PLEASE READ THIS AUTODESK PRE-RELEASE SOFTWARE LICENSE AND SERVICES ACCESS AGREEMENT (INCLUDING ANY ADDITIONAL AGREEMENT (AS DEFINED BELOW), THE "AGREEMENT") BEFORE ACCESSING OR USING ANY SOFTWARE (AS DEFINED BELOW) OR SERVICE (AS DEFINED BELOW) THAT AUTODESK, INC. ("AUTODESK") MAKES AVAILABLE TO YOU THROUGH ITS PRODUCTS OR ITS WEBSITE (SUCH WEBSITE, THE "SITE"). YOU MUST CLICK THE "I AGREE" BUTTON LOCATED ON THE BOTTOM OF THIS PAGE IN ORDER TO ACCESS OR USE THE SOFTWARE OR SERVICE.
BY CLICKING "I AGREE" AT THE BOTTOM OF THIS PAGE, OR BY COPYING, INSTALLING, UPLOADING, ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE OR BY ACCESSING OR USING THE SERVICE, YOU (A) ARE INDICATING THAT YOU HAVE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND TO THEM ON BEHALF OF THE ENTITY FOR WHICH YOU ARE ACTING ("COMPANY") OR, IF THERE IS NO COMPANY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR COMPANY OR YOURSELF, AS APPLICABLE. A CONTRACT IS THEN FORMED BETWEEN AUTODESK AND EITHER YOU PERSONALLY, IF YOU ACT FOR YOURSELF, OR YOUR COMPANY (AS APPLICABLE, THE "USER").
IF YOU OR YOUR COMPANY DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO LEGALLY BIND YOUR COMPANY OR YOURSELF, THEN (A) DO NOT CLICK "I AGREE" BUT INSTEAD CLICK "I REJECT" AT THE BOTTOM OF THIS PAGE; AND (B) YOU ARE NOT PERMITTED TO ACCESS OR USE THE SOFTWARE OR SERVICE. NOTWITHSTANDING THE FOREGOING, AND WITHOUT LIMITING AUTODESK'S RIGHTS AND REMEDIES IN LAW OR EQUITY, ANY UNAUTHORIZED ACCESS OR USE BY YOU OR YOUR COMPANY STILL CONSTITUTES AGREEMENT AND CONSENT TO THE LICENSE GRANT TO AUTODESK IN SECTION 3.1 AND TO SECTIONS 1, 3.2, 3.3, 4, 5, 6, 7, AND 8.
For good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
The capitalized terms used in this Agreement have the meanings set forth below or elsewhere in this Agreement.
1.1 "Additional Agreement" means an agreement that the parties agree in writing constitutes an Additional Agreement and includes certain terms and conditions for access or use of the Subject Matter.
1.2 "Autodesk Parties" means Autodesk and its affiliates, agents, licensors and suppliers and its and their respective directors, officers, employees, agents and representatives.
1.3 "Data" means User's own raw data and information uploaded or submitted by User in connection with a Service (other than Feedback) and the User-specific design or output generated from the Service, if any, based upon User's own raw data and information.
1.4 "Documentation" means the applicable end-user documentation (if any) that Autodesk may make available from time to time to Users for access or use of Software or a Service.
1.5 "Feedback" means all suggestions, comments, input, ideas, reports, information, content, know-how or other information or data (whether in oral or written form) provided by User to Autodesk or an Autodesk affiliate (whether submitted or provided by the User through the Software, Site or Service, including through the Autodesk Customer Innovation Program or similar programs, in which the User may choose to participate) in connection with the Service, Software, Site or other Autodesk products or services.
1.6 "Permitted Use" means use of the Service for the User's own internal business purposes (e.g., for the design of User's products). For purposes of clarification, Permitted Use does not include providing services (including, but not limited to, design services) to another person or entity.
