ROBODK END USER LICENSE AGREEMENT
BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON ROBODK’S WEBSITE AT WWW.ROBODK.COM (AS MAY BE RELOCATED BY ROBODK INC. ("ROBODK") FROM TIME TO TIME). IN THE EVENT YOU ARE REDIRECTED TO ROBODK’S WEBSITE, YOU AGREE THAT YOUR USE IS SUBJECT TO ANY TERMS OF SERVICE OR PRIVACY POLICIES POSTED THEREON. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND ROBODK. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
This End User License Agreement ("Agreement") is between RoboDK and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user ("you"). This Agreement covers the Software license and Support and Maintenance Services in connection with the Software.
1. Definitions
a) "Authorized Computer" means a desktop computer for which the applicable license fees have been paid, as stated on the Ordering Document, on which you are authorized to install and/or use the functionality in the Software.
b) "Documentation" means any supporting product help and technical specifications documentation provided by RoboDK with the Software to you.
c) "Ordering Document" means any order on an RoboDK order form which references this Agreement. Each Ordering Document which references this Agreement is deemed a part of this Agreement.
d) "Software" means the proprietary RoboDK software products known as "RoboDK", provided in object code form (or as otherwise specified in any related Ordering Document) for installation on a desktop computer including any upgrades, modified versions (including any trial version, educational version and professional version), updates, additions, and copies of the Software. "Software" also includes any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the Software and Documentation are referred to collectively herein as "Software".
2. License
2.1. RoboDK Software
In order to use the Software under this Agreement, you must activate and/or register your copy of the Software with the valid license key or activation code provided to you ("Product Key") at the time of installation. The total count of Authorized Computers on which the Software is installed must not exceed the number of licenses purchased on the applicable Ordering Document(s). For each such license you may install, via the Product Key, one copy of the Software on one computer.
2.2. Grant of License
Subject to the terms and conditions of this Agreement, and except as set forth in Section 5, RoboDK grants you a limited, worldwide, non-transferable, non-sublicensable, non-exclusive license to use the Software for which you have been issued a Product Key by RoboDK during the Term, but only in accordance with: (i) the Documentation; (ii) the restrictions in Section 2 and any restrictions on the applicable Ordering Document; and (iii) the number of Authorized Computers.
2.3. Archive/Disaster Recovery Copies
You are entitled to make a reasonable number of copies of the Software for archival and disaster recovery purposes. Any copies that you are permitted to make pursuant to this Agreement must contain the same terms and conditions as this Agreement.
2.4. Third Party Software
The Software incorporates or interacts with third party components delivered with the Software and that are subject to the terms and conditions of the third party software licenses ("Third Party Software") listed at http://robodk.com/third-party-licenses, as may be modified by RoboDK from time to time to reflect changes in the composition of Third Party Software. Please note that the Third Party Software includes so-called "open source" software, which can provide certain additional rights to end users. To the extent required by the licenses that accompanies the Third Party Software, the terms of such licenses will apply in lieu of the terms of this Agreement with respect to such Third Party Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
2.5. Electronic Delivery
All Software and Documentation will be delivered by electronic means unless otherwise specified on the applicable Ordering Document. Software will be deemed delivered when it is made available for download by you ("Delivery").
2.6. License Restrictions
You must not (and must not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Software; (d) modify any part of the Software, create a derivative work of any part of the Software or incorporate the Software into or with other software, except to the extent expressly authorized in writing by RoboDK or as permitted by an applicable Open Source Software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Product Key or copy protection used by RoboDK in connection with the Software, or use the Software together with any authorization code, Product Key, serial number, or other copy protection device not supplied by RoboDK; (g) use the Software to develop a product which is competitive with any RoboDK product offerings; (h) use unauthorized Product Keys or keycode(s) or distribute or publish keycode(s) except as may be expressly permitted by RoboDK in writing; or (i) enable access to the Software for a greater number of Authorized Computers than the sum quantity of licenses purchased on the applicable Ordering Document(s).
2.7. Educational Pricing
If this Software was obtained through or in accordance with a RoboDK "Educational Pricing" plan, option, grant, schedule or program, it may not be used by anyone, including you, to conduct any simulations, robot programming, computer aided design, computer aided drafting, computer aided machining, or training activities that, directly or indirectly, generate or otherwise result in monetary revenues for the benefit of any individual or any entity, other than the school that originally received this Software.
