exocad America, Inc.: exocad Technology Preview Software Terms and Conditions
1. Introduction
exocad America, Inc. of 600 W. Cummings Park, Suite 4100, Woburn, MA 01801, USA has developed a CAD Software program for the design and production of Partial Denture Frameworks, called the exocad Technology Preview ("ETP"). When used in conjunction with certain 3rd party software provided by exocad GmbH (the "3rd party CAD Software"), the combined product is herein known as the Partial Denture Technology Preview ("PDTP"). exocad America, Inc. ("Licensor") has the right to use and distribute the Software, as defined below, worldwide to purchasers, subscribers and grantees ("End-Users").
exocad GmbH is not a party to this License Agreement and has no rights or obligations under this Agreement.
Licensor reserves any right not expressly granted to the End-User. Licensor will not be bound by any modification, additions or deletions to these Terms and Conditions, unless Licensor has signed a written agreement accepting such changes in the Terms and Conditions. Any proposed modification, additions or deletions by any person or entity are hereby rejected and of no effect.
2. Definitions
2.1 "Software" is the proprietary CAD software developed by exocad America for the design and production of a particular type of dental prosthetics known as Partial Dentures.
2.2 "End-Users" are those who have either purchased a license from or been granted a license to the 3rd Party CAD Software by exocad GmbH, exocad GmbH affiliates or authorized resellers. This includes only those persons or entities with a current, valid license to use the 3rd party CAD Software, including the employees and authorized consultants of the license-holder, (together the "Authorized Users") provided that each license is available to accept updates during the contract period defined by exocad GmbH, and is directly for or directly benefits the license-holder and is used only on the computer specified in the license which is owned or leased by the license-holder. The authorized computer is the "Location".
3. License
Licensor hereby grants to End-User a non-exclusive, non-transferable, temporary license to install and allow Authorized Users to operate the Software only for the purpose of designing dental restorations at the designated location(s). All other purposes are expressly forbidden. The Software may only be used with an inserted USB dongle which is licensed, produced, and delivered by exocad GmbH, its affiliates or authorized resellers. Licensor has no obligation to ensure or assist with the acquisition of an exocad dongles from exocad. End-User should contact exocad directly regarding its products at http://www.exocad.com.
End-User shall prohibit and restrict access to the Software by non-Authorized Users and for non-authorized purposes at all times.
4. Transfer of License
End-User may not sub-license or otherwise distribute the Software to any other person or entity. Any such sub-license, assignment or distribution shall be null and void.
5. Restrictions
The End-User may NOT adapt, modify, translate, sublicense, rent, lease, loan, resell for profit, assign or otherwise distribute copies of the Software to any third party. The End-User may NOT create derivative works based on the Software or any part thereof. The End-User may NOT de-compile, reverse engineer, disassemble or otherwise reduce the Software to a human readable form.
6. Confidential Information
The Software and its documentation ("Confidential Information") are the sole and exclusive trade secrets of Licensor. End-User may use the Confidential Information during the term of this Agreement only as permitted hereunder. The End-User acknowledges that the Software contains valuable confidential information and trade secrets and that unauthorized use or copying are harmful to Licensor. The End-User agrees to use its best efforts and to take all reasonable steps to safeguard the Software to ensure that no unauthorized person(s) shall have access thereto and that no unauthorized copy, publication, disclosure or distribution in whole or in part, in any form, shall be made.
The following information shall not be considered confidential information: (i) information which is or becomes public domain through no fault or act of the End-User; (ii) information which is independently developed by End-User without the use of or reliance on Licensor's Confidential Information, as evidenced by End-User's written records; (iii) information which was provided to End-User by someone under no duty of confidentiality to Licensor; or (iv) information which is required to be disclosed by End-User under law, provided, however, End-User has given prior written notice thereof to Licensor.
7. Term and Termination
This Software is provided for a limited time, with a pre-coded termination date. This Agreement automatically terminates upon the pre-coded termination date, unless Licensor agrees in writing to extend the termination date. This Agreement is effective until terminated by either the Licensor or the End-User. This Agreement will terminate immediately and automatically, without notice from Licensor, if the End-User fails to comply with any of its provisions, or at the specified termination date, whichever is earlier. Upon termination the End-User must remove all copies of the Software from End-User's computers and destroy the Software and its documentation and all copies thereof. The End-User may terminate this Agreement at any time upon written notice to Licensor. The Licensor may terminate this Agreement at any time by providing notice to End-User, which notice may be provided electronically and may be effective immediately, upon Licensor's sole discretion.
