This English version of the GrabCAD® Software Terms of Service and Use is used as the binding agreement for all legal purposes.
GrabCAD® Software Terms of Service and Use
THESE TERMS AND CONDITIONS (the "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND STRATASYS, INC. ("Stratasys"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IN ANY EVENT, REFERENCES HEREIN TO "Customer" MEANS YOU OR SUCH ENTITY (AS THE CASE MAY BE).
By clicking the "I Accept" button below, by creating an Admin Account (as defined below), or by otherwise accessing or using any part of the Software (as defined below), Customer acknowledges these terms and conditions and represents that it has fully read and understood, and agrees to be bound by, the following (the date of such occurrence being the "Effective Date"):
IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NEITHER CLICK "I ACCEPT", CREATE AN ADMIN ACCOUNT, NOR ACCESS OR USE ANY PART OF THE SOFTWARE.
The language of this Agreement is hereby expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably and unconditionally waives any Law applicable to Customer requiring that the Agreement be localized to meet Customer's language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
Stratasys and Customer (collectively, the "Parties" and each, a "Party") acknowledge that, notwithstanding the Customer clicking the "I Accept" button, the terms and conditions of this Agreement shall not apply, and shall not bind either Stratasys or Customer, if:
1. DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The section and sub-section headings in this Agreement are for convenience of reading only, and shall not be used or relied upon for interpretive purposes.
"Authorized User" means a Customer employee or individual contractor authorized by Customer to register for use of the Software in accordance herewith.
"Documentation" means any manuals, specifications, and similar documentation related to the Software, which accompany the Software, or which otherwise are made available by Stratasys (for example, made available on the Site), which Documentation may change from time to time.
"Feature" means any module, tool, and/or feature of the Software.
"Stratasys Affiliate" means, with respect to Stratasys, any person, organization or entity controlling, controlled by or under common control with, Stratasys. For purposes of this definition only, "control" of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (a) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (b) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
"Intellectual Property" means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registrable.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Order Form" means the online web form(s) Customer submits during the process of creating an Admin Account (defined below).
"Software" means the GrabCAD software suite, whether made available to Customer: (a) on a hosted, web-based service basis via the Site, and/or (b) for download and installation. For the avoidance of doubt: (A) GrabCAD Workbench and GrabCAD Print are each part of the Software; and (B) references herein to the Software also includes its non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces).
"Update" means an upgrade, update (such as a fix or patch), or other modification, enhancement or customization of the Software.
Stratasys reserves the right to modify this Agreement at any time by posting the modified Agreement at https://grabcad.com/ (the "Site"). Such modifications will be effective ten (10) days after such posting, and Customer's continued use of its Admin Account or any part of the Software after such date constitutes Customer's agreement to be bound by the modified Agreement.
Subject to the terms and conditions of this Agreement, Stratasys grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (defined below), to permit its Authorized Users to access (and for distributed components of the Software, download and install) and use the Software in object code form only, and solely for Customer's own benefit and its internal business use (the "License").
For the avoidance of doubt, the Software and any copies of the Software are only licensed under this Agreement, and no title in or to the Software or such copies passes to Customer. Except for the License, Customer is granted no other right in or to the Software, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise. Customer shall be primarily responsible and liable for the acts and omissions of its Authorized Users.
5. LICENSE RESTRICTIONS
Customer shall not (and shall procure that each Authorized User does not) do any of the following: (a) copy or reproduce the Software; (b) sell, assign, lease, lend, rent, issue, sublicense, make available, or otherwise distribute to any third party, or publicly perform, display or communicate, the Software, or otherwise use the Software in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects of, the Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software, such as features that restrict or monitor use of the Software; (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to) the Software; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software, without first sending the results and related study(ies) to Stratasys, and obtaining Stratasys’ written approval of the assumptions, methodologies and other parameters of the testing or study; (h) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; and/or (i) use the Software to infringe, misappropriate or violate any third party's Intellectual Property Rights, moral rights, privacy or other personal right, or any Law.
The above restrictions are limitations on the License, and Customer's full compliance with the above is a condition to the License. For the avoidance of doubt, references in this Section to "Software" shall be taken to mean (A) the Software, whether in whole or in part; and (B) any Documentation.