2.8. Enforcement Obligations
In the event you become aware that any person or entity in your employ or under your control is using the Software in a manner not authorized by this Agreement, you shall immediately take all steps necessary to stop such unauthorized use of the Software. You shall promptly notify RoboDK in writing of any unauthorized use of the Software of which you become aware.
2.9. Special Features and Versions
You acknowledge that certain special features of the Software have expiration date and certain versions of the Software may require a permanent connection to RoboDK’s servers through Internet to track the average use, fix bugs and improve the Software, as may be determined by RoboDK from time to time.
2.10. Trademarks
Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark.
3. Ownership
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, RoboDK has and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, the Documentation and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
4. Payment
You must pay all fees associated with the Software licensed and Support and Maintenance Services purchased hereunder as set forth in the applicable Ordering Document. All payments must be made in the currency noted on the applicable Ordering Document within thirty (30) days of the Delivery of the Software to you. Except as expressly set forth herein, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, RoboDK will invoice you for all applicable taxes including, but not limited to, GST, PST, VAT, sales tax, consumption tax or service tax. You will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by you hereunder will be your sole responsibility.
5. Term of Agreement
5.1. Term.
As the term of the license under this Agreement is perpetual, this Agreement is effective as of the Delivery of the Software and expires when you permanently cease to use the Software, unless it is otherwise terminated in accordance with the provisions of this Section 5.1 (the "Term"). Either party may terminate this Agreement (including all related Ordering Documents and any Support and Maintenance Services then in force) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that RoboDK may terminate this Agreement immediately upon any breach of Section 2.6 or if you exceed any other restrictions contained in Section 2; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.2. Termination.
Upon any expiration or termination of this Agreement, you must cease any and all use of any Software, destroy all copies thereof and so certify to RoboDK in writing upon request.
5.3. Survival.
Sections 2.6, 3, 4, 5, 6.3, 7, 9 and 10 will survive any termination or expiration of this Agreement.
6. Limited Warranty and Disclaimer.
6.1. Limited Warranty
RoboDK warrants to you that for a period of ninety (90) days from Delivery (the "Warranty Period") it owns the Software and/or is in possession of valid and existing licenses that support the terms of this Agreement. RoboDK does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. RoboDK’s sole liability (and your exclusive remedy) for any breach of this warranty will be, in RoboDK’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or work-around which corrects the reported non-conformity, or if RoboDK determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the applicable Software. For the avoidance of doubt, this warranty applies only to the initial shipment of Software under an Ordering Document and does not renew or reset, for example, with the delivery of (a) Software updates or maintenance releases or (b) Product Keys.
6.2. Exclusions
The above warranty will not apply: (i) if the Software is used with hardware or software not authorized; (ii) if any modifications are made to the Software by you or any third party; (iii) to defects in the Software due to accident, abuse or improper use by you; or (iv) to any Software provided on a no charge or evaluation basis.
6.3. Documentation
While RoboDK makes every effort to ensure that its Documentation for the Software is accurate and up-to-date, it cannot guarantee the Documentation at all times represents the latest operation and functionality of the Software. The content of the Documentation, in electronic or printed form, for the Software is provided for informational purposes only. The content of the Documentation may be changed without notice to you. RoboDK expressly disclaims any warranty or representation that the Documentation is an accurate and/or current reflection of the Software’s operation and performance.
6.4. Disclaimer of Warranties
THIS SECTION 6 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS". ROBODK MAKES NO OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
7. CONFIDENTIALITY
7.1. Acknowledgement
You hereby acknowledge and agree that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of RoboDK, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree to treat (and take precautions to ensure that your employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
7.2. Maintenance of Confidential Information
You agree to keep confidential all confidential information disclosed to you by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner you protect the confidentiality of similar information and data of your own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that you shall not have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by you to the recipient; (c) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by you; (d) have been known otherwise by the recipient before communication by you; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than yourself) lawfully having possession of such information.
7.3. Injunctive Relief
You acknowledge that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to RoboDK of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render RoboDK's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If you breach any of its obligations with respect to the use or confidentiality of the Software or Documentation, RoboDK shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
8. Support AND Maintenance services
Subject to the terms and conditions of this Agreement, and the applicable Ordering Document, you may purchase, including for renewal terms, support and maintenance services as set forth in RoboDK’s then-current Support and Maintenance Policies ("Support and Maintenance Services") and as specified in your Ordering Document. All Support and Maintenance Services renewals will be subject to the terms and conditions of this Agreement including RoboDK’s then-current Support and Maintenance Services policies.