1.7 "Pre-Release Product" means a pre-release version of Software or Services provided or made available by Autodesk to User, including, without limitation, products and technology downloaded through Autodesk Labs or on Autodesk.com, and all specifications and versions thereof, whether labeled alpha, beta, pre-release, technology preview or otherwise. Pre-Release Product also includes any documentation, updates, upgrades, bug fixes or enhancements to such product and/or technology, software code and/or related pre-release hardware device which Autodesk, in its sole discretion, may choose to provide to User, and all content and other materials, marketing materials and marketing and business plans and other information and documents related thereto, no matter how obtained by User.
1.8 "Service" means any service that Autodesk makes available through the Software, a separate Autodesk product or on the Site, which may include performing analysis, optimization or simulation services on data or models submitted by Users for use (subject to the terms and conditions of this Agreement) in connection with User's business purposes. "Service" includes any Pre-Release Products consisting of Services.
1.9 "Software" means any computer program and similar material provided by Autodesk to User pursuant to this Agreement or through which User accesses a Service, including any and all modules, components, functions and features of a computer program, and any and all updates, upgrades, bug fixes, enhancements and other materials and information related thereto (including, without limitation, the Documentation). "Software" includes any Pre-Release Products consisting of Software.
1.10 "Subject Matter" means the Software, Service, Data (to the extent generated in connection with using a Service), Site and any other information or materials (including, without limitation, confidential information) provided by Autodesk hereunder or generated in connection with using a Service.
2. License Grants; Restrictions
(a) License Grant; Access and Use. Subject to the terms and conditions of this Agreement, Autodesk hereby grants the User a non-exclusive, personal, limited, non-assignable, non-sublicensable, royalty free right to access (solely through the Site or Software that enables such access) and use the Service, solely (i) within User's organization, (ii) for the Permitted Use, and (iii) as and in the form made accessible and/or provided by Autodesk. Further, such access and use may be made only in accordance with the Documentation.
(b) Authorized Users; IDs and Passwords. The User is required to register with Autodesk to access the Service. The Service may be accessed or used only by Users (and for Users that are organizations, its authorized employees and owners) with valid user IDs provided to the User by Autodesk and associated passwords. Each individual User may use only his or her own individual user ID and will not permit any other person to use such user ID. The User acknowledges that it bears sole responsibility for protecting its user ID and password (and, for Users that are organizations, its authorized employees and owners) and that it will be liable for any unauthorized use thereof.
(a) License Grant; Testing and Evaluation. Subject to the terms of this Agreement, Autodesk hereby grants User, under all of Autodesk's intellectual property and proprietary rights, a non-exclusive, personal, limited, non-assignable, non-sublicensable, royalty free license to use the Software at User's location, solely for the purposes of evaluating and testing the Software to access the Service. Except as otherwise explicitly permitted by Autodesk, User may not install or access Software other than on one (1) computer at a time. Without limitation of Sections 5 or 6 below, User acknowledges that the license granted in this Section 2.2(a) is conditioned upon User's acknowledgement that Software may be a Pre-Release Product that has not been fully tested. Without limiting the foregoing, User may not use the Software for competitive analysis or commercial, professional or other for-profit purposes.
2.3 Restrictions. The User may not (and will not have any right to and will not permit any third party to): (a) distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Service, Software or Site, or any rights granted in this Agreement, to any other person or legal entity, (b) remove, alter, or obscure any copyright, trademark, confidentiality or other proprietary notices, labels, or marks from or on the Service, Software or Site, (c) modify, translate, adapt, arrange, or create derivative works based on the Service, Software or Site, or any sample data sets, models or other sample content provided by Autodesk for any purpose, (d) decompile, disassemble or otherwise reverse engineer the Service or Software or permit any third party to do so, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Service or Site, (e) access or use the Service or Site for or in connection with providing services to third parties or to process data or other information on behalf of or otherwise for the benefit of any third party or (f) provide Data that consists of User-specific design or output generated from a Service to any third party for use by that third party other than for the benefit of User. User will not access or use the Software, Service or Site other than as set forth in this Agreement, and any access or use other than in accordance with the terms and conditions of this Agreement is unauthorized. Except as otherwise explicitly permitted by Autodesk, the Software and Service are authorized for use only within the country from which the User acquires the Software and accesses the Service, unless the User acquires the Software and accesses the Service in a member country of the European Union or the European Free Trade Association, in which case the Software and Service are licensed for in all the countries of the European Union and the European Free Trade Association. The restrictions contained in this Section 2.3 will apply to the extent that applicable law (including laws implementing EC Directive 91/250 on the legal protection of computer programs) allows such restrictions to be enforced. The User will bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such restriction.
