Dassault Systèmes Clickable 3DVIA Studio Online Agreement
This Clickable 3DVIA Studio Online Agreement (“Agrement”) is made by and between You and Dassault Systèmes SA, 10 rue Marcel Dassault 78140 Velizy- Villacoublay France (“DS”).
By installing and using 3DVIA Studio Online, You represent (i) to have accepted all terms and conditions set out in this Agreement, (ii) to have consented to enter into this Agreement in electronic form and (iii) to agree that downloading 3DVIA Studio Online constitutes Your electronic signature of and consent to this Agreement.
3DVIA Studio Online means the software program available for download that is owned by or licensed to DS or its Subsidiaries, developed and distributed by and/or for DS or its Subsidiaries to allow the development of Apps for lifelike experience.
App(s) means the stand alone software application program developed by You on the 3DVIA Studio Online software.
DS Group means DS and its Subsidiaries.
DS Group Product(s) means any computer software product authored or developed by or for, or licensed to any company of the DS Group, whether current or future and whatever the trademarks they are sold under.
Object Code means computer programming code, substantially or entirely in binary form, which is directly executable by a computer after suitable processing, but without the intervening steps of assembly, compilation or link edit.
Release means a periodic update of the same version of 3DVIA Studio Online if and when made generally available to the market.
Source Code means computer programming code and related documentation, comments and procedural code, which is not directly executable by a computer and may be printed out or displayed in a form readable and understandable by a qualified programmer.
Specific Terms for Third-Party Software means the specific terms and conditions applicable to certain third-party software components or third-party software products not developed by or for a DS Group and licensed to You to be used in connection with or within 3DVIA Studio Online, published on DS’s website, http://www.3ds.com/terms/third-party-terms, as modified from time to time.
Supported Release means release of any DS Group Product which is maintained by DS in accordance with its current support life cycle policy.
Subsidiary(s) means any company that, directly or indirectly, (i) owns more than 50 percent of the outstanding equity or ownership interest, or (ii) has the power to designate the managing authority.
Training Material(s) means DS Group training materials including without limitation, 3DVIA project files, Source Code, 3D models, textures, shaders, smart objects or other 3D art content, tutorials, narrated videos, games, webinars, or training documentation, made available by DS, for free or for purchase via a monthly subscription fee on the DS Website or third-party Website.
2. GRANT OF RIGHT AND LICENSE BY DS
Subject to the terms and conditions of this Agreement, DS grants You, from the date on which 3DVIA Studio Online is downloaded by You until December 31, 2012, a non-exclusive, free-of-charge, worldwide, temporary, non-transferable license to use 3DVIA Studio Online, exclusively for Your internal use, for development, test, evaluation and support of an App.
Except as otherwise authorized herein, You may only reproduce 3DVIA Studio Online, in Object Code form, to the extent necessary for a single back-up copy. You shall not use automated programs or user agents programs or utilities to be used on behalf of multiple users to circumvent the purchase and/or download.
All licenses pursuant hereto are granted exclusively for the above purposes and exclusively in relation with the App.
All rights not specifically granted in this Agreement are reserved by DS.
3DVIA Studio Online may contain third-party software components to which certain Specific Terms for Third-Party Software apply. The current Specific Terms for Third-Party Software may be found at http://www.3ds.com/terms/third-party-terms. You warrant that You have full knowledge of such Specific Terms for Third-Party Software, and agree to be bound by and comply with such terms.
You are not authorized to sublicense, assign or otherwise transfer the licenses granted under this Agreement to any third-party whatsoever, except as expressly provided herein.
You agree that You shall not copy or use the part of the CD or media containing the DS Group Product(s) for which You do not benefit from any license under this Agreement. Such restriction shall also apply to data generated by using such part of the CDs or other media for which You do not benefit from any licenses under this Agreement.
You agree not to decompile, reverse engineer and/or disassemble all or part of 3DVIA Studio Online into a Source Code version thereof, or allow others to do so. If in DS’s opinion, You have reverse engineered any part of 3DVIA Studio Online, You agree that this shall constitute an immediate and material breach of the Agreement. Except as otherwise expressly agreed between the parties, You agree not to remove or circumvent any licensing system or protection system of 3DVIA Studio Online, unless expressly authorized in writing by DS.
