GEOMAGIC, INC. END-USER LICENSE AGREEMENT
THIS END-USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY, OR BOTH) AND GEOMAGIC, INC. ("GEOMAGIC"). IF YOU ARE INSTALLING OR OTHERWISE ACQUIRING THIS SOFTWARE AS PART OF YOUR JOB RESPONSIBILITIES, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND THE TERMS OF THIS AGREEMENT APPLY BOTH TO YOU AND TO THE LEGAL ENTITY THAT HAS EMPLOYED OR ENGAGED YOU.
CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING AND/OR USING GEOMAGIC'S SOFTWARE. BY CLICKING ON THE "I ACCEPT" BUTTON OR INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT LICENSED TO INSTALL OR USE THE SOFTWARE, AND YOU SHOULD CLICK ON THE "CANCEL" BUTTON AND CONTACT YOUR SUPPLIER FOR RETURN INSTRUCTIONS.
YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR DEVICE TO AUTOMATICALLY CONNECT TO THE INTERNET, MAY RELY ON LICENSE KEYS, AND MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED. USE AND ACTIVATION OF THE SOFTWARE OPERATES AS YOUR CONSENT TO TRANSMIT CERTAIN DEVICE AND/OR USER INFORMATION TO GEOMAGIC AND TO THE USE OF LICENSE KEYS.
This Agreement may only be amended by a written agreement signed by both parties; with the exception provided that updated terms may be provided to you with any upgrade delivered to you. Any conflicting terms or conditions which may accompany your order do not apply. If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control (except for any officially translated non-English version included by Geomagic into the Software). You should keep a copy of this Agreement for your records.
1. CERTAIN DEFINITIONS.
1.1 "Business Partner" means a third party organization under a separately executed and written agreement with Geomagic whereby Geomagic has authorized such third party to promote, market or support the Software or offer related services. By default, a Business Partner will receive licenses restricted to Business Partner Use.
1.2 "Business Partner Use" means use of the Software by a Business Partner to provide sales, support and implementation services to Users and potential End Users of the Software for so long as Geomagic determines that the Business Partner is actively partnered with Geomagic. Licenses granted for Business Partner Use may not be used for Commercial Use (other than set forth in the prior sentence) and specifically may not be used for fee-generating work or "for profit" training classes delivered by a Business Partner.
1.3 "Commercial Use" means use of the Software in support of any fee-generating, for-profit or other commercial activities.
1.4 "Country" means the country in which you acquired the right to use the Software from Geomagic or a Business Partner. If you acquired the software from Geomagic or a Business Partner for use in a Country within the European Union ("EU") or European Free Trade Association ("EFTA"), then for purposes of this definition, Country means any country within the EU or EFTA as applicable.
1.5 "Device" means a single physical or virtual personal computer, workstation, hand-held device, server or other electronic device owned or leased by you which may be used only by a User and which accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. Each virtual computing environment you implement counts as a separate Device.
1.6 "Documentation" means the explanatory printed or electronic user manuals and other technical and "help" materials for the Software that Geomagic or a Business Partner places in the Software or delivers to you for use with the Software.
1.7 "Dongle" means a pice of hardware provided to you by Geomagic or a Business Partner which attaches to a Device and works with a License Key to allow a Device to use the Software under a Dongle License.
1.8 "Dongle License" is a license type authorizing installation of the Software on one or more Devices within your Network for use by a User solely on a Device where a Dongle has been physically attached.
1.9 "Educational Use" means use of the Software for classroom instruction as part of a degree-seeking curriculum or research by staff at an educational institution and not for Commercial Use.
1.10 "OEM Edition Use" means use of the Software designated by Geomagic as an OEM Edition, or words of similar meaning, solely and exclusively in support of the specific scanning hardware with which a Business Partner has bundled such Software.
1.11 "Install" whether or not capitalized means to place a copy of the Software onto a hard disk or any other storage medium or service through any means.
