURPOSE.

19. Limitation of Liability

IN NO EVENT SHALL TRIMBLE, ITS SUPPLIERS OR OTHER DEVELOPERS BE LIABLE TO YOU FOR ANY DIRECT, THIRD PARTY, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OF OR INABILITY TO USE OR DISTRIBUTE MODELS THROUGH 3D WAREHOUSE, 3D WAREHOUSE MATERIALS, OR ANY OTHER TRIMBLE PRODUCT OR SERVICE, OR DAMAGES RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENT ON 3D WAREHOUSE), EVEN IF TRIMBLE, ITS SUPPLIERS OR OTHER DEVELOPERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE EXCLUSION OF DAMAGES IS INDEPENDENT OF ANY REMEDY PROVIDED UNDER THESE TERMS OF USE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER DAMAGES ARISE FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PROHIBIT SUCH EXCLUSIONS AND LIMITATIONS, IN NO EVENT WILL TRIMBLE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIFTY DOLLARS (U.S. $50). Trimble does not assume and will not have any liability arising from events beyond Trimble’s control or the control of its subcontractors, other Developers, business partners or licensors, including events such as acts of God, acts of any governmental entity, acts of a public enemy, strikes, natural disasters, or failure or diminishment of power or telecommunications or data networks or services.

20. Links to Third Party Web Sites

3D Warehouse may contain links to third party web sites whether provided by Trimble or a user of 3D Warehouse. Access to any other web site linked to 3D Warehouse is at the user’s own risk. Trimble does not control, and is not responsible for, the accuracy or reliability of any information, content, data, opinions, advice or statements made on those web sites, or about any products found at those web sites, or about any search results that may be obtained from using them. Trimble provides these links merely as a convenience and the inclusion of such links does not imply an endorsement.

21. Linking to 3D Warehouse

You may create links to 3D Warehouse from other web sites, but only in accordance with the following guidelines (or other guidelines that Trimble may provide from time to time) and in compliance with applicable law. A web site that links to 3D Warehouse:
  1. May refer to the Trimble company name, SketchUp or 3D Warehouse name or product names in a plain text font and format in accordance with Trimble’s general trademark usage guidelines, using appropriate wording such as “This way to 3D Warehouse” or “Click here for more information on SketchUp products.”
  2. Shall not imply that Trimble is endorsing its products.
  3. Shall not misrepresent its relationship with Trimble.
  4. Shall not present false information about Trimble products or services.
  5. Shall not use the Trimble or SketchUp or 3D Warehouse logos or other trademarks (including third party trademarks) without permission from Trimble or the owner of the trademark.
  6. Shall not charge or attempt to charge for the use of 3D Warehouse or any Models which are not your own Models.
  7. Shall not contain content that could be construed as distasteful, offensive or controversial, and shall contain only content that is appropriate for all age groups.
If you have placed a link on your web site to 3D Warehouse you agree to promptly remove such link at Trimble’s request.

22. Copyright and Trademark Information

Copyright information and a current list of United States trademarks owned by Trimble is set forth at http://www.trimble.com/copyrights.aspx. Any questions concerning their use, or whether a trademark that does not appear on this list is a trademark of Trimble, should be referred to Trimble’s Intellectual Property department at U.S. +1 408 481 8000.

23. U.S. Government Restricted Rights

Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in these Terms of Use or the General Model License, and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable. Use of the Warehouse Materials by the Government constitutes acknowledgment of Trimble’s, its suppliers’ or Developer’s proprietary rights in them.

24. International

3D Warehouse is administered by Trimble from its offices or those of its affiliates at various locations within the United States of America. Trimble may also make use of its U.S. or foreign affiliates or one or more external service providers to host 3D Warehouse. Consequently, data is collected, sent, processed and stored in the United States and may be collected, sent, processed and stored outside the United States. You acknowledge that in the event of conflict of privacy laws or practices in your jurisdiction and those in the domicile of the entity hosting 3D Warehouse the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Warehouse Materials are appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. You may not use or export or re-export the Warehouse Materials or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If you choose to access 3D Warehouse from locations outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws.

25. Choice of Law and Forum

These Terms of Use shall be governed by and construed in accordance with the laws of the State of California and applicable United States federal law, without reference to “conflicts of laws” provisions or principles. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Use or your use of 3D Warehouse or Distribution of your Models shall lie exclusively in, or be transferred to the courts of the County of Santa Clara and/or the Northern District of California; and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of adjudicating any such claim or action.