3. Proprietary Rights
3.1 Data. As between Autodesk and the User, and subject to Sections 2.1 through 2.3, the User has and will own all right, title, and interest in and to the Data. Notwithstanding anything herein to the contrary, User hereby grants Autodesk a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to, store, display, reproduce, modify, use and transmit the Data solely for the purpose of providing and improving the Services, and further waives "moral" rights or other rights with respect to attribution of authorship or integrity of such Data that User may have under any applicable law and under any legal theory. Autodesk (or its sublicensees) may exercise such license for purposes of providing and improving the Service or Software or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data, and to disclose such Data and information and the results of any such analysis in aggregated form or any other form that does not specifically identify the User or the source of such Data or information. The User represents, warrants and agrees that the Data and other materials it provides or makes available to Autodesk will include only design information relevant to the Service and will not include any personally identifiable information. The User is encouraged to maintain copies on the User's own computer or local network of any Data stored by the User in connection with the Service and agrees that Autodesk will have no responsibility or liability with respect to any loss or damage of any Data.
3.2 Feedback. Notwithstanding anything herein to the contrary, the User hereby assigns, and agrees to assign, to Autodesk all right, title and interest in and to the Feedback, effective upon submission or provision to Autodesk thereof. User further waives any "moral" rights or other rights with respect to attribution of authorship or integrity of such Feedback that User may have under any applicable law and under any legal theory.
3.3 Autodesk Rights. As between Autodesk and the User, Autodesk and its licensors own all right, title and interest, including all intellectual property rights, in and to the Software, Service, Site, Pre-Release Products, Feedback and (exclusive of the Data, if any) any data (including sample data sets, models or content provided by Autodesk), information or materials used with or generated by the Software, Site or Service. The User will not take any action to jeopardize, encumber, limit, or interfere in any manner with Autodesk's or its licensors' ownership and rights with respect thereto. Autodesk does not grant the User any right to use its trademarks, trade names, or logos. The User has only the limited rights to access and use the Software and Service as are expressly granted to it under this Agreement, and no other rights are granted or conveyed, or shall be deemed to be granted conveyed, whether by implication, estoppel, or otherwise.
4. Data; User Responsibilities
4.1 Responsibility for Data. The User acknowledges and agrees that the User is solely responsible for all Data the User creates, uploads or submits using the Service (including, without limitation, any comments, information, questions, data, plans, feedback, ideas, descriptions of processes, or other information created, submitted, posted, reproduced, published, distributed, or otherwise transmitted by the User through the Site, Software or Service) and for the User's conduct while using the Service. The User acknowledges and agrees that: (a) the User will evaluate and bear all risks associated with the use of any Data, including any reliance by the User or other users on the accuracy, completeness, or usefulness of the Data; (b) the User is responsible for protecting and backing up the Data; (c) the User (and not Autodesk) is responsible for protecting the confidentiality of any Data; and (d) under no circumstances will Autodesk be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of the User's use, deletion, modification, or correction of any Data.
(c) Service Providers; No Special Personal Data. The User acknowledges that Autodesk may use third-party service providers in connection with the Service, including, without limitation, cloud computing service providers, which may transmit, maintain and store the User's data using third-party computers and equipment in locations around the globe. The User acknowledges that any data storage functionality associated with the Service is not intended for the User's storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver's license numbers, medical information, health insurance information, sensitive data about personal characteristics, such as race, religion, or sexual orientation, or other Personal Data that may pose a risk of harm to the individual if improperly disclosed (collectively, "Special Personal Data"). The User agrees not to upload or store any Special Personal Data in connection with the Service or Software and further agrees that Autodesk will have no responsibility or liability with respect to any such Special Personal Data that is created, transmitted, disclosed or stored in connection with the Service or Software.
