DraftSight End User License Agreement

 

DRAFTSIGHT® End User License Agreement

This End User License Agreement ("Agreement") for DraftSight software and DraftSight-related programs and add-ins as referenced below ("Licensed Programs"), is made by and between Dassault Systemes SolidWorks Corporation, located at 175 Wyman Street, Waltham, Massachusetts 02451, USA ("DS SolidWorks"), and you ("Licensee"). Licensee should carefully read the terms and conditions of this Agreement BEFORE downloading and installing the Licensed Program(s). By clicking to accept or by its electronic signature, Licensee agrees to be bound by such terms and conditions. This is a license agreement and not an agreement for sale.

1. LICENSE

DS SolidWorks hereby grants to Licensee a non-transferable and non-exclusive license, for the duration identified below, to use the Licensed Program(s) and any associated Support Services solely in accordance with this Agreement. For purposes of this Agreement, "Support Services" means the maintenance, enhancement and other support services referred to herein and described at www.3ds.com/terms/support-policies. The Licensed Program(s) may be installed, executed, and accessed only by Licensee on hardware belonging to it ("Machines") and by Licensee's employees, students, consultants, and subcontractors who access the Licensed Program(s) on the Machines, and may not be executed or accessed by any other means, including, without limitation, via a network unless Licensee has been granted a network license pursuant to the terms and conditions of this Agreement. Licensee may make the necessary number of copies of the applicable Licensed Program(s) for installation and one copy for back-up of each Licensed Program in support of Licensee's authorized use pursuant to this Agreement. No rights, including any right to use, reproduce or display, other than those specifically described in this Agreement, are granted to Licensee. Licensee may not modify or make works derivative of the Licensed Programs(s) or make compilations or collective works that include the Licensed Programs(s). Except to the extent permitted by applicable law, Licensee shall not analyze for purposes competitive to DS SolidWorks or its affiliates, reverse-engineer, decompile, disassemble, or otherwise translate all or part of the Licensed Program(s). If Licensee wishes to achieve or maintain interoperability between the Licensed Program(s) and other computer software or equipment in accordance with this Agreement and applicable law, Licensee first must receive from DS SolidWorks a license to use standard interfaces, exclusively for internal use by Licensee or its authorized users to achieve interoperability (unless external use with one or more third parties is expressly authorized by DS SolidWorks under a separate agreement with Licensee), at DS SolidWorks' then-current prices and contractual conditions. If standard interfaces are not available, DS may elect to provide Licensee with the necessary information to permit interoperability and charge Licensee a reasonable fee therefore.

2. DESCRIPTION OF LICENSED PROGRAMS

A. Content of the Prosumer Service Offering for DraftSight. Subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with the single-user Prosumer Service Offering for DraftSight consisting of Support Services in the form of answer to questions concerning the installation, activation and use of DraftSight. Upon termination or expiration of this Agreement, Licensee shall no longer be entitled to receive Support Services. In such event, however, Licensee may continue to use the no-charge support provided via the DraftSight community, if such support is available.

B. Content of DraftSight Enterprise. Subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with DraftSight Enterprise, consisting of:

a) Support Services in the form of answers to questions concerning the installation, activation and use of DraftSight. A maximum of ten (10) of Licensee's designated users in each Major Geography (defined as the Americas, Japan, Asia Pacific or Europe/Middle East/Africa) may contact DS for support, provided Licensee identifies such user to DS SolidWorks in advance.

Upon termination or expiration of this Agreement, Licensee shall no longer be entitled to receive Support Services. In such event, however, Licensee may continue to use the no-charge support provided via the DraftSight community, if such support available; and

b) a grant of the following rights under the following conditions:

  • the right to use the license server (the "License Server") delivered with DraftSight Enterprise, but only i) to provide infrastructure for network license management of DraftSight during the term of this Agreement, and ii) to utilize the API libraries as set forth below in this Section 2.B.b);
  • the right to administer DraftSight with the License Server for the number of concurrent users for which Licensee is authorized;
  • the right to activate DraftSight using the License Server. The License Server will allow concurrent usage by Licensee's users up to the authorized number of concurrent users for DraftSight Enterprise. DraftSight licenses activated using the License Server must be used solely in the Major Geography for which they have been acquired and for which Licensee has paid the corresponding geography-specific charge;
  • the right to use, with any and all DraftSight releases installed during the term of this Agreement, the API libraries ("API"), Draw Compare tool, Toolbox, Design Library add-in products for DraftSight, and other add-in tools for DraftSight that may be available from time to time from DS SolidWorks (collectively "Add-ins"). Licensee may need to request periodically a new License Server license key to continue usage of the API and Add-ins, including upon non-renewal of the maintenance upgrade of the DraftSight Enterprise Non-Subscription offering. Add-ins may not be compatible with versions of DraftSight that predate the release(s) of such Add-ins. Use of the API and Add-ins is limited to the version of the API and Add-ins enabled by the License Server license key; and
  • the right to receive upgrades for the API, Add-ins and other DraftSight tools that may be available from time to time with DraftSight Enterprise during its license term.

