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 "you" or "your" means you or such entity (as the case may be).
By otherwise using any part of the Site (defined below), you acknowledge these terms and conditions and represent that you has fully read and understood, and agree to be bound by, the following (the date of such occurrence being the "Effective Date"):
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE ANY PART OF THE SITE.
The language of this Agreement is hereby expressly agreed to be the English language. By entering into the Agreement you hereby irrevocably and unconditionally waive any Law applicable to you requiring that the Agreement be localized to meet your language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
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.
"Content" means any text, data, images, graphics, sounds, videos, audio clips, posts, comments, links, and/or software code of or on the Site (such as, but not limited to, User Submissions, as defined below), but for the avoidance of doubt does not include the Software (defined below).
"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 tool and/or feature of the Site (such as GrabCAD Community), but for the avoidance of doubt does not include 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.
"Marks" means trademarks, trade names, logos, design marks, service marks, service names, trade dress, and/or brand names.
"Site" means the website https://grabcad.com/ together with its subdomains and webpages, and, for the avoidance of doubt, also includes its 'look-and-feel' and design and arrangement elements.
"Site Materials" means, collectively, Content and Features (but does not include User Submissions).
"Software" means the GrabCAD software suite made available via the Site, which includes the GrabCAD Workbench and GrabCAD Print modules.
Stratasys reserves the right to modify this Agreement at any time by posting the modified Agreement on the Site. Such modifications will be effective ten (10) days after such posting, and your continued use of any part of the Site after such date constitutes your agreement to be bound by the modified Agreement.
You acknowledge that Stratasys may, at any time and without prior notice, begin charging for certain Site Materials, and require Customer to create an account and purchase a term-based subscription license in order to continue accessing and using said Site Materials.
Subject to the terms and conditions of this Agreement, Stratasys grants you a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (defined below), to access and display locally the Site for the sole purpose of using the Site and Site Materials for your own benefit and non-commercial, internal use (collectively, the "License").
For the avoidance of doubt, the Site and Site Materials (and any copies thereof made available to you) are only licensed under this Agreement, and no title in or to the Site, the Site Materials, or such copies passes to you. Except for the License, you are granted no other right in or to the Site or Site Materials, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.For the further avoidance of doubt, this Agreement does not grant you any right whatsoever in or to the Software (such as GrabCAD Workbench or GrabCAD Print), access to and use of which is governed by the GrabCAD Software Terms of Service and Use available at https://grabcad.com/software_terms. If you would like to learn more about uploading and administering project files to your GrabCAD Workbench account, and organizing project groups and collaborative spaces with other users (which will be private to you and such other users), see help.grabcad.com and our Security Whitepaper at http://blog.grabcad.com/wp-content/uploads/2013/11/GrabCAD-Security-Whitepaper.pdf.
4. LICENSE RESTRICTIONS
Except to the extent expressly permitted otherwise in this Agreement, you shall not (and shall not permit or encourage any third party to) do any of the following: (a) copy or reproduce the Site or Site Materials; (b) sell, assign, lease, lend, rent, issue, sublicense, make available, or otherwise distribute to any third party, or publicly perform, display or communicate, the Site or Site Materials (for example, by uploading another user's User Submission to another website or application), or otherwise use the Site or Site Materials 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 Site or Site Materials; (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 Site or Site Materials; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Site or Site Materials, such as features that restrict or monitor use thereof; (f) make a derivative work of the Site or Site Materials, or use the Site or Site Materials to develop any service or product that is the same as (or substantially similar to) the Site or Site Materials; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Site or Site Materials, 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 Site or Site Materials; and/or (i) use the Site or Site Materials 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 your full compliance with the above is a condition to the License. For the avoidance of doubt, references in this Section to "Site" and "Site Materials" shall be taken to mean the Site and Site Materials, respectively, whether in whole or in part.
You acknowledge that the Site and Site Materials may contain information and materials that are confidential and proprietary to Stratasys (and may even constitute Stratasys' or a Stratasys Affiliate's trade secrets), and therefore you agree 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.
You have no obligation to provide Stratasys with any feedback, ideas or suggestions concerning the Site or Site Materials (collectively, "Feedback"). Nevertheless, to the extent you provide any Feedback, you hereby grant 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, for any purpose whatsoever (the "Feedback License"). You hereby represent and warrant 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) you have, 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 you.
