PLEASE NOTE THAT THE TERMS OF THIS LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE SOFTWARE.
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
EVALUATION LICENSE. If You are licensing the Software for evaluation purposes, Your use of the Software is only permitted in a non-production environment and for the period limited by the License Key. Notwithstanding any other provision in this Agreement, an Evaluation License of the Software is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied.
1.1 “Affiliate” means, with respect to a party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that party, and here “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of that entity.
1.2 “Documentation” means that documentation that is generally provided to You by Vendor with the Software, as revised by Vendor from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software.
1.3 “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
1.4 “License” means a license granted under Section 2.1 (General License Grant).
1.5 “License Key” means a serial number that enables You to activate and use the Software.
1.6 “License Term” means the duration of a License as specified in the Order.
1.7 “License Type” means the type of License applicable to the Software, as more fully described in the Order.
1.8 “Open Source Software” or “OSS” means software components embedded in the Software and provided under separate license terms, which can be found in the open_source_licenses.txt file (or similar file) provided within the Software.
1.9 “Order” means a purchase order or other ordering document issued by You to Vendor that references and incorporates this Agreement and is accepted by Vendor as set forth in Section 4 (Order).
1.10 “Support Services Terms” means Vendor’s then-current support policies, copies of which are posted at www.________.
1.11 “Software” means the AMAZ3D tool to which You acquire a license under an Order, together with any software code relating to the foregoing that is provided to You pursuant to a support contract and that is not subject to a separate license agreement.
1.12 “Territory” means the country or countries in which You have been invoiced; provided, however, that if You have been invoiced within any of the European Economic Area member states, You may deploy the corresponding Software throughout the European Economic Area.
1.13 “Vendor” means Adapta Studio srl, with registered office in Milan (Italy), Via Giovanni Durando, 39, 20158.
2. LICENSE GRANT.
2.1 General License Grant. Vendor grants to You a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment) license to use the Software during the period of the license and within the Territory, solely for Your internal business operations. Unless otherwise indicated in the Order, licenses granted to You will have a term of a year, will be for use of object code only, and will commence on either delivery of the physical media or the date You are notified of availability for electronic download.
2.2 Copying Permitted. You may copy the Software as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only.
2.3 Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to You under such OSS’s own applicable license terms, which can be found in the open_source_licenses.txt file. These OSS license terms are consistent with the license granted in Section 2 (License Grant), and may contain additional rights benefiting You. The OSS license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on You than the applicable OSS license terms. To the extent the license for any Open Source Software requires Vendor to make available to You the corresponding source code and/or modifications (the “Source Files”), You may obtain a copy of the applicable Source Files by sending a written request, with Your name and address to: [email protected]. All requests should clearly specify: Open Source Files Request. This offer to obtain a copy of the Source Files is valid for three years from the date You acquired this Software.
3. RESTRICTIONS; OWNERSHIP.
3.1 License Restrictions. Without Vendor’s prior written consent, You must not, and must not allow any third party to: (a) use Software in an application services provider, service bureau, or similar capacity for third parties, except that You may use the Software to deliver hosted services to Your Affiliates; (b) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of Vendor’s Software done by or on behalf of You; (c) make available Software in any form to anyone other than Your employees or contractors reasonably acceptable to Vendor and require access to use Software on behalf of You in a matter permitted by this Agreement; (d) transfer or sublicense Software or Documentation to an Affiliate or any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment); (e) use Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in the Order; (f) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, except as specified in Section 3.2 (Decompilation); (g) remove any copyright or other proprietary notices on or in any copies of Software; or (h) violate or circumvent any technological restrictions within the Software or specified in this Agreement, such as via software or services.
3.2 Decompilation. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give You the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, You must first request such information from Vendor, provide all reasonably requested information to allow Vendor to assess Your claim, and Vendor may, in its discretion, either provide such interoperability information to You, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that Vendor’s proprietary rights in the Software are protected and to reduce any adverse impact on Vendor’s proprietary rights.
3.3 Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Vendor and its licensors. Your rights to use the Software and Documentation shall be limited to those expressly granted in this Agreement and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this Agreement or the applicable Order. Vendor reserves all rights not expressly granted to You. Vendor does not transfer any ownership rights in any Software.
Your Order is subject to this Agreement. No Orders are binding on Vendor until accepted by Vendor. Orders for Software are deemed to be accepted upon Vendor’s delivery of the Software included in such Order. Orders issued to Vendor do not have to be signed to be valid and enforceable.
5. RECORDS AND AUDIT.
During the License Term for Software and for two (2) years after its expiration or termination, You will maintain accurate records of Your use of the Software sufficient to show compliance with the terms of this Agreement. During this period, Vendor will have the right to audit Your use of the Software to confirm compliance with the terms of this Agreement. That audit is subject to reasonable notice by Vendor and will not unreasonably interfere with Your business activities. Vendor may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with Vendor and any third party auditor and will, without prejudice to other rights of Vendor, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse Vendor for all reasonable costs of the audit if the audit reveals that You have materially failed to maintain accurate records of Software use.
6. SUPPORT AND SUBSCRIPTION SERVICES.
Vendor does not provide any support or subscription services for the Software under this Agreement. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by Vendor unless you separately purchase Vendor support or subscription services. These support or subscription services are subject to the Support Services Terms.
7.1 Software Warranty, Duration and Remedy. Vendor warrants to You that the Software will, for a period of ninety (90) days following notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Vendor or its authorized representative. Vendor will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to Vendor by You in writing during the Warranty Period. If Vendor determines that it is unable to correct the error or replace the Software, Vendor will refund to You the amount paid by You for that Software, in which case the License for that Software will immediately terminate.