 

C. Content of the DraftSight Enterprise Plus. Subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with one or more licenses of DraftSight Enterprise Plus, consisting of:

a) Support Services in the form of answers to questions concerning the installation, activation and use of DraftSight. A maximum of ten (10) of Licensee's designated users in each Major Geography may contact DS for support, provided Licensee identifies such user to DS SolidWorks in advance.

Upon termination or expiration of this Agreement, Licensee shall no longer be entitled to receive Support Services. In such event, however, Licensee may continue to use the no-charge support provided via the DraftSight community, if such is available;

b) a grant of the following rights under the following conditions:

  • the right to use the License Server delivered with DraftSight Enterprise Plus, but only i) to provide infrastructure for network license management of DraftSight during the term of this Agreement, and ii) to utilize the API libraries as set forth below in this Section 2.C.b);
  • the right to administer DraftSight with the License Server for the number of concurrent users for which Licensee is authorized;
  • the right to activate DraftSight using the License Server. The License Server will allow concurrent usage by Licensee's users up to the authorized number of concurrent users for DraftSight Enterprise Plus. DraftSight licenses activated using the License Server must be used solely in the Major Geography for which they have been acquired (and for which Licensee has paid the corresponding geography-specific charge);
  • the right to use, with any and all DraftSight releases installed during the term of this Agreement, the API and Add-Ins. Licensee may need to request periodically a new License Server license key to continue usage of the API and Add-ins, including upon non-renewal of the maintenance upgrade for the DraftSight Enterprise Plus Non-Subscription offering. Add-ins may not be compatible with versions of DraftSight that predate the release(s) of such Add-ins. Use of the API and Add-ins is limited to the version of the API and Add-ins enabled by the License Server license key;
  • the right to use additional full 3D tools and Constraints capabilities; and
  • the right to receive upgrades for the API, Add-ins, 3D tools, Constraints capabilities and other DraftSight tools that may be available from time to time with DraftSight Enterprise Plus during its license term.

 

D. Content of DraftSight Standard. Provided Licensee is actively enrolled in Subscription Service, and subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with one or more licenses of DraftSight Standard, consisting of:

  • the right to use basic drawing capabilities, tools and features;
  • the right to receive upgrades for such capabilities, tools and features that may be available from time to time with DraftSight Standard;
  • the right to activate DraftSight using an on-line activation process delivered with DraftSight Standard during its license term;
  • the right to use DraftSight Standard on only one computer at a time; and
  • the right to receive technical support (via e-mail - online only) for installation and activation issues.

 

E. Content of DraftSight Professional. Provided Licensee is actively enrolled in Subscription Service, and subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with one or more licenses of DraftSight Professional consisting of:

  • a license for the API and Add-ins, for use with DraftSight Releases installed during the term of this Agreement. Add-ins may not be compatible with versions of DraftSight that predate the release(s) of such Add-ins. Use of the API and Add-ins is limited to the version of the API and Add-ins enabled by the activation process;
  • the right to receive upgrades for the API, Add-ins and other DraftSight tools that may be available from time to time with DraftSight Professional;
  • the right to activate DraftSight software using an on-line activation process delivered with DraftSight Professional during its license term;
  • the right to use DraftSight Professional on only one computer at a time; and
  • the right to receive technical support (via e-mail online only) for installation and activation issues.