(d) User Updates to Personal Data. The User represents and warrants that any information that it provides in connection with use of the Software or Service is and shall remain true, accurate, and complete, and that the User will maintain and update such information regularly. The User agrees that if any information that it provides is or becomes false, inaccurate, obsolete or incomplete, Autodesk may terminate User's access and/or use of the Software and Service.
4.4 Communications Network, Etc. The User will be solely responsible for arranging and paying the cost of access to the equipment, services and other resources required for User to access or use the Subject Matter, including, without limitation, Internet service provider fees, telecommunications fees and the costs of any equipment and third-party software.
5. Warranties; Disclaimers; Disabling Access
5.1 Warranties. The User represents and warrants to Autodesk that the User has the requisite rights to submit, provide, post, reproduce, publish, create, distribute and otherwise transmit all Feedback and Data through the Site and Service and that the Feedback and Data (including any implementation thereof by Autodesk recommended by User or reasonably anticipated in Autodesk's provision of the Service) do not and will not infringe or misappropriate any intellectual property or proprietary right of any third party. The User warrants that the Feedback is not subject to any license terms that would purport to require Autodesk to comply with any additional obligations with respect to any Autodesk products or services that incorporate any Feedback. The User warrants that it is not a competitor of Autodesk.
(a) General. THE SUBJECT MATTER IS PROVIDED "AS IS" AND "AS AVAILABLE". AUTODESK PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY WITH RESPECT TO THE SUBJECT MATTER, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. AUTODESK PARTIES DO NOT WARRANT ANY OF THE FOLLOWING WITH RESPECT TO THE SUBJECT MATTER: THAT ANY USE OR ACCESS WILL BE ERROR-FREE, COMPLETE OR SECURE; THAT OPERATION OR AVAILABILITY WILL BE UNINTERRUPTED; THAT ERRORS OR FAILURES WILL BE CORRECTED OR REMEDIED; THAT IT WILL MEET USER'S REQUIREMENTS; OR THAT IT WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY USER. AUTODESK PARTIES HEREBY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION THE FOREGOING. AUTODESK PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING FROM OR RELATING TO USER'S USE OR INABILITY TO USE ANY SUBJECT MATTER.
(b) Service. AUTODESK PARTIES DO NOT WARRANT THAT THE SERVICE WILL BE PERFORMED IN ANY PARTICULAR MANNER AND HEREBY DISCLAIM LIABILITY FOR NEGLIGENCE AND GROSS NEGLIGENCE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, THE USER ACKNOWLEDGES AND AGREES THAT AUTODESK IS PROVIDING A SERVICE THAT IS INTENDED ONLY TO PERMIT THE USER TO PROCESS DATA FOR ITS OWN BUSINESS AND THAT THE USER IS SOLELY RESPONSIBLE FOR (AND AUTODESK ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS THAT THE USER MAY MAKE, USE OF THE SUBJECT MATTER (INCLUDING, WITHOUT LIMITATION, ANY PROJECTIONS OR RECOMMENDATIONS) OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. AUTODESK PARTIES MAKE NO WARRANTIES TO ANY THIRD PARTY. THE SERVICE IS NOT A SUBSTITUTE FOR THE USER'S OWN JUDGMENT (INCLUDING PROFESSIONAL JUDGMENT, IF APPLICABLE) OR INDEPENDENT TESTING. THE SERVICE IS INTENDED TO ASSIST WITH DESIGN AND/OR ANALYSIS AND IS NOT A SUBSTITUTE FOR INDEPENDENT DESIGN, ANALYSIS, ESTIMATION, OR TESTING OF PRODUCT OR BULIDING STRESS, SAFETY AND UTILITY. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICE, THE SERVICE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. WITHOUT LIMITATION OF SECTION 4.1 OR SECTION 5.2, AUTODESK PARTIES SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICE. PERSONS USING THE SERVICE ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE SERVICE ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY, ACCURACY AND COMPLETENESS OF ANY DATA GENERATED BY THE SERVICE AND ALL ITEMS DESIGNED BY USING THE SERVICE. THE USER FURTHER ACKNOWLEDGES AND AGREES THAT THE SERVICE MAY NOT ACHIEVE THE RESULTS THE USER DESIRES WITHIN THE USER'S DESIGN CONSTRAINTS.
