1.1 “Licensed Software” means the software, in executable form only, supplied pursuant to this Agreement. All references to the Licensed Software include associated documentation, including but not limited to the applicable installation guide.
2. GRANT OF LICENSE; SCOPE OF USE; OBLIGATIONS REGARDING YOUR USE
2.1 You are granted a personal, non-transferable, nonexclusive license to use the Licensed Software subject to the authorized number of user licenses that You have ordered and purchased. You may make one (1) copy of the Licensed Software into machine-readable form for backup or archival purposes in support of Your use of the Licensed Software. You may make no other copies except as authorized in writing by CAMBRIO or as provided in Section 2.6, below. You may not reverse engineer, decompile or disassemble, or attempt to discover the source code for, or any trade secrets relating to, the Licensed Software. You acknowledge that the Licensed Software is comprised of the proprietary, trade secret, and confidential information of CAMBRIO and/or its licensors, and You agree to hold the Licensed Software in confidence and protect it from disclosure to third parties. You shall take at least the same precautions to protect the confidentiality of the Licensed Software and such information as You take for Your own confidential and proprietary information of like importance, but in no event less than reasonable care. You agree further not to disclose, provide or otherwise make available the Licensed Software or such information in any form to any person other than Your employees with a need to know. As part of the foregoing obligations, You may not disclose the results of any benchmark testing using the Licensed Software to any third party. No title to the intellectual property is transferred. You must reproduce and include all applicable copyright and other proprietary notices on any copy.
2.2 You further acknowledge and agree that any use of multiplexing or pooling hardware or software, which reduces the number of users directly accessing or using the Licensed Software on a particular server, shall not reduce (or be deemed to reduce) the number of user licenses required to access or use the Licensed Software. Any Licensed Software having a user license component requires a separate user license for each distinct user of the multiplexing or pooling hardware or software front end, whether or not such user access is direct or indirect. This remains true no matter how many tiers of hardware or software exist between the server running the Licensed Software and the client devices that ultimately use its data, services or functionality.
2.3 You may not sublicense, provide access to or use of the Licensed Software, or distribute, rent, loan, lease or sell or otherwise transfer all or any portion of the Licensed Software to others. You shall not install or access, or allow the installation or access of, the Licensed Software over the Internet for the purposes of making the Licensed Software available to third parties, including without limitation, use in connection with web hosting or similar services. You may not modify, translate, adapt, arrange, or create derivative works, compilations or collective works from the Licensed Software (so far as such prohibitions are permitted by law). You may not utilize any equipment, device, software or other means designed to circumvent or remove any form of copy protection used by CAMBRIO or its licensors in connection with the Licensed Software or use the Licensed Software together with any authorization code, serial number or other copy protection device not supplied by CAMBRIO or its licensors. The foregoing notwithstanding, if You are an authorized CAMBRIO reseller or CAMBRIO Original Equipment Manufacturer (“OEM”), You may incorporate the Licensed Software into Your equipment for sale of such equipment to an end user, and You may distribute the Licensed Software to that end user, provided that such end user agrees, in writing, to be bound by the terms and conditions of this Agreement.
2.4 You may transfer the Licensed Software from one computer to another within the same legal jurisdiction, provided that You first notify CAMBRIO in writing of such transfer. For greater clarity and without limiting the other provisions of this Section 2, in the event of such transfer, in no event may You use the Licensed Software in excess of the authorized number of user licenses that You have ordered and purchased.
2.5 The Licensed Software includes third party software code (“Third Party Software”) licensed to CAMBRIO for inclusion in the Licensed Software. Such third party licensors shall have the right to enforce their respective proprietary interests, including the right to terminate this Agreement in the event of a breach of its terms pertaining to such proprietary interests.
This Licensed Software contains Autodesk® RealDWG by Autodesk, Inc., Copyright © 1998-2021 Autodesk, Inc. All rights reserved. You are hereby notified that Autodesk, Inc., 111 McInnis Parkway, San Rafael, California 94903 (“Autodesk”) is a third party beneficiary to this Agreement to the extent that this Agreement contains provisions which relate to Your use of the Licensed Software. Such provisions are made expressly for the benefit of Autodesk and are enforceable by Autodesk in addition to Licensee. In addition, Electronic Data Systems Corporation and Parametric Technology Corporation are third party beneficiaries of this Agreement and may enforce the provisions of this Agreement directly.