26. Contacting Trimble or the SketchUp division

Information on how to contact Trimble may be found at http://www.trimble.com/Corporate/Contacts.aspx. Information on how to contact Trimble’s SketchUp division may be found at http://help.sketchup.com/contact. Any notice or other communication given by you to Trimble regarding these Terms of Use will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to Trimble at its notice address. TRIMBLE’s notice address shall be: Trimble Inc., Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA.

27. Digital Millennium Copyright Act

Notice and Procedure for Making Claims of Copyright Infringement If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Trimble’s DMCA administrator the written information specified below, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2).
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that you claim has been infringed upon;
  • A description of where the material that you claim is infringing is located on 3D Warehouse;
  • Your address, telephone number, and e-mail address;
  • A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Trimble’s DMCA administrator for notice of claims of copyright infringement on 3D Warehouse can be reached as follows: DMCA Administrator Legal Department Trimble Inc. 935 Stewart Drive Sunnyvale, CA 94085 Fax: 408-481-7780 [email protected]

28. General Provisions

Except as otherwise specified herein, these Terms of Use constitute the entire agreement between you and Trimble with respect to your use of 3D Warehouse and Distribution of Models and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Trimble with respect to use of 3D Warehouse and Distribution of Models. You also may be subject to additional terms and conditions that may apply when you use 3D Warehouse Materials, software, or services provided by third party providers to 3D Warehouse. These Terms of Use, and any rights and licenses granted under these Terms of Use, may not be transferred or assigned by you, but may be assigned by Trimble without restriction. Any rights not otherwise expressly granted by these Terms of Use are reserved by Trimble, its suppliers or other Developers. The failure of Trimble to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any part of these Terms of Use is held invalid or unenforceable by a court of competent jurisdiction that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of 3D Warehouse must be filed within one (1) year after such claim or cause of action arose or be forever barred. Sections 10 (3D Warehouse Materials; Use Restrictions), 11 (User Posted Materials), 13 (Aggregated Information; Feedback), 16 (Indemnification), 18 (Warranty Disclaimer), 19 (Limitation of Liability), 25 (Choice of Law and Forum) and 28 (General Provisions) will survive any termination or expiration of your use of or access to 3D Warehouse Materials or these Terms of Use as applies to you. The official language of these Terms of Use is English. If there is a conflict between the English language version and any translation, the English language version will control.