(c) Pre-Release Products. USER EXPRESSLY ACKNOWLEDGES THAT THE PRE-RELEASE PRODUCTS HAVE NOT BEEN FULLY TESTED AND MAY CONTAIN DEFECTS OR DEFICIENCIES WHICH MAY NOT OR WILL NOT BE CORRECTED BY AUTODESK; THAT THE PRE-RELEASE PRODUCTS MAY UNDERGO SIGNIFICANT CHANGES PRIOR TO RELEASE OF THE CORRESPONDING GENERALLY AVAILABLE FINAL VERSION; AND THAT THE GENERALLY AVAILABLE FINAL VERSION MAY NOT CONTAIN CERTAIN FEATURES OR FUNCTIONALITY THAT ARE CONTAINED IN THE VERSION OF THE PRE-RELEASE PRODUCTS LICENSED TO TESTER. NOTWITHSTANDING THE FOREGOING, AUTODESK SHALL HAVE NO OBLIGATION TO RELEASE ANY PRODUCT OR MAKE AVAILABLE ANY SERVICE BASED ON THE PRE-RELEASE PRODUCTS.
(d) This Section 5.2 will be enforceable to the maximum extent allowed by applicable law. No information or advice (whether written, oral or otherwise) provided by any Autodesk Party will create any warranty or in any way affect the disclaimers of warranty or limitations of liability expressly provided in this Agreement.
5.3 Disabling Access. User acknowledges and agrees that installation of and access to the Software and Services may be disabled by activation or security mechanisms if User tampers with the date-setting mechanisms on a computer or in the Software or Services or if User uses Software or Services past any applicable fixed term, and that, in such event, User's access to work product and other data may be affected.
6. Indemnification; Limitation of Liability; Release
6.1 Indemnification. The User agrees to indemnify, defend (at the respective Autodesk Party's request) and hold harmless Autodesk Parties from and against any and all losses, liabilities, proceedings, claims, damages, costs or expenses (including reasonable attorneys' fees) suffered or incurred by an Autodesk Party arising out of or in connection with this Agreement, including, without limitation: (a) an assertion that the Feedback or Data provided by the User, or the use thereof, may infringe or misappropriate any intellectual property or proprietary right of any third party, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials, (b) any breach of or failure by the User to comply with this Agreement or any violation of applicable law, (c) the User's use of the Service, including the information, content, services, and/or products provided therein, or (d) the User's use, performance or possession of the Software and any removal, return or repossession thereof. If requested by Autodesk to defend a third party claim, the User will not agree to any settlement of any such claim without the prior written consent of Autodesk, and Autodesk will have the right to participate, at the User's expense, in the defense of any Claim with counsel of its own choosing. Such indemnity shall survive termination of this Agreement and shall apply regardless of the form of legal action, whether in contract or in tort, including negligence.
6.2 Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (A) IN NO EVENT WILL AUTODESK PARTIES BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE OR OTHER COVER, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR WILL ANY OF THE FOREGOING PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE OR AN ACT OF A THIRD PARTY OR OF NO FAULT ON ITS BEHALF, AND (B) THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF AUTODESK FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS HOWEVER CAUSED OR ARISING FROM OR IN RELATION TO YOUR ACCESS OR USE OF THE SUBJECT MATTER SHALL NOT EXCEED THE LESSER OF THE AMOUNTS PAID BY YOU FOR THE ACCESS OR USE IN RESPECT OF WHICH THE CLAIM ARISES OR TEN THOUSAND U.S. DOLLARS ($10,000.00).