 

F. Content of DraftSight Premium. Provided Licensee is actively enrolled in Subscription Service, and subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with one or more licenses of DraftSight Premium, consisting of:

  • a license for the API and Add-Ins, for use with DraftSight releases installed during the term of this Agreement. Add-ins may not be compatible with versions of DraftSight that predate the release(s) of the Add-ins. Use of the API and Add-ins is limited to the version of the API and Add-ins enabled by the activation process;
  • the right to use additional full 3D tools and Constraints capabilities;
  • the right to receive upgrades for the API, the Add-Ins, 3D tools, Constraints capabilities, and other DraftSight tools that may be available from time to time with the DraftSight Premium;
  • the right to activate DraftSight using an on-line activation process delivered with DraftSight Premium during its license term;
  • the right to use DraftSight Premium on only one computer at a time; and
  • the right to receive technical support (via e-mail online only) for installation and activation issues.

 

G. Content of the DraftSight Enterprise Plus for Education. Subject to payment by Licensee of applicable charges, DS SolidWorks shall provide Licensee with one or more licenses of DraftSight Enterprise Plus for Education, pursuant to the conditions defined in Section 2.C. above and for the maximum number of concurrent users defined for DraftSight Enterprise Plus for Education. The following terms and conditions also shall apply to DraftSight Enterprise Plus for Education:

  • the use of DraftSight Enterprise Plus for Education shall be restricted to educational, institutional, instructional, and/or academic purposes, and shall exclude use by students and researchers for any direct or indirect industrial, commercial and/or business purpose(s);
  • a maximum of two (2) of Licensee's designated users in the case of DraftSight Enterprise Plus for Education – Classroom Pack (identified in advance to DS SolidWorks) may contact DS SolidWorks for support; and
  • a maximum of eight (8) of Licensee's designated users of DraftSight Enterprise Plus for Education – Campus Pack (identified in advance to DS SolidWorks) may contact DS SolidWorks for support.

 

3. TERM & TERMINATION

A. Term. This Agreement shall come into full force and effect on the Effective Date, which shall mean the date of Licensee's (i) acceptance of these terms and conditions, where acceptance is indicated via a user interface presenting this Agreement, (ii) downloading and/or installing the Licensed Program(s), or (iii) acceptance of another agreement that incorporates this Agreement by reference. The initial term of this Agreement shall extend for a period of twelve (12) months after the Effective Date; thereafter, this Agreement shall remain in full force and effect until the termination or expiration of all Licensed Programs and licenses granted under it, unless terminated as provided hereunder.

Any Licensed Program ordered under an annual pricing structure shall automatically renew upon the anniversary date of such Licensed Program.

The applicable price for any renewed Licensed Program(s) is the price applicable to the previous period plus the last percentage of increase applicable to such Licensed Program(s) in a given country, as published at http://www.3ds.com/terms/price, at least ninety (90) days before the renewal date.

B. Termination. This Agreement may be terminated at any time by DS SolidWorks for any breach hereof upon notice to Licensee. Periodic activation may be required by Licensee to continue use of the Licensed Program(s). Use of the Licensed Program(s) may be interrupted until necessary activation steps are taken by Licensee. Upon termination hereof, Licensee shall immediately uninstall and delete all copies of the Licensed Program(s) and discontinue use of the Licensed Program(s). Sections 3, 4, 5, 6, 7, 8, 9, and 10 of this Agreement shall survive termination hereof.

4. INTELLECTUAL PROPERTY

The Licensed Program(s), including any copies made by or for Licensee, in whole or in part, are the sole property of DS SolidWorks and/or its licensor(s). All intellectual property rights in the Licensed Program(s) belong exclusively to DS SolidWorks or its licensor(s). DS SolidWorks and/or its licensors shall retain all title, copyright and other intellectual property rights in the Licensed Program(s) and all modifications, enhancements or other works derivative of the Licensed Program(s).

Licensee shall preserve and reproduce any copyright, patent and trademark notices that may appear in the Licensed Program(s) on all copies thereof, in whole or part. Licensee shall keep full, true and accurate records of all copies of the Licensed Program(s), which records shall be available for audit by DS SolidWorks.

Licensee recognizes that methodologies, techniques, expressions, ideas and concepts contained in or expressed within the Licensed Program(s) are proprietary information and may be trade secrets of DS SolidWorks or its licensor(s).

5. LICENSEE'S OBLIGATIONS

Licensee is solely responsible for supervising, managing and controlling the use of the Licensed Program(s) in compliance with this Agreement, and shall take all appropriate measures to ensure such compliance by itself and any users of the Licensed Program(s), including, without limitation, compliance with its authorized use and confidentiality obligations. Licensee hereby certifies and warrants to DS SolidWorks that all Licensed Programs ordered hereunder shall not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical, or biological weapons or missile delivery systems, and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. All rights to use the Licensed Program(s) are granted on condition that such rights are forfeited for failure to comply with the terms of this Agreement. Export to Licensee of Licensed Program(s) is subject to all applicable countries' export and re-export laws and regulations. DS SolidWorks shall have no liability whatsoever toward Licensee if such authorizations, licenses or approvals are not obtained. Licensee shall not export or re-export any Licensed Program(s), either directly or indirectly and when such export or re-export requires an export license or other governmental approval, without first obtaining such license or approval.