2.3 RIGHTS ON DS’S LOGOS, LABELS AND MENTIONS
DS’s logos, labels or mentions shall be reproduced visibly and clearly on the App. For this purpose, DS grants You a non-exclusive, non-transferable, worldwide and free of charge license for the duration of this Agreement to use, reproduce, distribute and display the relevant DS’s logos, labels or mentions, so long as it complies with the graphic chart and layouts of DS. You are not authorized to modify DS logos or delete any statements concerning copyrights. DS shall retain the right to review the content, use and quality of any media which include a DS logo, label or mention, and shall reserve the right to require You to take all reasonable steps necessary to resolve any issues or objections related thereto.
3. OTHER RIGHTS AND OBLIGATIONS
3.1 DEVELOPMENT RULES
You shall be solely responsible for initiating development of the App and choosing the programming techniques to be used for developing the App on the 3DVIA Studio Online software.
You undertake not to:
(a) use and/or license the App as a software component (i.e., to be used as a toolkit by and/or embedded into another software application product or software middleware product); and/or
(b) use, adapt or modify in any manner, or have used, adapted or modified in any manner all or part of the App, or prepare or have prepared derivatives works based upon said App, or use or have used in any manner the know how and/or trade secrets related to the DS Group Products and/or 3DVIA Studio Online, in all cases, in order to make or have made or participate to make:
(i) an interface or integration between any DS Group Product(s) and any product(s) of any third-party without the App being a prerequisite thereto, and/or
(ii) a software product or middleware product that allows or facilitates such an interface and/or integration without the App being a prerequisite thereto, and/or
(iii) a product or any other access enabling the user of any CAD/CAM/CAE (Computer Aided Design / Computer Aided Manufacture / Computer Aided Engineering), PDM (Product Data Management), PLM (Product Lifecycle Management), Digital Manufacturing, Data Modeling or Network Computing software product(s) to read, understand, and/or use any data or model generated by any DS Group Product(s) without the App being a prerequisite thereto; and/or
(c) co-develop the App with another company, enter into an agreement with a company in order to share the ownership (co-ownership) of the App; and/or
(d) grant any license of the App to any independent software vendor(s); and/or
(e) provide any services around or in relation to the DS Group Product(s) and/or using the DS Group Product(s) licenses granted herein (to provide such services, You shall enter into a separate agreement with DS); and/or
(f) insert in the App any disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable content.
This Agreement does not grant You any right for DS support services related to 3DVIA Studio Online.
3.3 MARKETING OF THE APP
Subject to the subscription to DS service for the distribution of Your App on the Web and the payment of the related subscription fees (if applicable and pursuant to the payment obligations stipulated in the subscription form you have accepted), You will benefit from the possibility to upload Your App on the DS website: www.3dvia.com.
You undertake to distribute the App exclusively on the DS Website www.3dvia.com by uploading the App for a free of charge and accessible by any visitor of this Website.
When uploading the App for a free-of-charge access by any visitor of the DS Website www.3dvia.com, You shall be prompted to specify the nature and scope of the rights You wish to retain, license or sublicense with respect to the App, given (i) You accept to grant, at a minimum, to users of the DS Website the right to access to and view the App through the DS website for their personal use only, explicitly excluding any commercial use of the App and (ii) You don’t allow any modification or adaptation of the App nor any removal of the proprietary notices.
You shall make no representations or warranties on behalf of DS and/or the DS Group. You shall defend and hold DS Group harmless from and against any and all claims, actions or else from any user of the App through the DS Website.
4. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
4.1 TITLE TO APP AND ASSOCIATED WRITTEN MATERIALS.
Subject always to DS’s rights and title as stipulated in this section and to article 3.3 herein, all ownership and title in App and associated written materials, including, without limitation, reports, programs, manuals, listings and any other documentation, whether in Object Code or not, authored or developed by You under this Agreement, shall rest exclusively with You, You having the right to obtain and hold in Your own name copyright, patent registrations of inventions or discoveries, or such other protection as may be available, and any extension thereof, on the App, to the exclusion of any DS software program embedded in the App.