Terms of Trade

Professional CAD Systems Ltd – Terms and Conditions of Trade. Please note that a larger print version of these terms and conditions is available from PCS on request. © Copyright – EC Credit Control 1999 – 2016 1. Definitions 1.1 “PCS” means Professional CAD Systems Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, Professional CAD Systems Ltd. 1.2 “Client” means the person/s requesting PCS to supply the Software as specified in any quotation, order invoice or other document, and if there more than one person requesting the Software is a reference to each person jointly and severally. 1.3 “Software” means all software and associated products and services supplied by PCS to the Client, at the Client’s request, from time to time. 1.4 “Price” means the Price payable for the Software as agreed between PCS and the Client in accordance with clause 6 below. 2. Acceptance 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Software, or accepts Delivery. 2.2 These terms and conditions may only be amended with PCS’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and PCS. 2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act. 2.4 If requested by PCS, the Client shall provide any relevant information required to assist in the supply of the Software, and the Client shall be responsible for ensuring that any information or instructions supplied by the Client (or the Client’s agent) are clear and correct in every particular and meet the Client’s requirements and purposes, whether or not the same have been communicated to PCS. The Client shall keep indemnify and hold harmless PCS in respect of any liability, loss, injury, damage, demand, cost, charge or expense which may be incurred or sustained by PCS by reason of or arising directly or indirectly out of any claim in respect of any omission, inaccuracy, ambiguity or illegibility in respect of any such information or instructions, or otherwise in relation thereto. 2.5 Any advice, recommendations, information, assistance or service provided by PCS in relation to Software supplied is given in good faith, is based on information provided to PCS, and PCS’ own knowledge, and experience. Where any such advice or recommendations are not acted upon, then PCS shall not be liable in any way whatsoever for any damages or losses that occur. 3. Orders 3.1 PCS cannot guarantee that the Software is in stock. PCS reserves the right to reject the Client’s order at any time and without any liability to PCS if, in PCS’ sole discretion, it is unable to process or fulfil the order. 3.2 The Client confirms that all information provided by the Client when placing an order is complete, accurate and up-to-date so as to allow PCS to fulfil the order, and the Client will promptly update such information to keep it complete and accurate. If the Client provides any information that is untrue, inaccurate, or incomplete, or if PCS has reason to believe that the information provided is untrue, inaccurate, or incomplete, PCS may suspend or terminate the order. 4. Change in Control 4.1 The Client shall give PCS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by PCS as a result of the Client’s failure to comply with this clause. 5. Authorised Representatives 5.1 Unless otherwise limited as per clause 5.2, the Client agrees that should it introduce any third party (including but not limited to, any employee, another company or consultant) to PCS as its duly authorised representative, that once introduced that person shall have the Client’s full authority to order any Software, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until this contract is terminated or has expired, or the Client otherwise notifies PCS in writing that said person is no longer the Client’s duly authorised representative). 5.2 In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise PCS in writing of the parameters of the limited authority granted to the Client’s representative. 5.3 The Client specifically acknowledges and accepts that it will be solely liable to PCS for all additional costs incurred thereby (including PCS’ profit margin) in supplying any Software, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)). 6. Price and Payment 6.1 At PCS’ sole discretion the Price shall be either: (a) as indicated on any invoice provided by PCS to the Client; or (b) the Price as at the date of Delivery, according to the PCS’ current price list; or (c) PCS’ quoted price (subject to clause 6.2) which will be valid for the period stated in PCS’ quotation, or otherwise for a period of seven (7) days. 6.2 PCS reserves the right to change the Price if a variation to PCS’ quotation is requested, including, but not limited to, any variation to the Software which are to be supplied, or any increase to PCS’ costs as a result of fluctuations in currency exchange rates, or the increase or imposition of any tax, duty or other levy (which are beyond PCS’ control). 6.3 At PCS’ sole discretion, a non-refundable deposit of up to forty percent (40%) may be required. 6.4 Time for payment for the Software being of the essence, the Price will be payable by the Client on the date/s determined by PCS, which may be: (a) due twenty (20) days following the end of the month in which a statement is posted to the Client’s address, or address for notices; or (b) the date specified on any invoice or other form as being the date for payment; or (c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice furnished to the Client by PCS. 6.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to four percent (4%) of the transaction, PayPal, or by any other method as agreed to between the Client and PCS. 6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to PCS an amount equal to any GST PCS must pay for any supply of Software by PCS under this contract, or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price. 7. Delivery and Risk 7.1 Delivery of the Software (“Delivery”) is taken to occur at the time that: (a) the Client (or the Client’s nominated carrier) takes possession of the Software at PCS’ premises; or (b) PCS (or PCS’ nominated carrier) delivers the Software at the Client’s nominated address, even if the Client is not present at the address. 7.2 At PCS’ sole discretion, the cost of Delivery is included in the Price. However, travelling time will be charged to the Client where PCS’ on-site time is less than four (4) hours. 