SpaceClaim Corporation
End User License and Subscription Services Agreement
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE ACCEPT BUTTON OR DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE BECOMING A PARTY TO A CONTRACT WITH SPACECLAIM CORPORATION (“SPACECLAIM”) AND ARE CONSENTING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE RESTRICTIONS ON USE SET FORTH IN SECTION 2; THE LIMITED WARRANTY SET FORTH IN SECTION 5; AND THE LIMITATIONS ON SPACECLAIM’S LIABILITY SET FORTH IN SECTION 6.
DO NOT CLICK THE ACCEPT BUTTON UNLESS YOU UNDERSTAND AND AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE DO NOT ACCEPT BUTTON AND DO NOT DOWNLOAD OR INSTALL THE SOFTWARE.
YOU MAY PRINT THIS AGREEMENT BY CLICKING ON THE PRINT BUTTON.
THIS AGREEMENT WILL NOT APPLY IF YOU AND SPACECLAIM HAVE ENTERED INTO A SIGNED "HARD COPY" AGREEMENT FOR THE LICENSE OF THE SOFTWARE ON TERMS AND CONDITIONS THAT DIFFER FROM THOSE SET FORTH IN THIS AGREEMENT.
THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION TECHNOLOGY AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING OF THE SOFTWARE. THIS TECHNOLOGY MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET. ADDITIONALLY, ONCE CONNECTED, THE SOFTWARE MAY TRANSMIT YOUR SERIAL NUMBER, OTHER IDENTIFYING INFORMATION ABOUT YOUR COMPUTER AND LICENSE, AND RECORDS OF THE SOFTWARE’S USE AND PERFORMANCE TO SPACECLAIM AND IN DOING SO MAY PREVENT YOUR USE OF THE SOFTWARE IF YOU DO NOT FOLLOW THE ACTIVATION AND INSTALLATION PROCESS OR FAIL TO COMPLY WITH THE LICENSING AGREEMENT. VISIT HTTP://WWW.SPACECLAIM.COM/PRIVACY FOR MORE INFORMATION.
1. Definitions. As used in this Agreement:
(a) “Documentation” means the electronic, online or print user manuals, handbooks and other materials relating to the Software which are provided by SpaceClaim;
(b) “License Term” shall mean the license term set forth in the Order;
(c) “Order” means the purchase order or similar document (written or web) pursuant to which you ordered the Software.
(d) “Software” means the software product(s) downloaded from the SpaceClaim web site, together with any software provided to you by SpaceClaim on CD-ROM or similar media, any updates or upgrades that may be made available to you from time to time and any add-in modules that you may install from time to time;
(e) “Subscription Services” means (i) on-line web access to download the latest updates to the Software; (ii) all major upgrades for the Software generally released by SpaceClaim; and (iii) email and telephone support services (IN ENGLISH ONLY) during SpaceClaim’s normal business hours;
(f) “Subscription Term” means the subscription term set forth in the Order.
(g) “you” means you personally if you acquire a license to the Software for yourself or the company or other legal entity for which you acquire a license to the Software.
2. License.
(a) Grant. SpaceClaim hereby grants to you, and you hereby accept, subject to the terms and conditions set forth in this Agreement, a non-exclusive license, without the right to sublicense, effective during the License Term, to (i) install and use the computer-executable object code of the Software for your internal business purposes in accordance with the rest of this Agreement; and (ii) use the Documentation in connection with your use of the Software. Node locked licenses may only be installed and used on one computer per license issued. Floating licenses and the corresponding SpaceClaim license server software that distributes those licenses may be installed on only one computer, while the SpaceClaim Software may be installed on any number of computers located at the same physical address and within the same local area network as the floating license server, and the Software and Documentation may be used on as many computers simultaneously as the number of floating licenses issued by SpaceClaim. This license is not transferable except as specifically set forth in Section 11(d). The Software includes SpaceClaim API (Application Programming Interface). You may use SpaceClaim API to create applications for use solely in connection with your permitted use of the other Software for your own internal business purposes. You may not provide or make available to any third party any such applications.