1.12 "License Key" means the license activation key generated by Geomagic and provided to you only by Geomagic or a Business Partner which identifies: (a) the Software licensed to you; (b) the Permitted Number of Devices and/or Users it may be used on or by; (c) the License Term;(d) the License Type;(e) the Usage Type; and (f) activation codes that you must input on a Device to initialize use of the Software.
1.13 "License Term" means the length of time Geomagic has granted for an applicable license as set forth in the Documentation or the period for which you have paid, whichever is shorter. The License Term begins upon first installation of the Software on a Device or within 90 days of acquiring the software, whichever is earlier. For licenses granted for Commercial, Educational or Viewing Use, the default term is perpetual. For licenses granted for Trial Use or Business Partner Use, the default terms are thirty (30) and ninety (90) days respectively.
1.14 "License Type" means either a Node Lock License, Dongle License or Network License. Geomagic's default License Type is Node Lock.
1.15 "Network" means your internal, private, proprietary computing network supporting Users located within a single Country.
1.16 "Network License" is a license to: (a) install the Software on any Devices connected to a Network onto which the Geomagic license management tool has been deployed; and (2) use the Software on up to the Permitted Number of Devices and/or with the Permitted Number of Users as reported by the Geomagic license management tool.
1.17 "Node Lock" means installation and use of the Software on a single Device.
1.18 "Permitted Number" means the number of Devices or Users authorized under a Network License as specifically identified in the Software or the Documentation. The default Permitted Number is one.
1.19 "Software" means: (a) the computer software with which this Agreement is provided including but not limited to Geomagic and third party software files provided in object-code, machine readable form as well as other computer information; (b) the Documentation and associated information; and (c) any modified versions and copies of, upgrades, updates and additions to the foregoing provided to you by Geomagic at any time and to the extent not provided under a separate written (including an electronic end user license) agreement.
1.20 "Trial Use" means use of the Software for trial and evaluation purposes and not for Commercial Use. During Trial Use, some functionality within the Software may be restricted until you acquire another type of license. A License Key authorizing Trial Use for an initial License Term of thirty (30) days is contained within most Software. Unless Geomagic authorizes an extended Trial Use by providing a new License Key, you may only use the Software for Trial Use, only once, on a single Device.
1.21 "Usage Type" means use either for Business Partner Use, Commercial Use, Educational Use, OEM Edition Use, Trial Use, or Viewing Use. The Geomagic default Usage Type is Viewing Use.
1.22 "Use" whether or not capitalized means to use or benefit from the functionality of the Software.
1.23 "User" means you or any individual who is: (a) one of your employer's full time, part-time or temporary employees or (b) an independent contractor on assignment and physically present at your place of business. In the case of an educational institution, User includes all students, faculty and staff who meet the requirements for Educational Use.
1.24 "Viewing Use" means use of the Software solely as a viewer of certain file types as enabled by the Software. The License Key authorizing Viewing Use is contained within the Software itself and does not need to be separately provided by Geomagic or a Business Partner. During Viewing Use, the majority of functionality within the Software will be restricted until you acquire another type of license.
If you rightfully obtained the Software from Geomagic or a Business Partner and for so long as you comply with the terms of this Agreement, then Geomagic grants you a non-exclusive, non-transferable license, without right of sub-license, to use in object code form only the Software in the Country, restricted to the Usage Type, with the Permitted Number of Devices and/or by the Permitted Number of Users for the License Type, and for the specified License Term as may be authorized by a License Key (the "License"). Termination of the License for any reason shall not terminate the other terms of this Agreement. You may make and retain reasonable copies of the Software solely for backup or archival purposes and so long as not used.
3. ALL RIGHTS RESERVED.
Software is licensed, not sold, to you pursuant to this Agreement. Geomagic and its suppliers reserve all rights not expressly granted and retain ownership of the Software and all associated intellectual property rights. The Software is protected by various intellectual property laws in the United States and other countries as well as international treaty provisions. The structure, organization and code, including source code, of the Software are the valuable trade secrets and confidential information of Geomagic and its suppliers. No right or license, express or implied, is granted in this Agreement for use of any Geomagic trade names, trademarks or service marks. You agree to use the Software in accordance with the Documentation and as authorized by the License Key as well as any associated license manager software provided as part of, or used in connection with, the Software.