Certain Third Party Software contained in the Licensed Software require the following notifications:
2.6 In the event Portable Document Format (“PDF”), example part files, macro files, NC post-processor files, or machine simulation model files for the Licensed Software are provided to You, You may copy and modify them solely for use with Your copy of the Licensed Software. You may not reverse engineer whole or parts of machine solid models, if any, supplied to You for the purpose of creating similar machines or components.
2.7 CAMBRIO and its licensors retain all rights, title and interest in the Licensed Software, including but not limited to PDF files, and in all improvements, enhancements, modifications and derivative works of the Licensed Software including but not limited to all patent, copyright, trade secret and trademark and other intellectual property and proprietary rights. You hereby irrevocably assign to CAMBRIO all rights, title and interest in such improvements, enhancements, modifications and/or derivative works of the Licensed Software.
2.8 CAMBRIO must provide written approval for any attempt to sublicense, assign or transfer the Licensed Software or any of the rights, duties or obligations hereunder. CAMBRIO may, in its sole discretion condition the sublicense, assignment, or transfer of the Licensed Software upon payment of a transfer fee and/or the execution of a maintenance agreement. IF YOU TRANSFER POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF CAMBRIO, CAMBRIO SHALL HAVE THE RIGHT, IN ITS SOLE DISCRETION, TO TERMINATE THE LICENSE.
2.9 You agree that the use of the Licensed Software requires the minimum hardware and software configurations set forth in the associated documentation provided with the Licensed Software, and that Your ability to use the Licensed Software may be impacted by the hardware and software configuration which You use.
2.10 You agree that the Licensed Software may be used solely for business use, and not for personal or household use.
2.11 If You license the Licensed Software for use in, or move the Licensed Software into, Germany, You acknowledge that in Germany the Licensed Software is known as “Virtual Gibbs ®” (and not “GibbsCAM ®”), and no right to any other German trademark is claimed by CAMBRIO hereunder.
2.12 CAMBRIO shall have the right to audit Your compliance with the terms of this Agreement. You will grant CAMBRIO access to Your facilities, equipment, books, records and documents and otherwise reasonably cooperate with CAMBRIO in order to facilitate any such audit.
2.13 All Licensed Software provided to the U.S. Government is provided with the commercial license rights and restrictions described in this Agreement. By installing, copying or using the Licensed Software, the U.S. Government agrees that the Licensed Software is “commercial computer software” or “commercial computer software documentation” within the meaning of FAR Part 12.
Any license to the U.S. Government is subject to restricted rights as stated in the following clauses and any amendments and successors thereto: For the Department of Defense (DOD), DFARS 252.227-7013(c)(1)(ii)(Oct. 1988), Rights in Technical Data and Computer Software, DFARS 252.227-7037 Validation of Restrictive Markings on Technical Data; For the National Aeronautics and Space Administration (NASA), NFARSUP 18-52.227-86 Commercial Computer Software-Licensing and NFARSUP 18-52.227-19 Commercial Computer Software – Restricted Rights; For civilian agencies other than NASA, FAR 52.227-14, Rights in Data – General and FAR 52.227-19 Commercial Computer Software – Restricted Rights. These clauses are incorporated into this Agreement by reference, with the same force and effect as if they were given in full text. Notwithstanding anything herein, in no case, however, will such clause or any interpretation or modification thereof grant any rights in the Licensed Software or data beyond those expressly granted in this Agreement. Manufacturer: Cambrio Acquisition, LLC 1445 Kemper Meadow Drive, Cincinnati OH 45240, contains Third Party Software provided by CAMBRIO’s licensors (see Section 2.5).
3. LIMITED WARRANTY AND WARRANTY DISCLAIMER
3.1 CAMBRIO warrants to the original licensee of the Licensed Software that, when properly installed on computer equipment and in an operating environment meeting or exceeding specifications for such equipment and environment published by CAMBRIO, the Licensed Software will perform substantially in accordance with the associated Documentation for sixty (60) days after delivery of the Licensed Software to You. In the event that the Licensed Software do not so perform, CAMBRIO will, at its expense, use its reasonable endeavors, consistent with industry practice, to correct errors in the Licensed Software or the associated documentation provided therewith which materially affect performance of the Licensed Software, provided that You have documented such errors to CAMBRIO in accordance with CAMBRIO’s error report procedure. CAMBRIO does not warrant that the Licensed Software or the functions contained in the Licensed Software will meet Your requirements.