7.3 Any time specified by PCS for supply of Software is an estimate only, and PCS will not be liable for any loss or damage incurred by the Client as a result of any failure to deliver the Software, or delay, if the same arises due to causes beyond its reasonable control. Both parties agree that they shall make every endeavour to enable the Software to be supplied at the time and place as was arranged between both parties. In the event that PCS is unable to supply the Software, as agreed, solely due to any action or inaction of the Client, then PCS shall be entitled to charge the Client additionally for re-supplying the Software at a later time and date, including any redelivery and/or storage costs. 7.4 Risk of damage to, or loss of, the Software passes to the Client on Delivery, and the Client must insure the Software on, or before, Delivery. 7.5 If any of the Software is damaged or destroyed following Delivery, but prior to ownership passing to the Client, PCS is entitled to receive all insurance proceeds payable for the Software. The production of these terms and conditions by PCS is sufficient evidence of PCS’ rights to receive the insurance proceeds without the need for any person dealing with PCS to make further enquiries. 7.6 If the Client requests PCS to leave Software outside PCS’ premises for collection, or to deliver the Software to an unattended address, then such Software shall be left at the Client’s sole risk. 7.7 The Client acknowledges and agrees that the Client is (for all purposes) solely responsible for the migration of all files and data (regardless of their format). PCS shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to the Software itself) resulting from illegal hacking or mislabelling or misfiling. 7.8 It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable. The Client accepts full responsibility for the Client’s software and data and PCS is not required to advise or remind the Client of appropriate backup procedures, including the importance of back-up data housed off-site (unless included in PCS’ quotation). 8. Title 8.1 PCS and the Client agree that title to the Software (or, if licensed, the copy of the Software) shall not pass until: (a) the Client has paid PCS all amounts owing to PCS (including, without limitation, any interest and other amounts due for the Software); and (b) the Client has met all other obligations due by the Client to PCS in respect of all contracts between PCS and the Client. 8.2 Receipt by PCS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then PCS’ rights and ownership in relation to the Software, and this contract, shall continue. 8.3 It is further agreed that, until ownership of the Software passes to the Client in accordance with clause 8.1: (a) the Client is only a bailee of the Software and must return the Software to PCS on request; and (b) the Client holds the benefit of the Client’s insurance of the Software on trust for PCS and must pay to PCS the proceeds of any insurance in the event of the Software being lost, damaged or destroyed; and (c) the Client must not sell, dispose, or otherwise part with possession of the Software, other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Software then the Client must hold the proceeds of any such act on trust for PCS and must pay or deliver the proceeds to PCS on demand; and (d) the Client should not convert or process the Software, or intermix it with other software, but if the Client does so then the Client holds the resulting product on trust for the benefit of PCS and must sell, dispose of or return the resulting product to PCS as it so directs; and (e) the Client irrevocably authorises PCS to enter any premises where PCS believes the Software is kept and recover possession thereof; and (f) PCS may recover possession of any Software in transit, whether or not Delivery has occurred; and (g) the Client shall not charge or grant an encumbrance over the Software, nor grant nor otherwise give away any interest in the Software while its remains the property of PCS; and (h) PCS may commence proceedings to recover the Price notwithstanding that ownership of the Software has not passed to the Client. 9. Personal Property Securities Act 1999 (“PPSA”) 9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Software, and/or any monetary obligation of the Client to PCS for services, previously supplied (if any), and that will be supplied in the future, by PCS to the Client. 9.2 The Client undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which PCS may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, PCS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby; (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Software in favour of a third party without the prior written consent of PCS; and (d) immediately advise PCS of any material change in its business practices of selling the Software which would result in a change in the nature of proceeds derived from such sales. 9.3 PCS and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. 9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. 9.5 Unless otherwise agreed to in writing by PCS, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA. 9.6 The Client shall unconditionally ratify any actions taken by PCS under clauses 9.1 to 9.5. 10. Security and Charge 10.1 In consideration of PCS agreeing to supply the Software, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 10.2 The Client indemnifies PCS from and against all PCS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PCS’ rights under this clause. 10.3 The Client irrevocably appoints PCS and each director of PCS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf. 11. System Requirements 11.1 The Client hereby acknowledges that: (a) unless specified otherwise by PCS in writing, the Software is designed for use only on Microsoft Windows XP, Microsoft Windows Vista and Microsoft Windows 7 operating systems. The Client agrees that such system requirement remain the Client’s responsibility; and (b) the Client may be required to obtain updates or upgrades for the Software from time to time, as may be necessary for the continued use of the Software. PCS shall not, unless specified otherwise in writing: (i) be responsible for supplying such updates or upgrades for the Software; and (ii) make any representations as to the accuracy of the requirements specified in subclause (a) in relation to such updates or upgrades; and (iii) be liable for any loss or damage caused by any updates or upgrades of the Software. 