Any usage of the Software outside the scope of the applicable License grant constitutes an infringement of Geomagic's intellectual property rights as well as a material breach of this Agreement.
4.1 Use. You may not install, access, copy or otherwise use the Software except as expressly authorized in this Agreement.
4.2 Reverse Engineering. You may not disassemble, decompile or otherwise reverse engineer the Software in order to discover the source code or related proprietary information and trade secrets, or have a third party do so, except to the extent expressly permitted by applicable law notwithstanding this limitation and then only in order to achieve interoperability with the Software.
4.3 Notices. You may not remove, alter, or obscure any proprietary notices, labels or marks from the Software.
4.4 Derivative Works. You may not modify, translate, adapt, arrange or create derivative works based on the Software.
4.5 Bypass of License Restrictions. You may not utilize any software, equipment or other means to circumvent or remove any form of copy and license management protection used by Geomagic to monitor Software use, or use the Software together with any code, serial number or activation code obtained from any source other than Geomagic or Business Partners.
4.6 Use After License Term. You may not use the Software after expiration of the License Term.
4.7 Transfers. You may not distribute, rent, loan, lease, sublicense or otherwise transfer or assign all or any portion of the Software, or any rights granted in this Agreement, to any third party without Geomagic's prior written consent. You may transfer the Software licensed for Commercial Use and the rights granted under this Agreement to a different Device internal to your organization and within the Country provided you first completely remove the Software from all prior Devices. Transfers of the Software outside of the Country in which you originally and lawfully obtained the right to use it with a License Key are not permitted under any circumstances. In order to accomplish an internal transfer you may have to contact Geomagic and fees may apply.
4.8 Use Outside of Country. You may not use the Software, including under a Network License, outside of the Country in which you acquired the right to use the Software.
4.9 Multiplexing. Use of software or hardware that reduces the number of electronic devices directly monitored or managed by the Software or directly using the Software (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of licenses required. You are required to have licenses for the Permitted Number of distinct inputs to the multiplexing or pooling hardware/software "front end".
4.10 Extension of Capabilities. You may develop your own applications that interoperate or integrate with the Software subject to the terms of this Section 4.10. Geomagic prices its Software, among other factors, based on capabilities that we expose to you. You may not extend the Software to enable or unlock capabilities of the Software not specifically identified by Geomagic as forming part of the specified end user functionality.
4.11 Separation of Components. The Software is licensed as a single application. Component parts of the Software may not be separated or installed or used on multiple Devices.
4.12 Time Sharing and Automated Use. You may not use the Software in an automated, unattended, non-interactive server application or component where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users. Examples which would violate this Section include but are not limited to use as an automated file translation service.
4.13 Competitive Evaluation. Unless specifically authorized by Geomagic in writing, if you are a competitor to Geomagic's business, you may not use the Software for competitive evaluation.
5. UPDATES AND UPGRADES. You may not use any Software identified as an update or upgrade unless you are properly licensed to use Software which Geomagic has identified as being eligible for such update or upgrade as applicable. Updates and upgrades may only be provided to you if you are under an active maintenance agreement with Geomagic or if you have paid the applicable fees for such update or upgrade. After you install such update or upgrade, you may continue to use any such previous version in accordance with its end-user license agreement only if: (a) the upgrade or update and all previous versions are installed on the Device; (b) the previous versions or copies thereof are not transferred to another party or Device unless all copies of the update or upgrade are also transferred and (c) you acknowledge that any obligation that Geomagic may have had to support the previous version(s) under a separate written agreement may be ended upon the availability of the update or upgrade. Upgrades and updates may be licensed to you by Geomagic with additional or different terms.