6.3 Release and Waiver. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE USER HEREBY RELEASES AND WAIVES ALL CLAIMS AGAINST AUTODESK PARTIES FROM ANY AND ALL LIABILITY FOR CLAIMS, DAMAGES (ACTUAL AND CONSEQUENTIAL), COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS' FEES) OF EVERY KIND AND NATURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH USE OF THE SUBJECT MATTER OR OTHERWISE RELATED TO THIS AGREEMENT. IF THE USER IS A CALIFORNIA RESIDENT, THE USER HEREBY IRREVOCABLY WAIVES ALL RIGHTS IT MAY HAVE WITH RESPECT TO THE FOREGOING RELEASE UNDER CALIFORNIA CIVIL CODE § 1542, WHICH STATES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." RESIDENTS OF OTHER STATES AND NATIONS SIMILARLY WAIVE THEIR RIGHTS UNDER APPLICABLE AND/OR ANALOGOUS LAWS, STATUTES, OR REGULATIONS.
6.4 Basis of Bargain. The parties agree that releases, waivers, warranty disclaimers, limitations of liability and indemnities provided herein are a fundamental basis of the bargain between the User and Autodesk, and are a material part of the consideration received by Autodesk for the provision of the Subject Matter, and Autodesk would not have entered into this Agreement in the absence of such releases, waivers, warranty disclaimers, limitations of liability and indemnities.
7. Term and Termination
7.1 This Agreement will be effective from the earlier of (a) the date on which the User clicked on the "I Accept" button or (b) the date on which the User first accessed the Software or Service (subject to the first paragraph above) and will continue until terminated as follows. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically on the earlier of (a) the date identified for expiration or termination in materials distributed in connection with the Software or Service, (b) the end of the term identified in materials distributed in connection with the Software or Service, or (c) if no date or term is specified, then on the earlier of the (i) first anniversary of the date on which you clicked on the "I Accept" button below, (ii) first anniversary of the date on which you first downloaded a copy of the Software, or (iii) the commercial release (if any) of a product based on a Pre-Release Product (the "Term").
7.2 Upon termination of this Agreement for any reason, all licenses and other rights granted to the User hereunder will immediately terminate, and the User will immediately cease all use of the Software and Service and uninstall all copies of the Software. Within ten (10) days after any termination or expiration of this Agreement, the User will (at its sole expense) return to Autodesk (upon its request) or destroy any and all Documentation, IDs and passwords provided by Autodesk (and all copies and extracts thereof) and any Pre-Release Products and related tangible materials then in the User's possession or under the User's control. Autodesk reserves the right to require User to show satisfactory proof of such return or destruction. Sections 1 (Definitions), 2.3 (Restrictions), 3 (Proprietary Rights), 4.1 (Responsibility for Data), 4.2 (Rules of Conduct), 4.3 (Privacy), 5 (Warranties; Disclaimers), 6 (Indemnification; Limitation of Liability, Release), 7 (Term and Termination) and 8 (General) will survive termination of this Agreement for any reason. It is the User's responsibility to retain copies of any Data. Upon termination Autodesk shall have the right to immediately delete, without notice, any Data.
8.1 Modifications. Autodesk may modify this Agreement at any time, which modification will be effective immediately upon posting the modified version to the Site. Autodesk reserves the right, from time to time in its sole discretion, to (a) modify or release subsequent versions of the Software or Service, (b) impose license keys or other means of controlling access to the Software or Service, (c) charge a fee for use of the Software or Service, (d) impose a limit on the number of transactions that the User may request through the Software or Service, limit the amount of file storage used, or otherwise limit or suspend the User's access to the Software or Service, and (e) change, suspend or discontinue the Software or Service at any time.
8.2 No Reliance. The Software or Service may include or concern planned or future development efforts for existing or new Autodesk products, technology and/or services. Access to the Software or Service is not intended to be a promise or guarantee of future delivery of products, technology, services or features but merely reflects Autodesk's current plans, which may change. Accordingly, the Software or Service may not be relied on for purchasing decisions or for any other purpose.
8.3 Notices. All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows:
At the address (which may include an email address if no physical address is provided) provided on the registration information of User provided to Autodesk.
111 McInnis Parkway
San Rafael, CA 94903
Attention: General Counsel
Fax: (415) 507-6126
or to such other address as the party to receive the notice or request so designates by written notice to the other. NOTICE IS NOT DEEMED GIVEN UNLESS NOTICE TO AUTODESK'S GENERAL COUNSEL HAS BEEN GIVEN.