Customer acknowledges that the Software contains information and materials that are confidential and proprietary to Stratasys (and may even constitute Stratasys' or a Stratasys Affiliate's trade secrets), and therefore Customer agrees that a breach or threatened breach of this Section (License Restrictions) may cause Stratasys to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if Stratasys seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, Stratasys shall not be required to post a bond or to prove the likelihood of irreparable harm.
To the extent Customer is given the right, under any Law applicable to Customer, to receive information and/or materials for purposes of making the Software interoperable with other software products, Customer shall request from Stratasys (in a detailed writing) access to such information and/or materials, and if Stratasys accepts such request, Stratasys may (in its sole discretion) impose additional conditions on such access and use.
6. PAID SUBSCRIPTIONS
Customer acknowledges that Stratasys may, at any time and upon seven (7) days' prior notice (which notice may be made by posting a message on the Site), begin charging for the Software and require Customer to purchase a term-based subscription license under its Admin Account in order to continue accessing and using the Software.
7. CUSTOMER DATA AND STORAGE
Customer alone shall be responsible and liable for the maintenance and backup of all Customer Data. "Customer Data" means any Customer content, data, or other information (such as an stl file), which is uploaded to, stored on, or otherwise processed by the Software. Customer hereby grants Stratasys and all Stratasys Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), perpetual and irrevocable license to copy, reproduce, modify, alter, adapt, arrange, translate, create derivative works of, and otherwise use Customer Data to perform their respective obligations under this Agreement, as well as to make available to Customer, and generally improve, the Software (the "Customer Data License"). Customer hereby represents and warrants that: (a) Customer Data will not infringe, misappropriate or violate any third party's Intellectual Property Rights, moral rights, privacy or other personal right, or any Law; and (b) Customer has, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Customer Data License. The Customer Data License shall survive any termination of this Agreement.
Customer has no obligation to provide Stratasys with any feedback, ideas or suggestions concerning the Software or Documentation (collectively, "Feedback"). Nevertheless, to the extent Customer provide any Feedback, Customer hereby grants Stratasys and all Stratasys Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable (through multiple tiers of sublicensees), assignable, and transferable license to use, copy, reproduce, distribute, modify, alter, adapt, arrange, translate, create derivative works of, publicly display, perform and communicate, and otherwise commercially exploit such Feedback, in any media format and through any media channels, for any purpose whatsoever (the "Feedback License"). Customer hereby represents and warrants that: (a) Feedback will not infringe, misappropriate or violate any third party's Intellectual Property Rights, moral rights, privacy or other personal right, or any Law; and (b) Customer has, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement. Feedback will not be deemed (or treated as) confidential or sensitive to Customer.
9. THIRD PARTY SOFTWARE
The Software may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices ("Third Party Software" and "Third Party Software Terms and Notices", respectively). Stratasys may make available in the Documentation a list (or other index) of such Third Party Software and Third Party Software Terms and Notices, and will comply with any valid written request submitted by Customer to Stratasys for exercising Customer's rights under such Third Party Software Terms and Notices. Customer acknowledges that its use of the Software is also governed by such Third Party Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any covenants, representations, warranties, guarantees, conditions, indemnities or other commitments made by Stratasys in this Agreement concerning the Software (if any), are made by Stratasys and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, Stratasys does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
Stratasys reserves the right to remove, modify, and/or add Features at any time, without any notice to Customer, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria determined by Stratasys. Moreover, if Stratasys determines that Customer is in breach of any provision of this Agreement, Stratasys reserve the right to block Customer from certain Features. A new or modified Feature may be accompanied by separate or additional licensing terms, in which case such terms will apply instead of, or in addition to, this Agreement (as set forth in such licensing terms).
Stratasys may from time to time provide Updates, but is not under any obligation to do so. Such Updates will be supplied according to Stratasys' then-current policies, which may include automatic implementation without any notice to Customer. In some cases, Customer will be required to install the Update manually. All references in this Agreement to "Software" shall include its Updates as well, and this Agreement shall govern any Update unless the Update is accompanied by separate or additional licensing terms, in which case such terms will apply instead of, or in addition to, this Agreement (as set forth in such licensing terms).