6. LIMITED WARRANTY AND DISCLAIMERS. Geomagic represents and warrants that the Software shall perform substantially in accordance with the specifications set forth in the accompanying Documentation for a period of sixty (60) days after delivery of the Software (the "Warranty Period"). Geomagic does not warrant that the Software or the functions contained in the Software will meet your requirements. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) GEOMAGIC MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THIS SOFTWARE OR ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE FOR ANY PURPOSE, AND (B) THE SOFTWARE IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM USAGE IN TRADE OR A COURSE OF DEALING. YOU ACKNOWLEDGE THAT THE SOFTWARE IS MERELY A TOOL AND NOT A SUBSTITUTE FOR YOUR PROFESSIONAL JUDGMENT, AND YOU ASSUME SOLE RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, GEOMAGIC DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERUPTED OR ERROR FREE.
7. LIABILITY. Geomagic's entire liability to you under this Agreement (including anyone making a claim through your use of the Software) and your exclusive remedy shall be that, Geomagic will, at its option, repair or replace the Software where there is a reproducible material variance from the specifications set forth in the accompanying Documentation that is reported within the Warranty Period, so long as the Software has not been modified, misused or abused. GEOMAGIC AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR (A) INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES OF ANY SORT, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE (INCLUDING ANY LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR PERSONAL INJURY), EVEN IF GEOMAGIC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE SHALL GEOMAGIC'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE LICENSE FEE RECEIVED BY GEOMAGIC FOR THE SOFTWARE. NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. GEOMAGIC PRICES ITS SOFTWARE WITH THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT, YOU ACKNOWLEDGE THAT GEOMAGIC WOULD PRICE AND PACKAGE THE SOFTWARE DIFFERENTLY IN THE ABSENCE OF THIS ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION 7 AND THE DISCLAIMERS SET FORTH IN SECTIONS 6 AND 8.
8. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct lift support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Geomagic specifically disclaims any express or implied warranty of fitness for High Risk Activities.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software is acquired for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government") it is provided with RESTRICTED RIGHTS. The Software and Documentation are "commercial computer software" and "commercial computer software documentation" as well as "restricted computer software." Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/Manufacturer is Geomagic, Inc.
10. LAWS. You agree to comply with all United States and other applicable laws and regulations that apply to the Software, including all United States export and import laws and regulations. You agree not to download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with such laws. You acknowledge that the Software, Documentation and/or underlying information or technology may not be downloaded, accessed or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software, you represent and warrant that: (x) no United States federal agency has suspended, revoked, or denied your export privileges, (y) you are not located in or under the control of a national or resident of any such country or on any such list, and (z) you will not export or re-export the Software to any prohibited country, or to any prohibited person, entity, or end-user as specified by U.S. export controls or any other applicable jurisdiction, including but not limited to the United States Export Administration Regulations and end-user, end-use and country destination restrictions issued by the United States and other governments. You shall indemnify, defend and hold Geomagic harmless for any breach of your obligations pursuant to this Section.
11.1 No Assignment. This Agreement, the License and any other rights hereunder are non-assignable by you without Geomagic's written consent and any purported assignment shall be null and void.
11.2 Choice of Law and Venue. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of North Carolina, USA, without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods, or any successor thereto, shall not apply to this Agreement. The parties each consent to sole and exclusive jurisdiction and venue in a state or federal court of competent jurisdiction in Raleigh, North Carolina for any dispute arising out of or in connection with this Agreement and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
11.3 Entire Agreement. This Agreement and the applicable Documentation sets forth the entire agreement between you and Geomagic and supersedes any and all prior representations, discussions, undertakings, communications, understandings and advertising relating to the Software. No Geomagic employee, Business Partner or other person is authorized to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the representations or promises contained in this Agreement.
11.4 Severability. If and to the extent that any portion of this Agreement is held illegal, invalid or unenforceable in whole or in part under applicable law, such provision or portion thereof shall be ineffective solely in the jurisdiction in which it is illegal, invalid or unenforceable and solely to the extent of any such illegality, invalidity or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law as to give the maximum effect to the intent of the parties.