(b) Expiration of License Term. Upon the expiration of the License Term, unless you have renewed your license and paid all associated fees, the Software will convert into the SpaceClaim Viewer product.
(c) Copying. You may make a reasonable number of copies of the Software and Documentation for archival and back-up purposes only. You must include on each such copy all copyright or other proprietary notices contained on the Software and Documentation.
(d) Modification, etc. You may not modify or alter the Software or Documentation, translate the Software or Documentation, or create derivative works of the Software or Documentation. The source code of the Software contains valuable trade secrets of SpaceClaim and its licensors. You may not decompile, disassemble or reverse engineer the Software or otherwise attempt to discover the source code of the Software (except only to the extent you may be specifically permitted under applicable law to do so solely in order to achieve interoperability with other independently created software). You may not remove or alter any copyright or other proprietary notice contained on the Software or Documentation.
(e) Restrictions on Transfer. You may not unbundle the component parts or add-in modules, if any, of the Software for use on different computers or attempt to use any such component parts or modules separately from your use of the Software. If you change computers with a node locked license, you must de-install the Software from the old computer before installing it on the new computer. You may not install the Software on a network server, transmit the Software over a computer network, or operate the software from a remote location. You may not sell, license, sublicense, transfer, assign, lease, rent, share or otherwise make available or disclose to third parties (including via an application service provider (ASP), service bureau or timeshare arrangement) the Software or Documentation, except that you may assign your right to use the Software and Documentation in connection with an assignment of this Agreement as specifically permitted in Section 11(d).
(f) Ownership. The Software is protected by copyright laws of the United States and international treaty provisions. Title to and ownership of and all proprietary rights in the Software and Documentation and each copy shall remain at all times with SpaceClaim or its third party licensors. This is not an agreement for the sale of the Software to you. Except as stated above, this Agreement does not grant you any intellectual property rights in the Software.
3. Subscription Services.
(a) Subscription Services. Subject to the provisions of Sections 3(b) and 3(c), during the Subscription Term you will be entitled to receive Subscription Services. You will have to renew, and pay for, Subscription Services in order to receive Subscription Services after that date. If you discontinue Subscription Services and later re-instate Subscription Services, licensee will have to pay all fees for the period during which they did not receive Subscription Services. Subscription Service fees for the second year of the license will remain at the same price as of the previous year.
(b) Limits With Respect to Earlier Production Versions. In no event will SpaceClaim be obligated to provide support with respect to a production version of the Software more than three (3) months after a subsequent production version of the Software has been released by SpaceClaim. Production versions will be identified by the year following the product name (e.g., "SpaceClaim Engineer 2011"). A new production version within the same year will be designated by a "+" appended to the year (e.g., "SpaceClaim Engineer 2011+”). SpaceClaim shall be the sole determinant of what constitutes a new production version.
(c) Certain Limitations for Software not Ordered From SpaceClaim. If you ordered Software from or through a SpaceClaim reseller or partner, and not from SpaceClaim directly, you should contact the reseller or partner for email or telephone support services.
4. Responsibility for Selection and Use of Software. You are responsible for the supervision, management and control of the use of the Software, including, but not limited to: (i) selection of the Software to achieve your intended results; (ii) determining the appropriate uses of the Software and the output of the Software in your business; and, (iii) establishing adequate backup to prevent the loss of data in the event of a Software malfunction. The Software is a tool that is intended to be used only by trained professionals and is not to be a substitute for professional judgment or independent testing of physical prototypes for product stress, safety and utility.