3.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK. THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. CAMBRIO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. CAMBRIO DOES NOT WARRANT THAT THE USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAMBRIO SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. ACCORDINGLY, THIS DISCLAIMER DOES NOT LIMIT OR EXCLUDE (A) ANY IMPLIED WARRANTIES WHICH ACCORDING TO APPLICABLE LAW MAY NOT BE LIMITED OR EXCLUDED, IN WHICH CASE SUCH IMPLIED WARRANTIES WILL APPLY ONLY TO THE EXTENT SO REQUIRED BY SUCH LAW, OR (B) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY CAMBRIO’s NEGLIGENCE.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL CAMBRIO, OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, LICENSORS, OEMS OR REPRESENTATIVES, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES (WHETHER DIRECTLY OR INDIRECTLY RESULTING FROM CAMBRIO’ BREACH), LOSS OF USE OF LICENSED SOFTWARE OR ANY PART THEREOF, LOSS OF USE OF ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT PRODUCTS, FACILITIES, SERVICES OR SOFTWARE, DOWNTIME COSTS, OR CLAIMS OF YOUR CUSTOMERS OR OTHER THIRD PARTIES FOR SUCH DAMAGES, EVEN IF CAMBRIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN SECTION 5 (INDEMNITY), AND ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY CAMBRIO’s NEGLIGENCE, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL CAMBRIO’s LIABILITY TO YOU FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, WHETHER OR NOT RESULTING IN MONETARY LOSS OR PROPERTY DAMAGE, EXCEED THE LICENSE FEE WHICH YOU PAID FOR THE LICENSED SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4.3 If CAMBRIO furnishes You with advice or other assistance which concerns Licensed Software or any portion thereof or any system or equipment on which any such Licensed Software may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject CAMBRIO to any liability, whether in contract, warranty, tort (including negligence), or otherwise.
4.4 You acknowledge and agree that the Licensed Software is not intended for use, and shall not be used, in the design or fabrication of products or parts thereof for use in any nuclear, chemical or weapons production facility or activity, or in any other activity where failure of the Licensed Software could lead to personal injury, bodily harm (including death), or damage to tangible or real property, or to other physical or environmental damage. If so used, CAMBRIO disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and You shall indemnify, hold harmless and defend CAMBRIO, its officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether CAMBRIO had knowledge of the possibility of such damages. Without derogating from the foregoing, You shall not employ the Licensed Software in the design or manufacture of weapons of mass destruction.
5.1 CAMBRIO will defend at its own expense any rightful claim brought against You that the Licensed Software infringes any United States patent or copyright or violates or misappropriates the trade secret rights of any third party, provided that You notify CAMBRIO promptly in writing and give CAMBRIO information, reasonable assistance and sole authority to defend or settle the claim (“Infringement Claim”), and CAMBRIO will pay the amounts finally awarded against You in any action attributable to an Infringement Claim. In case the Licensed Software in such suit is held to constitute such an infringement and its use is enjoined, or in the event CAMBRIO believes, in good faith, that it is not commercially reasonable to defend against or settle such claim, then CAMBRIO may, at its expense and option, either procure for You the right to continued use, or replace same with a non-infringing product or part, or modify the Licensed Software so that it becomes non-infringing, or accept the return of the affected copy of the Licensed Software and refund the license fee pertaining thereto (less reasonable depreciation for any period of use based upon a five-year useful life). The foregoing states the entire liability of CAMBRIO for intellectual property infringement by the Licensed Software or any part thereof.
5.2 The indemnity under the preceding paragraph shall not apply to any (a) use of Licensed Software in conjunction with any other equipment, device, firmware or software in a combination not furnished by CAMBRIO as a part of this transaction; (b) modification of the Software by You; (c) unauthorized use of the Software; (d) Your failure to install or have installed changes, revisions or updates as instructed by CAMBRIO; or (e) compliance by CAMBRIO with Your specifications, designs or instructions. As to any claims, suits or proceedings resulting from any of the foregoing, CAMBRIO assumes no liability whatsoever, and You will hold CAMBRIO harmless against any infringement claims arising therefrom.