11.5 Insolvency. The License shall terminate automatically in the event that you breach this Agreement or you become bankrupt or insolvent or go into liquidation.
11.6 Feedback, Updating and Data Collection. You may contact Geomagic with input regarding your reactions, comments, and suggestions for improvement regarding the Software, including but not limited to usability, missing features, functional errors and bug reports. All such reports and other feedback you provide to Geomagic may be used by Geomagic for any purpose whatsoever without royalties or other compensation of any kind to you, and Geomagic will be the sole owner of any and all programs, documentation, inventions or improvements developed by Geomagic that may relate to such reports and feedback. You agree that Geomagic may collect and use information gathered as part of support and other services provided to you. You acknowledge and agree that the Software may cause your Device to automatically connect to the Internet to check for updates or upgrades that may be available for automatic download to your Device and to let Geomagic know that any such update or upgrade has installed successfully. Geomagic may also automatically collect and report back to Geomagic information about the Software and your usage along with limited information about your Device and other third-party applications. If Geomagic implements automated data collection practices then you may opt out of providing such data if you have a license that authorizes Commercial Use.
11.7. License Key. Installation, access and continued use of the Software may require use of a License Key and/or registration. You must register your acquisition of the Software with Geomagic before any License Key will be issued to you. A License Key may disable the Software if you try and transfer it to another Device, if you make material changes to the operating system or time control mechanisms of the Device or attempt to use the Software past the License Term. You agree that Geomagic may automatically connect to one or more Devices to install a License Key and to let Geomagic know that any such License Key has installed successfully.
11.8. Reporting and Inspection. You agree to keep accurate and up to date records of your Software license rights, including but not limited to the numbers and locations of all copies of the Software made by or for you. It is your responsibility to supervise and control the use of the Software in accordance with the terms of this Agreement notwithstanding that Geomagic may provide you with software tools or other assistance to support you in that regard. To ensure compliance with this Agreement, you agree that upon reasonable notice, Geomagic, or its representatives, shall have the right to inspect and audit your installation and use of the Software. Any inspection or audit will be conducted during regular business hours at your facility or electronically. In conjunction with any such audit or inspection you agree to provide copies of your records relating to installation and use of the Software to Geomagic. If the inspections disclose that you have installed or used the Software in any way that is not permitted under this Agreement then Geomagic may terminate this Agreement immediately and you are liable to pay for any unpaid license fees as well as reasonable costs of the inspection and audit. You agree to promptly notify Geomagic or your chosen Business Partner if your Software usage exceeds your License. In addition, and without limiting the foregoing, you agree to have an authorized officer or manager of your organization fully document and certify that your use of the Software conforms to this Agreement within 14 calendar days after Geomagic’s request. Nothing in this section shall be deemed to limit any legal or equitable remedies available to Geomagic for violation of this Agreement or applicable law.
11.9 Third Party Programs. The Software may contain or include software ("Third Party Programs") licensed by third party vendors ("Vendors"). Vendor software is licensed for use solely in conjunction with the Software and not for any other use. Certain Third Party Programs are subject to additional third party license terms as specified by their respective Vendors, and these terms are included in the Documentation and/or in the installation files provided with the Software. By using the Software, You agree to comply with these additional third party terms for the benefit of the applicable Vendors. Otherwise, the terms and conditions of this Agreement apply to all Third Party Programs. All Vendors are intended third-party beneficiaries of this Agreement. GEOMAGIC PROVIDES THIRD PARTY PROGRAMS TO YOU "AS IS."
11.10 You acknowledge and agree that any violation of the terms of this Agreement by you would irreparably harm Geomagic and that Geomagic may enforce the terms of this Agreement through injunctive relief, without limitation to any other rights and remedies available to Geomagic. Copyright (c) 1996-2013 Geomagic, Inc. All rights reserved.