Any transfer by 3DVIA SG Community Member of all or part of the ownership of the App to any third party shall require, and be subject to, DS’s prior written consent. Failing DS prior written consent, such a transfer shall be considered a material breach of this Agreement. Therefore, in such case, this Agreement will be immediately terminated.
4.2 TITLE TO 3DVIA STUDIO ONLINE AND ASSOCIATED WRITTEN MATERIALS.
3DVIA Studio Online and associated written materials, including, without limitation, reports, programs, manuals, listings and any other documentation, whether in Object Code or not, are and will remain the exclusive property of DS or its licensors. All copyrights, patents or other intellectual property rights applicable thereto, as well as to derivative works and/or to other materials, products or services supplied by DS to You under this Agreement, shall rest exclusively with DS or its licensors, DS or its licensors having the exclusive right to obtain and hold in their own name copyright, patent registrations of inventions or discoveries, or such other protection or intellectual property right as may be available, and any extension thereof.
You shall preserve and reproduce any copyright, patent and/or trademark notices which may appear in 3DVIA Studio Online, and associated documentation and on all copies thereof, whether in whole or part.
You recognize that the methodologies, techniques, expressions, ideas and concepts contained in or expressed within 3DVIA Studio Online and associated documentation are proprietary information or trade secrets of DS or other owner. You shall treat them as confidential information and not disclose them as long as this Agreement is in effect and for three (3) years thereafter.
5. DISCLAIMER OF WARRANTY AND OF LIABILITY
3DVIA STUDIO ONLINE IS MADE AVAILABLE ON AN “AS IS” BASIS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS, AND TERMS ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL DS BE LIABLE FOR DIRECT OR INDIRECT, ARISING OUT OF THIS AGREEMENT OR THE SUPPLYING OF 3DVIA STUDIO ONLINE.
6. RELATIONSHIP BETWEEN THE PARTIES
The relationship between You and DS shall be that of independent contractors, each party acting as a principal for its own account and at its own expense and risk.
Nothing contained in this Agreement makes either party a general or special agent, joint venturer, corporate partner or any similar relationship between You and DS for any purpose whatsoever. Each party undertakes not to act or represent itself, directly or by implication, to be an agent of the other party.
Neither party is granted any right or authority to assume or create any obligation or liability, expressed or implied, on behalf of, or in the name of, the other party or to bind the other party in any way or for any purpose whatsoever.
Subject to its execution by both parties, this Agreement shall come into force from the date on which 3DVIA Studio Online is downloaded by You until December 31, 2012, unless terminated earlier as provided hereunder.
Either party may terminate this Agreement under this section, if the other party is in breach of any of its obligations and has failed to remedy such breach within one (1) month of receipt of written notice sent by the other party, in the following instances:
- in case of material breach by either party. For purposes of this section, a material breach will be deemed a breach of Sections 2 and 3, as well as any other serious breach impeding or altering the cooperation between the parties under this Agreement; and/or
- in case of any unauthorized assignment of the Agreement under Section “Miscellenaous” below.
The Agreement will terminate, as of right and without legal proceedings, upon expiration of a one (1) month period as of receipt by the party in breach of the termination notice sent by the party victim of the breach.
9. CONSEQUENCES OF TERMINATION
In case of termination of this Agreement, at the termination date, You (i) shall cease the distribution of the App, (ii) immediately destroy or return all copies, in whole or in part, of 3DVIA Studio Online and associated documentation, and duly certify the same in writing to DS, and (iii) acknowledge that DS will withdraw the App from the Website http://www.3dvia.com.
All licenses on the App, validly granted to users of 3dvia.com during the term of the Agreement shall survive for the term provided in the applicable license agreement.
10. EXPORT AND RE-EXPORT LAWS AND REGULATIONS
Export to You of 3DVIA Studio Online is subject to all applicable countries’ export and re-export laws and regulations. You shall provide DS with all necessary assistance for any application for such authorizations, licenses and other approvals, or other documentation related to the export or re-export of 3DVIA Studio Online. DS shall have no liability whatsoever toward You if such authorizations, licenses or approvals are not obtained. You shall not export or re-export, either directly or indirectly, 3DVIA Studio Online when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. You hereby certify to DS that 3DVIA Studio Online downloaded hereunder will not be used in any nuclear, chemical, biological, weapons or missile delivery systems and will not be diverted to any country, company or individual that is prohibited by the applicable export laws of any country.