6. TERM AND TERMINATION
6.1 You may terminate the license granted hereunder at any time by destroying the Licensed Software together with all copies thereof and providing written notice to CAMBRIO (or to the CAMBRIO distributor or OEM from which You obtained the Licensed Software) that all use of the Licensed Software has ceased and that same has been destroyed, identifying the particular copy of the Licensed Software licensed to You by the product code You were provided upon activation of the Licensed Software and the date You obtained the license.
6.2 CAMBRIO, upon thirty (30) days notice, may terminate this Agreement or any license hereunder if You fail to perform any obligation or undertaking to be performed by You under this Agreement or if You attempt to assign this Agreement without the prior written consent of CAMBRIO. Within twenty (20) days after any such termination of this Agreement, You shall certify in writing to CAMBRIO that all use of the Licensed Software has ceased, and that same has been returned or destroyed, in accordance with CAMBRIO’s instructions.
6.3 Sections 4, 6, 7 and 8 of this Agreement shall survive any expiration or termination and remain in effect. Except as otherwise expressly provided in Section 5, termination of this Agreement or any license hereunder shall not relieve You of Your obligation to pay any and all outstanding charges hereunder or entitle You to any refund of such charges previously paid.
You may not use or export the Licensed Software outside of the country in which You purchased the Licensed Software for any reason. Without derogation from the foregoing, You acknowledge that the Licensed Software contains software and technical data which are subject to U.S. and United Kingdom laws, orders or other restrictions regarding export of software, technical data or products of such software or technical data and You agree, without derogation from the other provisions of this Section 7, that You shall not directly or indirectly import, export or re-export the Licensed Software or permit transshipment thereof (a) to any country or destination for which the U.S. or United Kingdom requires an export license or other approval for export without first having obtained such license and the written approval of CAMBRIO and its licensors and any other required approval or (b) otherwise contrary to U.S. or United Kingdom Law. In the event that U.S. and United Kingdom laws are in conflict, the more restrictive law shall prevail. If You intend to export (or re-export), directly or indirectly, the Licensed Software or technical information relating thereto, or any portion thereof, it is Your responsibility to assure compliance with U.S. and any other applicable export and import control regulations of all countries involved and, if appropriate, to secure any required export and import licenses in Your own name and at Your own expense.
8.1 This Agreement shall be governed by the laws of the State of Delaware, United States of America. Jurisdiction and venue shall lie exclusively in the courts located in the State of Delaware, United States of America, unless and to the extent CAMBRIO reasonably determines that jurisdiction in a different forum is necessary to protect its intellectual property rights and/or fulfill its indemnification obligations to You.
8.2 The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
8.3 lf You license the Licensed Software for use in, or move the Licensed Software into, one of the countries or provinces listed below, the following additional terms and conditions apply:
A. Australia: The following is added to Section 4: “The warranties specified in this Section are in addition to any rights You may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation.”
B. Germany: The following is added to Section 4: “The minimum warranty period for Programs is six (6) months.”
C. lreland: The following is added to Section 4: “Except as expressly provided in these terms and conditions, all statutory conditions, including all warranties implied, but without prejudice to the generality of the foregoing, all warranties implied by the Sale of Goods Act 1893 or the Sale of Goods and Supply Services Act 1980 are hereby excluded.”
D. France or Quebec, Canada: The following is added: “Une version française de cette Licence vous sera fournie afin d’être examiné, selon votre demande. Vous reconnaissez avoir eu l’opportunite d’obtenir une telle version française et d’avoir décidé, en lieu et place, que cet accord pourrait être en anglais.”
8.4 This License constitutes the complete agreement between You and CAMBRIO with respect to the copy of the Licensed Software to which this License applies, and supersedes any prior discussions or agreements relating to such copy of the Licensed Software. This License may be modified only by the written agreement of both parties.
8.5 If for any reason any provision of this Agreement shall be deemed by a court of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced.
8.6 All notices shall be in writing and given by personal delivery, overnight carrier, or certified mail and, in all cases, with proof of delivery.