7.2 Software Disclaimer of Warranty. Other than the warranty above, and to the maximum extent permitted by applicable law, Vendor and its suppliers make no other express warranties under this Agreement, and disclaim all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade. Vendor and its licensors do not warrant that the Software will operate uninterrupted or that it will be free from defects or that it will meet your requirements.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
8.1 Defense and Indemnification. Subject to the remainder of this Section 8 (Intellectual Property Indemnification), Vendor shall defend You against any third party claim that the Software infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Your actions) under the laws of the European Economic Area, to the extent that the countries included in such area are part of the Territory for the License (“Infringement Claim”) and indemnify You from the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if You: (i) promptly notify Vendor in writing of the Infringement Claim; (ii) allow Vendor sole control over the defense for the claim and any settlement negotiations; and (iii) reasonably cooperate in response to Vendor requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of Vendor.
8.2 Remedies. If the alleged infringing Software become, or in Vendor’s opinion be likely to become, the subject of an Infringement Claim, Vendor will, at Vendor’s option and expense, do one of the following: (a) procure the rights necessary for You to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund: (i) the fees paid by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 8.2 (Remedies) shall limit Vendor’s obligation under Section 8.1 (Defense and Indemnification) to defend and indemnify You, provided that You replace the allegedly infringing Software upon Vendor’s making alternate Software available to You and/or You discontinue using the allegedly infringing Software upon receiving Vendor’s notice terminating the affected License.
8.3 Exclusions. Notwithstanding the foregoing, Vendor will have no obligation under this Section 8 (Intellectual Property Indemnification) or otherwise with respect to any claim based on: (a) a combination of Software with non-Vendor products (other than non-Vendor products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Software was not designed; (c) use of any older version of the Software when use of a newer Vendor version would have avoided the infringement; (d) any modification to the Software made without Vendor’s express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by Vendor into Software; or (f) any Software provided on a no charge, beta or evaluation basis. This Section 8 (Intellectual Property Indemnification) states Your sole and exclusive remedy and Vendor’s entire liability for any infringement claims or actions.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. To the maximum extent mandated by law, in no event will Vendor and its licensors be liable for any lost profits or business opportunities, loss of use, loss of revenue, loss of goodwill, business interruption, loss of data, or any indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort, negligence, product liability, or otherwise. Vendor’s and its licensors’ liability under this Agreement will not, in any event, regardless of whether the claim is based in contract, tort, strict liability, or otherwise, exceed the greater of the license fees you paid for the Software giving rise to the claim or € 5,000.00 (five thousands/00). The foregoing limitations shall apply regardless of whether Vendor or its licensors have been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
9.2 Further Limitations. Vendor’s licensors shall have no liability of any kind under this Agreement and Vendor’s liability with respect to any third party software embedded in the Software shall be subject to Section 9.1 (Limitation of Liability). You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.
10.1 Agreement Term. The term of this Agreement begins on the notice of availability for electronic download or delivery of the Software and continues until this Agreement is terminated in accordance with this Section 10.
10.2 Termination for Breach. Vendor may terminate this Agreement effective immediately upon written notice to You if: (a) You fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from Vendor that payment is past due; or (b) You breach any other provision of this Agreement and fail to cure within fifteen (15) days after receipt of Vendor’s written notice thereof.
10.3 Termination for Insolvency. Vendor may terminate this Agreement effective immediately upon written notice to You if You: (a) terminate or suspend your business; (b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.
10.4 Effect of Termination. Upon Vendor’s termination of this Agreement: (a) all Licensed rights to all Software granted to You under this Agreement will immediately cease; and (b) You must cease all use of all Software, and return or certify destruction of all Software and License Keys (including copies) to Vendor, and return, or if requested by Vendor, destroy, any related Vendor Confidential Information in Your possession or control and certify in writing to Vendor that You have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 2.3 (Open Source Software), 3 (Restrictions; Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12 (General).
11. CONFIDENTIAL INFORMATION.
11.1 Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labelled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding Vendor’s pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.
11.2 Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
11.3 Exceptions. Recipient’s obligations under Section 11.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
11.4 Data Privacy. You agree that Vendor may process technical and related information about Your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services. To the extent that this information constitutes personal data, Vendor shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation.
12.1 Transfers; Assignment. You will not assign this Agreement, any Order, or any right or obligation herein or delegate any performance without Vendor’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by You will be void. Vendor may use its Affiliates or other sufficiently qualified subcontractors to provide services to You, provided that Vendor remains responsible to You for the performance of the services.
12.2 Notices. Any notice delivered by Vendor to You under this Agreement will be delivered via mail, email or certified email.
12.3 Waiver. Failure to enforce a provision of this Agreement will not constitute a waiver.
12.4 Severability. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.
12.5 Compliance with Laws; Export Control. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Software is of Italian origin, is provided subject to Italian applicable laws, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited.
12.6 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word ‘including’ means “including but not limited to”.
12.7 Governing Law. This Agreement is governed by the laws of Italy (excluding its conflict of law rules). To the extent permitted by law, the court of Milan will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
12.8 Third Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
12.9 Order of Precedence. In the event of conflict or inconsistency among this Agreement and the Order, the terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by You.
12.10 Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.
12.11 Contact Information. Please direct legal notices or other correspondence to Adapta Studio srl, Milan (Italy), Via Giovanni Durando, 39, 20158 – email [email protected] – certified email [email protected] attention to Leonardo Locatelli.