9. Limitation of Remedies; Indemnification and Damages
9.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY
IN NO EVENT WHATSOEVER WILL ROBODK, OR ITS EMPLOYEES, SHAREHOLDERS, DISTRIBUTORS OR AUTHORIZED REPRESENTATIVES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS SOFTWARE LICENSE AGREEMENT OR THE USE OF THE SOFTWARE, EVEN IF ROBODK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL DAMAGES SHALL INCLUDE, WITHOUT LIMITATION, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND LOSS OF OR DAMAGE TO ANY PRODUCTS THAT THE SOFTWARE IS USED IN CONJUNCTION WITH. THIS DISCLAIMER SHALL REMAIN IN FULL FORCE AND EFFECT, EVEN IN THE EVENT THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL FAIL OF ITS ESSENTIAL PURPOSE. ROBODK’s ENTIRE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS SOFTWARE LICENSE AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEE THAT YOU PAID FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE OF ACTION THAT GAVE RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE DISCLAIMERS AND RESTRICTIONS SET FORTH ABOVE SHALL APPLY REGARDLESS OF THE NATURE OF YOUR CLAIMS, BE THEY BASED IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE.
9.2. Survival and Applicability
The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.3. RoboDK Indemnification
RoboDK will defend you from and against any claim by a third party alleging that the Software when used as authorized under this Agreement infringes such third party’s copyright and will indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by RoboDK (including reasonable attorneys’ fees) resulting from such claim, provided that RoboDK must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for RoboDK to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from you. If your use of the Software is (or in RoboDK’s opinion is likely to be) enjoined, if required by settlement or if RoboDK determines such actions are reasonably necessary to avoid material liability, RoboDK may, in its sole discretion: (a) substitute for the Software substantially functionally similar programs and documentation; (b) procure for you the right to continue using the Software; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to you the license fee paid by you as reduced to reflect a five year straight-line depreciation from the applicable license purchase date. The foregoing obligations of RoboDK will not apply: (1) if the Software is modified by any party other than RoboDK, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not provided or authorized by RoboDK, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to any unsupported release of the Software; (5) to any third party code or software contained within the Software or operating alongside the Software and with which the Software integrates or interoperates; or (6) if you settle or make any admissions with respect to a claim without RoboDK’s prior written consent. THIS SECTION 9.4 SETS FORTH ROBODK’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.4. Indemnification by You
Subject to this Section 9, you must defend RoboDK from and against all third party claims arising out of your use of the Software and must indemnify and hold RoboDK harmless from and against any damages and costs awarded against RoboDK or agreed in settlement by you (including reasonable attorneys fees) resulting from such claims, provided that you will have received from RoboDK: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from RoboDK. You may not settle any such claim relating to the Software without RoboDK’s prior written consent, which must not be unreasonably withheld, conditioned or delayed.
10. General
10.1. Assignment
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. RoboDK may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of RoboDK’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without RoboDK’s written consent except that you may assign your rights and obligations under this Agreement, in whole but not in part, without RoboDK’s written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (i) the assignee is not a direct competitor of RoboDK; (ii) you provide prompt written notice of such assignment to RoboDK; (iii) the assignee is capable of fully performing your obligations under this Agreement; and (iv) the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
10.2. Severability
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
10.3. Governing Law; Jurisdiction and Venue
Excluding conflict of laws rules, this Agreement will be governed by and construed under the laws of the Province of Québec, Canada. All disputes arising out of or in relation to this Agreement must be submitted to the exclusive jurisdiction of the courts of Montreal (Québec), Canada. Nothing in this section will restrict RoboDK’s right to bring an action (including for example a motion for injunctive relief) against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10.4. Notices
Any notice hereunder must be in writing. If to RoboDK, such notice must be sent to RoboDK at info@robodk.com. If to you, such notice or report will be sent to the address you provided upon placing your order. Notices will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
10.5. Amendments; Waivers
No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
10.6. Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by RoboDK for use of the Software, the terms and conditions of such other agreement will prevail over any conflicting terms or conditions in this Agreement.
10.7. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.8. Audit Rights
Upon RoboDK’s written request, you must certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement and provide a current list of Authorized Computers for desktop-based licenses. With reasonable prior notice, RoboDK may audit your use of the Software, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to the Software in a manner that is not permitted under this Agreement, then RoboDK may terminate this Agreement pursuant to Section 5 and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties RoboDK may be entitled to under this Agreement and applicable law.
10.9. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.