For the avoidance of doubt, Feedback does not include User Submissions (which are subject to Section 6 below).
6. USER SUBMISSIONS
If and when you submit, post, upload or otherwise make available Content (such as CAD files) on or through the Site for public viewing ("User Submissions") you hereby grant:
You hereby represent and warrant that: (a) your User Submissions 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) you have, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the User Submission License and the Cross License. Furthermore, you hereby irrevocably and unconditionally waive (and will caused to be waived), and covenant never (whether during or after the Term) to assert against Stratasys, Stratasys Affiliates, and/or any user of the Site, any moral, privacy or other personal right in or to your User Submissions. The User Submission License and the Cross License shall survive any termination of this Agreement. User Submissions made publicly available will not be deemed (or treated as) confidential or sensitive to you.
You are solely responsible and liable for your User Submissions. Stratasys has no obligation to accept, display, review, or maintain any of your User Submissions, or enforce the Cross License or any of your Intellectual Property Rights in and to User Submissions. Stratasys may, for any reason and at any time, and without notice to you, edit, replace and/or delete your User Submissions, such as, but not limited to, if Stratasys: (a) determines that you are in breach of any provision of this Agreement or have violated (or are suspected by Stratasys of violating) any applicable Law; and/or (b) deems it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce this Agreement (including investigations of potential breaches thereof), detect, prevent, or otherwise address fraud or security issues, or protect against harm to the rights, property or safety of Stratasys, its users, yourself or the public.
It is Stratasys' policy to respect the legitimate rights of copyright owners, and Stratasys will respond to clear notices of alleged copyright infringement in accordance with its then-current Intellectual Property Policy.
7. THIRD PARTY CONTENT AND WEBSITES
The Site may enable you to view, access, link to, and use third party properties and Content, which are not owned or controlled by Stratasys, such as other users' User Submissions ("Third Party Materials"), and your interaction with Third Party Materials may be subject to third party terms and policies, which are is your responsibility to review. Your interaction with and reliance on any Third Party Materials is at your sole discretion and risk.
Stratasys reserves the right to remove, modify, and/or add Features at any time, without any notice to you, 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 you are in breach of any provision of this Agreement, Stratasys reserves the right to block you 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).
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").
Stratasys reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the Site (or any part thereof), for any reason whatsoever, at any time, and without notice to you, and you agree that Stratasys will have no liability or obligation to you for any such termination, modification, suspension, or discontinuance. Your sole remedy in the event you object to any provision of this Agreement or become dissatisfied with the Site or Site Material, is to terminate this Agreement by ceasing to access and use the Site and Site Materials.
12. CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate; and (b) you shall immediately cease all access to and use of the Site and Site Materials. 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 (Consequences of Termination; Survival) through 18 (General) inclusive.
You hereby acknowledge that the Site and Site Materials 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. Except for your User Submissions, Stratasys and/or its licensors and suppliers are the sole and exclusive owners of all Intellectual Property Rights in and to the Site and Site Materials. Marks displayed on the Site (such as, but not limited to, GrabCAD, GrabCAD Community, GrabCAD Workbench, and GrabCAD Print) are the Intellectual Property Rights of Stratasys and/or its licensors and suppliers. For the avoidance of doubt, and except for the User Submission License and Cross License, you retain ownership of all Intellectual Property Rights in and to your User Submissions.
14. DISCLAIMER OF WARRANTIES
THE SITE AND SITE MATERIALS (WHICH, FOR THE AVOIDANCE OF DOUBT, MAY INCLUDE USER SUBMISSIONS AND THIRD PARTY MATERIALS), AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY STRATASYS, ARE PROVIDED AND MADE AVAILABLE TO YOU 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:
Some jurisdictions may not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to you, Stratasys limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.
YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (DISCLAIMER OF WARRANTIES) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU 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 your:
(each of the foregoing, a "Claim") then, upon written request by Stratasys (to be decided in its sole discretion), you agree 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) you 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) you participated in the defense and/or settlement of a Claim, you agree 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).
16. LIMITATION OF LIABILITY
17. 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 you hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Furthermore, you:
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.