5. Limited Warranty.
(a) Limited Warranty. SpaceClaim warrants solely to you that (i) for a period of 90 days following initial download, the Software will function substantially in accordance with the Documentation, and (ii) any services it provides will be performed in a manner commensurate with usual and customary professional standards. SpaceClaim does not warrant that the Software will meet your requirements or operate without interruption or be error free and does not warrant the results you may obtain by using the Software. SpaceClaim’s sole obligation under this warranty shall be to (i) use commercially reasonable efforts to correct Software that is not functioning substantially in the manner described in the Documentation, provided that you report such malfunction to SpaceClaim and provide reasonably detailed documentation of such malfunction within the warranty period; and (ii) re-perform services not performed in the manner described above, provided that you give prompt notice to SpaceClaim of such failure. EXCEPT AS SPECIFICALLY SET FORTH IN THE PRECEDING SENTENCES, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMIITED BY LAW, SPACECLAIM HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE. HOWEVER, SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
(b) Exceptions. SpaceClaim shall have no liability under this warranty for malfunctions resulting from or caused by (i) alterations or modifications to the Software by anyone other than SpaceClaim; (ii) accident, corruption, misuse or neglect of the Software; (iii) the combination or use of the Software with hardware or software not supported by SpaceClaim; (iv) other software, hardware, network or other infrastructure with which the Software is used; or (v) the failure by you to incorporate and use all updates to the Software available from SpaceClaim.
6. Intellectual Property Infringement.
(a) By SpaceClaim. Except as set forth below, SpaceClaim will defend at its expense any action brought against you to the extent that it is based on a claim that the Software, when properly used within the scope of this Agreement, infringe a United States or Europe patent, copyright or trade secret of any third party and SpaceClaim will pay any costs, damages and reasonable attorneys' fees finally awarded against you in such action which are attributable to such claim; provided that (i) SpaceClaim is notified in writing promptly of the claim, (ii) you permit SpaceClaim to assume sole control of the defense, compromise or settlement of said claim, and (iii) you provide to SpaceClaim reasonable cooperation, information and assistance in connection therewith.
(b) By You. SpaceClaim shall have no liability to you with respect to claims of infringement based on the following: (i) the use or combination of the Software with any other software or hardware not supported by SpaceClaim, if such infringement would not have occurred but for such use or combination, (ii) any modification of the Software by anyone other than SpaceClaim, (iii) the use of other than the current version of the Software, if such version was made available by SpaceClaim for no additional fees with notice that such version was being provided in order to avoid an alleged or potential infringement, (iv) compliance by SpaceClaim with your designs or instructions, or (v) claims of infringement of patents, copyrights or trade secrets of you or your affiliates. You shall, on terms comparable to those set forth in Section 6(a), defend and indemnify SpaceClaim against, claims described in clauses (i), (ii), (iii) and (iv) of this Section (b), to the extent resulting from your act or omission.
(c) THE FOREGOING STATES THE ENTIRE LIABILITY OF SPACECLAIM WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
7. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPACECLAIM WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, EVEN IF SPACECLAIM HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) EXCEPT FOR THE OBLIGATIONS OF SPACECLAIM ARISING UNDER SECTION 6(a), YOU AGREE THAT THE MAXIMUM LIABILITY OF SPACECLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL LICENSE FEES RECEIVED BY SPACECLAIM FROM YOU FOR THE IMMEDIATELY PRECEEDING TWELVE-MONTH PERIOD.
(c) YOU RECOGNIZE THAT THE FEE PAID FOR THE LICENSE RIGHTS HEREIN MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE VALUE OF THE PRODUCTS TO BE DESIGNED IN CONJUNCTION WITH THE SOFTWARE. FOR THE EXPRESS PURPOSE OF LIMITING THE LIABILITY OF SPACECLAIM TO AN EXTENT WHICH IS REASONABLY PROPORTIONATE TO THE COMMERCIAL VALUE OF THIS TRANSACTION, YOU AGREE TO THE FOREGOING LIMITATIONS ON SPACECLAIM’S LIABILITY.
(d) You may not bring any suit or action against SpaceClaim for any reason whatsoever more than one year after the cause of action accrued.
8. Termination.
(a) Term. This Agreement shall commence upon your initial download of the Software and shall continue in effect until the expiration of the License Term or until sooner terminated in accordance with this Section.
(b) Termination By You. You may terminate this Agreement and all licenses granted under this Agreement at any time by discontinuing use of the Software and notifying SpaceClaim; provided, however, that you shall not in any event be entitled to any refund of license or other fees previously paid.