8.4 Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If User or another party believes in good faith that materials available on the Site infringe its copyright, User (or its agent) or such other party may send Autodesk a notice requesting that Autodesk remove the material or block access to it. If User believes in good faith that someone has wrongly filed a notice of copyright infringement against User, the DMCA permits User to send Autodesk a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to:
111 McInnis Parkway
San Rafael, CA 94903
Tel: (415) 507.5000
Fax: (415) 507.6128
Autodesk suggests that User consult its legal advisor before filing a notice or counter-notice. Autodesk shall at all times have the right to remove any material (including Data) in its sole discretion, regardless of any notice or counter-notice, and without any liability on account thereof.
8.5 Claims of Copyright Infringement. This Agreement will be construed and controlled by the laws of the State of California, and the User consents to jurisdiction and venue in the federal courts sitting in San Francisco, California, unless no federal subject matter jurisdiction exists, in which case the User consents to jurisdiction and venue in the Superior Court of Marin County, California. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The User waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its reasonable attorney's fees, costs and other expenses.
8.6 Independent Contractors. The parties hereunder are operating as independent contractors, and nothing in this Agreement will be construed as creating a partnership, franchise, joint venture, employer-employee or agency relationship.
8.7 Severability. If any provision of this Agreement will be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that if any provisions are deemed not enforceable, they will be deemed modified to the extent necessary to make them enforceable.
8.8 Costs. Each party will be responsible for covering their respective costs and expenses in performing their duties under this Agreement, unless expressly provided otherwise in this Agreement.
8.9 Headings. The Section headings used in this Agreement are for convenience only and will not be given any substantive effect.
8.10 Waiver. The failure of Autodesk to enforce at any time any provisions of this Agreement, or any rights in respect thereto, or to exercise any election herein provided, will not be considered as a waiver of such provisions, rights, or elections with respect to subsequent events, or in any way to affect the validity and the enforceability of this Agreement.
8.12 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If the User acquired the license for the Software in Canada, the User agrees 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 will 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.
8.13 U.S. Based Website. The Site is controlled and operated by Autodesk from the United States, and, except as expressly set forth herein, is not intended to subject Autodesk to the laws or jurisdiction of any state, country or territory other than that of the United States. Autodesk does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, the User does so on its own initiative and at its own risk, and is responsible for complying with all local laws, rules and regulations. User shall comply with all export control laws of the United States, and refrain from exporting or re-exporting any Software or related technical information. Autodesk may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction Autodesk chooses, at any time and in Autodesk's sole discretion.
USER SHOULD PRINT AND KEEP A COPY OF THIS AGREEMENT FOR ITS RECORDS.
ADDITIONAL AGREEMENT FOR PROJECT GALILEO ONLINE (PRE-RELEASE ONLY):
The parties hereby agree to the following additions and/or changes to the Autodesk Pre-Release Software License and Services Access Agreement with respect to the Project Galileo Online Pre-Release Product.
Replace Section 1.3 (Data) with the following paragraph:
1.3 "Data" means all content, designs, models, files, materials, documents, project information, comments, notes, images, names, email addresses and other data and information uploaded or submitted by User in connection with a Service (other than Feedback).
Replace Section 1.10 (Subject Matter) with the following paragraph:
1.10 "Subject Matter" means the Software, Service, Data (to the extent used or accessed in connection with using a Service), Site and any other information or materials (including, without limitation, confidential information) provided by Autodesk hereunder or generated in connection with using or accessing a Service.
Delete "within User's organization, (ii)" from Section 2.1(a) (License Grant; Access and Use).
Add to the end of Section 2.1(b) (Authorized Users; IDs and Passwords):
Each User acknowledges and agrees that Autodesk may access and store his or her email address and corresponding Autodesk user IDs in connection with his or her use of the Galileo Online Service. In addition, if the User elects to receive notices of changes or updates to Data in a Galileo Online Account of which the User is a member or participant, as described in Section 2(d) below, User consents to receive such updates.