12. End User License Agreement 12.1 The Software is subject to the terms and conditions of this contract, and the terms and conditions of an end user license agreement or other agreement from the manufacturer of the Software (collectively, the “EULA”). If the Client does not agree to the EULA, or fails to fulfil its obligations under this contract (including, but not limited to, the full payment of the Price), it is not authorised to use the Software. Unless otherwise expressly agreed in writing by the manufacturer, the Software is licensed and not sold to the Client, irrespective of any use of the words “purchase,” “sale,” “reseller” or similar terms in this contract or on PCS’ website. Unless, and only to the extent permitted by the EULA, or applicable law, the Client represents and warrants that it shall use the Software in accordance with the EULA and will not use the Software for any unlawful purpose. In addition to and without limiting the foregoing, the Client shall: (a) keep the Software in confidence and not disclose or make it available to any third party; or (b) not rent, lease, loan, license, sublicense, distribute, make available, transfer, assign, sell, reproduce, adapt, translate, disclose, display, publish, exploit for commercial purposes, or modify the Software, or any components thereof; or (c) use the Software solely for internal business purposes and not in the operation of a service bureau or shared services environment; or (d) not create derivative works based on the Software, or any components thereof, or combine the Software with any other software; or (e) not remove, obscure, or alter the copyright notices, trademarks, or other proprietary rights notices that appear in the Software; or (f) obtain, at its own cost and expense, all software and equipment necessary to use the Software; or (g) obtain, at its own expense, all licenses and authorisations required for the acquisition, delivery or use of the Software; upon PCS’ request, the Client will provide PCS with evidence of such licenses or authorisations; and the Client will be liable to PCS for all expenses or charges incurred by PCS as a result of the Client’s failure to obtain such licenses or authorisations; or (h) not reverse engineer, decompile, reverse assemble, or attempt in any manner to discover the source code of the Software; or (i) have no right, title or interest in any of the intellectual property in or associated with the Software, including, without limitation, patent, copyright, trademark, trade secret, knowhow, ideas, technical information, user interfaces, processes, “look and feel,” improvements and modifications (collectively “IP Rights”), and the Client acknowledges and agrees that PCS or the manufacturer retains all of the IP Rights; or (j) not export or re-export the Software; or (k) comply with all laws, rules and regulations applicable to the Software, including, without limitation, the restrictions, controls, customs duties, laws, rules and regulations of the territory to where Delivery is made, or the territory where the Software is used. 12.2 Subject to clause 13 of this contract, the remedies set forth in the EULA shall be the Client’s sole and exclusive remedies with regard to the Software. 12.3 With respect to certain Software, it shall be the Client’s responsibility to renew the Software license or subscription. At any time the Client may elect to not renew the license or subscription for a forthcoming renewal term, in which case such license or subscription shall be terminated upon the expiration of the then-current term. Upon such termination, the Client shall uninstall and destroy all copies of the Software and discontinue all use of the Software, unless and only to the extent the Client is permitted by the EULA or applicable law to retain copies of the Software. 13. Defects and Warranties 13.1 The Client shall inspect the Software on Delivery and shall, within fourteen (14) days of such time (being of the essence), notify PCS of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description, quotation or order. The Client shall afford PCS an opportunity to inspect/review the Software within a reasonable time following such notification if the Client believes the Software defective in any way. If the Client shall fail to comply with these provisions the Software shall be presumed to be free from any defect or damage. For defective Software, which PCS has agreed in writing that the Client is entitled to reject, PCS’ liability is limited to either (at PCS’ discretion) repairing or resupplying the Software, but only to the extent that such refund shall take into account the value of Software which has been supplied to the Client which was not defective. 13.2 Software will not be accepted for return other than in accordance with 13.1 above. 13.3 For Software not manufactured by PCS, the warranty shall be the current warranty provided by the manufacturer of the Software, and the conditions applicable to such warranty will be contained on a “Warranty Card” that may be supplied with the Software. PCS shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Software. 14. Default and Consequences of Default 14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PCS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 14.2 If the Client owes PCS any money, the Client shall indemnify PCS from and against all costs and disbursements incurred by PCS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PCS’ collection agency costs, and bank dishonour fees). 14.3 Further to any other rights or remedies PCS may have under this contract, if the Client has made payment to PCS by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by PCS under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract. 14.4 Without prejudice to any other remedies PCS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions PCS may suspend or terminate the supply of Software to the Client, repossess the Software as per clause 8.3(f) and/or revoke the Client’s licence to use the Software. PCS will not be liable to the Client for any loss or damage the Client suffers because PCS has exercised its rights under this clause. 14.5 Without prejudice to PCS’ other remedies at law, PCS shall be entitled to cancel all, or any part, of any order of the Client which remains unfulfilled, and all amounts owing to PCS shall, whether or not due for payment, become immediately payable if: (a) any money payable to PCS becomes overdue, or in PCS’ opinion the Client will be unable to make a payment when it falls due; or (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client, or any asset of the Client; or (d) the Client fails to comply with any terms and conditions of this contract or the EULA. 15. Cancellation 15.1 PCS may cancel any contract to which these terms and conditions apply, or cancel Delivery at any time before the Software is delivered, by giving written notice to the Client. On giving such notice PCS shall repay to the Client any money paid by the Client for the Software. PCS shall not be liable for any loss or damage whatsoever arising from such cancellation. 