8. Government Approval
End-User shall obtain at its own expense any federal, state or other public approval, if any are necessary. Licensor may choose to support the End-User in those efforts but has no obligation to do so.
9. Representation and Warranties
Licensor represents and warrants to End-User that: Licensor owns or has the lawful right from others to grant the rights to the Software set forth herein; as of its shipment date from Licensor or date on which Licensor makes the Software available for download by End-User, Licensor has no knowledge the Software infringes any third party intellectual property rights, such as patents, copyrights, trade secrets or trademarks, in the United States.
If the Software is found to infringe any third party intellectual property right in a Legal Action, as defined in Section 10 below, at Licensor's sole discretion and expense, Licensor may: obtain a license from such third party for End-User's benefit; replace or modify the Software so that it is no longer infringing; or if neither of the foregoing is commercially feasible, terminate this Agreement with no further liability to End-User.
ALL SOFTWARE IS PROVIDED TO THE END-USER "AS IS." LICENSOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS OR WILL BE FREE OF ERRORS. LICENSOR ALSO DISCLAIMS ANY COMMITMENT TO PROVIDE MAINTENANCE OR SUPPORT OF THE SOFTWARE IN THE ABSENCE OF A SEPARATE SOFTWARE MAINTENANCE AGREEMENT SIGNED BY LICENSOR AND END-USER. FURTHERMORE, THE SOFTWARE MAY BE DERIVED FROM OR INCLUDE SOFTWARE FROM THIRD PARTY LICENSORS, WHO MAKE NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND WHO WILL NOT UNDERTAKE TO PROVIDE ANY INFORMATION OR SUPPORT REGARDING THE SOFTWARE.
THE WARRANTIES SET FORTH ABOVE WITH RESPECT TO THE SOFTWARE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED BY LICENSOR AND ITS THIRD PARTY LICENSORS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS EMPLOYEES OR AGENTS SHALL IN ANY WAY EXTEND, MODIFY OR ADD TO THE FORGOING WARRANTY.
10. Indemnification
Licensor hereby agrees to indemnify, defend and hold End-User harmless from any third party suit, claim or other legal action ("Legal Action") that alleges the Software infringes any U.S. patent, copyright or trade secret, including any reasonable costs or legal fees thereby incurred by End-User. However, End-User shall give written notice of any Legal Action to Licensor within fifteen (15) days of End-User's first knowledge thereof, and any failure by End-User to give such notice to Licensor shall terminate Licensor's duty of indemnification hereunder. Licensor shall have sole and exclusive control of the defense of any Legal Action, including the choice of direction of any counsel. End-User shall not settle or compromise any Legal Action without the written consent of Licensor.
11. LIMITATION OF REMEDIES
IN NO EVENT WILL LICENSOR, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR DISTRIBUTORS BE LIABLE TO THE END-USER FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT, SPECIAL OR EXEMPLARY (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY TO THE END-USER (IF ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE GREATER OF THE AMOUNT ORIGINALLY PAID TO LICENSOR FOR THE LICENSE OF THE SOFTWARE OR ONE HUNDRED DOLLARS (USD $100).
12. Enhancements
From time to time Licensor may, at its sole discretion, advise the End-User of updates, upgrades, enhancements or other improvements or new releases of the Software (collectively, "Enhancements"), and may license the End-User to use such Enhancements. Such Enhancements may require a fee to be paid by End-User, as such fee may be established by Licensor from time to time. All such enhancements to the Software provided to the End-User shall also be governed by the terms of this Agreement.
No direct support for End-Users will be provided by the Licensor. Licensor shall have no obligation to provide any: maintenance, support, training, installation assistance or Enhancements, unless there is a separate agreement signed by both Licensor and End-User.
13. General
This Agreement will be governed by and construed in accordance with the laws of the State of Massachusetts, and shall inure to the benefit of Licensor and End-User and their successors, assigns and legal representatives. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable to any extent under applicable law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Any notices or other considerations to be sent to Licensor must be sent by U.S. certified mail to exocad America, Inc. of 600 W. Cummings Park, Suite 4100, Woburn, MA 01801. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly canceled and superseded. This Agreement may not be changed or amended except by a written instrument executed by a duly authorized officer of Licensor. exocad GmbH is not a party to this Agreement and has no rights or obligations under this Agreement.
ACKNOWLEDGMENT. BY ACCEPTING THIS SOFTWARE, THE END-USER, INCLUDING ITS AUTHORIZED USERS, AGREES TO THE SOLE JURISDICTION AND VENUE OF THE COURTS LOCATED IN MIDDLESEX COUNTY, MASSACHUSETTS. THE END-USER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.