All notices required hereunder shall be communicated in English or in French and shall be personally delivered or sent by certified or registered mail or reputable express courier service, addressed to the parties at their addresses first mentioned above, or at such other address as either party may designate to the other by notice served as hereby required, or contained in the relevant order form, or sent by facsimile transmission to the facsimile machine telephone number provided by the receiving party.
11.2 FORCE MAJEURE
Neither party hereto shall be liable for any default in the performance of its obligations under this Agreement resulting from (i) a case of force majeure as defined by French law and construed by French courts and (ii) the following causes: strikes (whether previously announced or not), war (declared or not), riots, governmental action, acts of terrorism, acts of God (fire, flood, earthquake, etc.).
In the event any part of this Agreement is found to be invalid, illegal or unenforceable in any respect, the remaining provisions shall nevertheless be binding with the same effect as if the invalid, illegal or unenforceable part was originally deleted.
11.4 TRANSFER, ASSIGNMENT & SUBCONTRACT
You shall not subcontract, assign, delegate or otherwise transfer any or all of its rights, duties, benefits or obligations under this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of DS and its successors and assigns. DS shall be free to assign, delegate or otherwise transfer (including without limitation, by way of merger or contribution), any of its rights or obligations hereunder and/or otherwise subcontract any of its obligations hereunder, in whole or in part, to any Affiliate or third party, without Your consent.
11.5 AMENDMENTS & NON-WAIVER.
No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing by all parties. Notwithstanding the foregoing, DS may add, modify or cancel any provision of this Agreement to the extent required by DS’s agreements with its licensors by written notice to You at any time. Such additions, modifications and cancellations shall not require Your separate consent and shall be effective immediately upon receipt of such notice. A party’s failure at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce such provision.
11.6 ENTIRE AGREEMENT
This Agreement, including the subscription form to DS service for the distribution of Your App on the Web duly accepted by You, and other exhibits, amendments or supplements thereto, is the complete agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written. You acknowledge that You have not relied on the future availability of functionality or product updates with respect to 3DVIA Studio Online in entering into this Agreement. The terms of this Agreement shall have no force or effect with respect to any claim based on the use of any intellectual property rights of DS outside the scope of the licenses expressly granted herein. Except as expressly permitted herein, this Agreement may be modified only by written amendment signed by the parties and no other act, document, usage or custom shall be deemed to amend or modify this Agreement, including but not limited to Your terms and conditions.
11.7 GOVERNING LAW AND JURISDICTION
The Agreement shall be governed and construed in accordance with the laws of France.
(a) The Commercial Court of Paris (“Tribunal de Commerce de Paris”) shall have exclusive jurisdiction to hear any dispute arising out of or in connection with the interpretation and/or performance of this Agreement, however, the parties acknowledge and agree that in the event that the subject matter of any such dispute is Intellectual Property, DS shall have the right to bring any such dispute before the French Civil Court having jurisdiction pursuant to the French Code of Civil Procedure (“Code de Procédure Civile”).
(b) You acknowledge and agree that the paragraph immediately above shall not prevent, restrict or otherwise limit in any manner, DS rights to seek equitable remedies, including injunctive relief before any competent court in any jurisdiction.
DS and/or any of its Subsidiaries may develop, have developed or enter into agreements with any third party for the development, of any application software programs that have the same functionalities, purpose, domain or target, or that are or may be deemed similar, or that compete directly or indirectly, with App to be developed by You under this Agreement, provided however that DS shall not disclose to third parties confidential information provided by You.
The parties agree that the following sections shall survive the termination of this Agreement for any reason whatsoever: Section 2 – Grant of right and license by DS, Section 3.1 DS development rules, Section 4– Intellectual property rights and confidentiality, Section 5– Warranties, Limitations and Disclaimer of Warranties, Section 9 – Consequences of Termination, Section 10- Export and re-export laws and regulations and Section 11 – Miscellaneous.