15.2 In the event that the Client cancels this contract, or Delivery, the Client shall be liable for any and all loss incurred (whether direct or indirect) by PCS as a direct result of the cancellation (including, but not limited to, any loss of profits). 15.3 Cancellation of orders for Software made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed. 16. Limitation of Liability; Indemnification; Release 16.1 As between the parties, the Software is delivered “as is” and the Client’s use of the Software is at its own risk. PCS does not make any representations, warranties or guarantees of any kind whatsoever. To the maximum extent permitted by law, and this contract, PCS hereby disclaims, and the Client hereby waives, all warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement, or any warranty that may arise by usage of trade, course of dealing or course of performance of this contract. 16.2 In no event shall PCS be liable for any special, punitive, exemplary, direct, indirect, incidental, or consequential damages (including, without limitation, damages for loss of business, loss of revenue or profits, business interruption, or loss of data) arising out of, or in connection with, this contract or the subject matter hereof, even if PCS has been previously advised of the possibility of such damages. In any event, if PCS should be held liable for any damages notwithstanding the terms and conditions of this contract, the entire liability of PCS with respect to its obligations under this contract or otherwise, for any reason and upon any cause of action, regardless of the number of actions or number of licensed copies of the Software (and whether based in contract, strict liability, negligence or otherwise) shall not exceed, in the aggregate, the Price. No cause of action which accrued more than one (1) year prior to the filing of a suit alleging such cause of action may be asserted against PCS. The limitations of liability in this contract shall survive even if any exclusive or limited remedies provided in this contract should fail of their essential purpose. 16.3 The Client shall indemnify, defend and hold harmless PCS, and each of its officers, directors, shareholders, agents, representatives, licensees and employees (each, an “Indemnified Party”), from and against any and all claims, losses, liabilities, damages, actions, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, without limitation, court costs and reasonable attorneys’ and consultancy fees), arising directly or indirectly, in whole or in part, out of: (a) any breach or threatened breach of this contract by the Client; or (b) the Client’s use of the Software; or (c) the Client’s negligence, gross negligence or wilful misconduct. 16.4 An Indemnified Party may participate in the defence by counsel of its own choosing, at its own cost and expense. The Client shall not settle any claim that adversely affects an Indemnified Party or imposes any obligation or liability on an Indemnified Party without the Indemnified Party’s prior written consent. 16.5 To the maximum extent permitted by law, the Client hereby releases each indemnified party from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of, or in connection with, disputes between the Client and third parties (including the manufacturer) concerning the Software, or this contract. 17. Privacy Act 1993 17.1 The Client authorises PCS or PCS’ agent to: (a) access, collect, retain and use any information about the Client; (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or (ii) for the purpose of marketing products and services to the Client. (b) disclose information about the Client, whether collected by PCS from the Client directly or obtained by PCS from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client. 17.2 Where the Client is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993. 17.3 The Client shall have the right to request PCS for a copy of the information about the Client retained by PCS and the right to request PCS to correct any incorrect information about the Client held by PCS. 18. Confidentiality 18.1 All data and information relating to the Client’s business shall be treated as confidential by PCS, its staff and contractors. PCS, after consultation with the Client, may alter, reschedule, reject or dispose of any data or information that it thinks fit. No information of the Client will be disclosed to any third party without the written consent of the Client. 19. Dispute Resolution 19.1 If a dispute arises between the parties to this contract then, in the first instance either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing refer such dispute to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996. 20. General 20.1 The failure by PCS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PCS’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Hamilton District Court of New Zealand. 20.3 If the Client is purchasing the Software for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Software by PCS to the Client. 20.4 The Client hereby disclaims any right to rescind, or cancel any contract with PCS or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by PCS and the Client acknowledges that the Software is purchased relying solely upon the Client’s skill and judgment. 20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by PCS nor to withhold payment of any invoice because part of that invoice is in dispute. 20.6 This contract may not be assigned without the prior written consent of the other party, and such consent shall not be reasonably withheld. However, PCS may license or sub-contract all or any part of its rights and obligations without the Client’s consent. 20.7 The Client agrees that PCS may amend these terms and conditions at any time. If PCS makes a change to these terms and conditions, then that change will take effect from the date on which PCS notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for PCS to supply Software to the Client. 20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 20.9 The Client warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.