During the Term and for two (2) years after termination of this Agreement, Stratasys (or its designated representative), upon reasonable prior written notice to Customer and during Customer's normal business hours, will have the right to audit the Customer's use of the Software to verify Customer's compliance with its obligations hereunder. Stratasys may conduct no more than two (2) audits per calendar year. Customer will reasonably cooperate with Stratasys and its representative (if any) and will address any non-compliance identified by the audit. If the audit reveals a material breach of this Agreement and/or a breach under Section 4 (License) or Section 5 (License Restrictions), Customer shall reimburse Stratasys for the cost and expense of the audit.
This Agreement commences on the Effective Date and will remain in full force and effect until terminated by either Party in accordance herewith (the "Term").
Notwithstanding Section 1213 (Term):
15. CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate, the Admin Account and all User Accounts will be closed; (b) Customer shall immediately cease all access to and use of the Software and Documentation; and (c) Customer shall (unless directed otherwise by Stratasys in writing) promptly uninstall and permanently delete any and all copies of the Software installed on Customer's systems or devices, and, as directed in writing by Stratasys, return, permanently delete, or destroy any other information or materials that are proprietary to Stratasys. Thereafter, Customer shall to certify to Stratasys in writing that it has complied with its obligations in this Section. Following termination of this Agreement, Stratasys may (but shall not be obligated to) offer Customer an opportunity to download or migrate certain Customer Data.
Termination of this Agreement shall not affect any right or liability accrued by either Party as of the effective date of termination. Any provision in this Agreement that is stated to survive termination, shall survive, as will Sections 12 (Audit) and 15 (Consequences of Termination; Survival) through 21 (General) inclusive.
Customer hereby acknowledges that the Software and Documentation are or may be protected by Laws, treaties, and conventions governing Intellectual Property. Any rights not expressly granted herein are hereby reserved by Stratasys and its licensors and suppliers. Stratasys and/or its licensors and suppliers, are the sole and exclusive owners of all Intellectual Property Rights in and to the Software and Documentation.
17. DISCLAIMER OF WARRANTIES
THE SOFTWARE, DOCUMENTATION, AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY STRATASYS, ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT, REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY STRATASYS AND ITS LICENSORS AND SUPPLIERS.
IN ADDITION, NEITHER STRATASYS NOR ITS LICENSOR OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SOFTWARE, DOCUMENTATION, AND SAID OTHER ITEMS; OR (B) THAT CUSTOMER'S USE OF THE SOFTWARE, DOCUMENTATION, OR SAID OTHER ITEMS WILL MEET CUSTOMER'S REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.
Some jurisdictions do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to Customer, Stratasys limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION (DISCLAIMER OF WARRANTIES) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND STRATASYS.
In the event of any third party demand, claim, suit, action and/or proceeding against Stratasys, a Stratasys Affiliate, and/or any of the foregoing entities' respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an "Indemnitee"), and it is based upon or arises from Customer's (for clarity, including any Authorized User's):
(each of the foregoing, a "Claim") then, upon written request by Stratasys (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Claim; provided, however, that (A) Stratasys reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (B) Customer shall not settle any Claim, or admit to any liability thereunder, without the prior express written consent of Stratasys.
In addition, and regardless of whether (or the extent to which) Customer participated in the defense and/or settlement of a Claim, Customer agrees to indemnify and hold harmless the Indemnitee for and against: (i) any costs and expenses (including without limitation reasonable attorneys' fees) incurred by the Indemnitee in the defense of such Claim; and (ii) any amounts awarded against, or imposed upon, the Indemnitee under such Claim, or otherwise paid in settlement of the Claim (including without limitation damages, losses, liabilities, and fines).
19. LIMITATION OF LIABILITY
20. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Furthermore, Customer:
Notwithstanding anything in this Agreement to the contrary, Stratasys may seek injunctive relief, specific performance, and/or other equitable relief in any court worldwide that has competent jurisdiction.
Last Updated: June 28, 2016