Add the follow new paragraphs as Sections 2.1(c) and 2.1(d):
2.1(c) Sharing Data Through the Service; Treatment of Data. The Galileo Online Service will automatically create an account (a "Galileo Online Account") through which the User may share Data with other Users of the Service. Once a User creates a Galileo Online Account, the User can select and add to the account the email addresses of other individuals with whom the User wants to share Data, and an auto-generated email will be sent to each individual that the User selects with information on how to connect to the Service and/or the User's Galileo Online Account. The User, including other Users assigned certain permissions, will be responsible for maintaining, managing, adding and/or deleting email addresses in connection with the User's Galileo Online Account. Each User acknowledges and agrees that, if he or she chooses to share Data with other Users through the Service (whether by publishing the Data to a group or otherwise), other Users will be able to create, view, use, modify, post, delete, and update Data within the User's Galileo Online Account. Autodesk acknowledges that it does not own the Data that Users make available through the Service. Each User is solely responsible for protecting and backing up his or her own Data. In addition, each User acknowledges and agrees that he or she may delete Data from the Service; however, deleted Data may persist in backup copies for a reasonable period of time, and Autodesk shall have no responsibility or liability for the deletion of or failure to store any Data. Autodesk further reserves the right to delete inactive accounts or purge Data from time to time in its sole discretion, without notice, and may remove any Data that is posted to the Service without notice if it believes that it such Data exceeds reasonable storage limits. Upon expiration of the technology preview on the published date, Autodesk may delete all User Data. Users are not guaranteed future use or access of their Data beyond the published expiration date of the Service.
Replace Section 2.2(b) (Product Marking; CIP and Related Programs) with the following paragraph:
2.2(b) Product Marking. Autodesk reserves the right to individually sign (or electronically watermark) each download of the Pre-Release Products, and the files created from such Pre-Release Products, allowing Autodesk to track its Pre-Release Products and the files created with it, to the person or entity originally downloading the Pre-Release Products.
Add to the end of Section 3.1 (Data):
User hereby agrees that Autodesk will have no responsibility or liability for the deletion of or failure to store any Data. Autodesk further reserves the right to delete inactive accounts or purge Data from time to time in its sole discretion, without notice, and may remove any Data that is posted to the Service without notice if it believes that such Data exceeds reasonable storage limits. Upon expiration of the technology preview on the published date, Autodesk may delete all User Data. Users are not guaranteed future use or access of their Data beyond the published expiration date of the Service.
Add the following new paragraph as Section 4.3(e):
4.3(e) Information provided. For Pre-Release Products that incorporate the Autodesk CIP (Customer Involvement Program) or similar programs, User shall participate in such programs. These programs collect system and other product information. A description of Autodesk CIP is provided at http://usa.autodesk.com/adsk/servlet/index?id=12264110&siteID=123112. Participation in the Autodesk CIP (Customer Involvement Program) or similar programs may cause User's computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with and deliver data to an Autodesk server or server of an Autodesk service provider. By participating, User consents to automatic delivery to Autodesk (where applicable) and to Autodesk's use of the information gathered by the Pre-Release Program, CIP and related programs. User may change the CIP or similar program settings to discontinue participation in the program by following the applicable instructions. Autodesk and its service providers may collect metrics consisting of certain non-personally identifiable data based on usage of the Services (such as session length and usage levels) for product and service improvement purposes.
Add to the end of Section 5.2 (Service):
IN ADDITION, THE USER ACKNOWLEDGES AND AGREES THAT ANY DATA, INFORMATION OR MATERIAL OBTAINED THROUGH THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK, AND USER IS SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA. USER'S SOLE AND EXCLUSIVE REMEDY IF USER IS DISSATISFIED WITH THE SERVICE IS TO CEASE USING THE SERVICE.
Add to the end of Section 8.13 (U.S.-Based Website):
User represents and warrants that no Data created or submitted by User is subject to any restriction on disclosure, transfer, download, export or re-export under U.S. export control laws, and that User will not use the Site or Service to disclose, transfer, download, export or re-export, directly or indirectly, any Data to any country, entity or other party which is ineligible to receive such items under the export control laws or under other laws or regulations to which User may be subject.