(c) By SpaceClaim. SpaceClaim may terminate this Agreement and all licenses granted under this Agreement if you fail to pay when due any amount owed or if you breach any of your obligations under this Agreement.
(d) Consequences of Termination. Upon termination of this Agreement for any reason, you must: (i) cease to use the Software and Documentation; (ii) destroy all copies of the Software and Documentation; (iii) erase all copies which are stored in computer memory or hard disk or other similar forms or media. At SpaceClaim’s request, you shall certify in writing to SpaceClaim that all such copies have been destroyed and erased. The following shall survive the termination of this Agreement: (i) all liabilities accrued under this Agreement prior to the effective date of termination; and (ii) all provisions of Sections 2(f), 6, 7, 8 and 11 of this Agreement. Subject to the provisions of Section 7 hereof, the rights provided in this Section 8 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of this Agreement by the other party.
9. Export. You agree not to ship, transfer or export the Software or Documentation into any country or use the Software or Documentation in any manner prohibited by any export control laws, restrictions or regulations of the United States (collectively, the “Export Laws”). In addition, i) if the Software or Documentation is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving the Software and Documentation, and, ii) if SpaceClaim has accepted an order from a non-compliant export controlled customer, SpaceClaim has reserves the right to immediately cancel the license.
10. Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
11. Miscellaneous.
(a) Entire Agreement. Unless the parties have executed a "hard copy" agreement for the license of the Software, this Agreement sets forth the complete understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and communications relating thereto. No term or condition of your purchase order or other document provided to SpaceClaim which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon SpaceClaim. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned on your assent to the terms and conditions set forth herein.
(b) Modification; Waiver. This Agreement may not be modified or amended except pursuant to a written instrument signed by both parties. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts as if made in and performed entirely within Massachusetts, United States of America, without regard to any conflict of law principles and excluding application of the United Nations Convention on Contracts for the International Sale of Goods.
(d) Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns, but you may assign or otherwise transfer this Agreement or your rights and duties only with the prior written consent of SpaceClaim, except that you may assign this Agreement, without the prior written consent of SpaceClaim, to the successor of all or substantially all of your assets or business, provided that such assignee agrees in writing to be bound by the terms hereof.
(e) Severability. In the event that any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect.
(f) Headings. The headings of the sections of this Agreement are for convenience of reference only and shall not be considered in construing this Agreement.
(g) Force Majeure. If SpaceClaim is unable to perform any of its obligations under this Agreement due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if SpaceClaim uses reasonable efforts to avoid such occurrence and minimize its duration, then SpaceClaim’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform.
(h) Canadian Users. If you purchased the license for the Software in Canada, you agree to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.
(i) Rights of Licensors. Any licensor of SpaceClaim shall be a third party beneficiary of this Agreement and shall have the right to enforce the terms of this Agreement against you as they relate to components or other material licensed to SpaceClaim by such licensor. To the extent provided in the respective license agreements between SpaceClaim and such licensors, all such licensors and their affiliates (i) disclaim any and all warranties to you; and (ii) disclaim, to the maximum extent permitted by law, liability to you for damages, direct or indirect, incidental or consequential, that might arise from any use of the Software and/or the components or other material licensed to SpaceClaim.
12. Inquiries. If you have any questions about this Agreement, please contact: SpaceClaim Corporation, 150 Baker Ave. Ext., Concord, MA 01742. A copy of this Agreement is included with the Documentation and may also be found on the SpaceClaim web site at www.spaceclaim.com.
Copyright © 2011 SpaceClaim Corporation. All Rights Reserved. SpaceClaim is a registered trademark of SpaceClaim Corporation.
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* Contains BCLS (Bound-Constrained Least Squares) Copyright (C) 2006 Michael P. Friedlander, Department of Computer Science, University of British Columbia, Canada, provided under a LGPL 3 license which is included in the SpaceClaim installation directory (lgpl-3.0.txt). Derivative BCLS source code available upon request.
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[1] Additional notice for LAPACK and ALGLIB Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
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