6. WARRANTY AND DISCLAIMER OF WARRANTY, RISK OF USE, LIMITATION OF LIABILITY AND INDEMNITY

THE LICENSED PROGRAM(S) ARE MADE AVAILABLE ON AN "AS IS" BASIS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS, AND TERMS ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW.

Each party is independently and exclusively responsible for obligations undertaken by it under this Agreement. No party can be held jointly and severally liable with another pursuant to this Agreement. No party shall be deemed an agent of another party pursuant to this Agreement.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DS SOLIDWORKS' POTENTIAL LIABILITY TO LICENSEE, FOR ANY AND ALL CLAIMS IN ANYWAY ARISING FROM OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, OR OTHER THEORY OF LIABILITY, IS LIMITED AS FOLLOWS:

DS SOLIDWORKS' AGGREGATE LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT CORRESPONDING TO FEES ACTUALLY PAID BY LICENSEE IN RELATION TO THE PRECEDING TWELVE (12)-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM FOR THE USE OF THE SERVICE(S) OR LICENSE(S) THAT CAUSED THE DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE EXPRESSLY AND IRREVOCABLY WAIVES, AND DS SOLIDWORKS SHALL HAVE NO LIABILITY IN RESPECT OF, ANY AND ALL CLAIMS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION AND LOSS OF DATA, THAT IN ANY WAY RELATE TO THIS AGREEMENT, SERVICE(S) OR LICENSES, WHETHER OR NOT DS SOLIDWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

LICENSEE WAIVES ANY AND ALL CLAIMS FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR ANY REASON AND ON ANY BASIS, AGAINST ANY DS SOLIDWORKS PROVIDERS OR SUBCONTRACTORS OR ANY DS GROUP COMPANY OTHER THAN DS SOLIDWORKS. FOR PURPOSES OF THIS AGREEMENT, "DS GROUP COMPANY" MEANS DASSAULT SYSTÈMES, A FRENCH "SOCIÉTÉ EUROPÉENNE," OR ANY ENTITY IN WHICH DASSAULT SYSTÈMES, DIRECTLY OR INDIRECTLY, (i) OWNS MORE THAN 50% OF THE OUTSTANDING EQUITY OR OWNERSHIP INTEREST, OR (ii) HAS THE POWER TO DESIGNATE THE MANAGING AUTHORITY.

All legal actions against DS SolidWorks must be filed with the appropriate judicial jurisdiction within two (2) years after the cause of action has arisen.

The Licensed Programs are tools intended for use by trained professionals and to educate and train students only, and are not substitutes for professional judgment or independent testing of physical prototypes for product stress, safety and utility. Licensee and its users are solely responsible for any results obtained from using the Licensed Programs.

7. GOVERNING LAW AND JURISDICTION

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 Licensee's terms and conditions. This Agreement shall be governed, construed, and enforced in accordance with the substantive laws of the Commonwealth of Massachusetts, without regard to its conflicts-of-law principles or to the United Nations Convention on Contracts for the International Sale of Goods, and will be deemed a contract under seal. The English-language version of this Agreement shall be the authorized text for all purposes, despite translations or interpretations of this Agreement into other languages. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible and the remainder of this Agreement shall remain in full force and effect. Licensee acknowledges and agrees that the terms in this Section 7 shall not prevent, restrict or otherwise limit in any manner DS SolidWorks' rights to seek equitable remedies, including injunctive relief, before any competent court in any jurisdiction.

8. U.S. GOVERNMENT RESTRICTED RIGHTS

The Licensed Program(s) and related Documentation, and any other technical data provided hereunder, are commercial in nature and developed solely at private expense. The Licensed Programs are delivered as "Commercial Computer Software" as defined in DFARS 252.227-7014 (June 1995) or as a "Commercial Item" as defined in FAR 2.101(a) and, consistent with FAR 12.212 and DFARS 227.7202, as applicable, are licensed to Licensee only with those rights as are granted pursuant to this Agreement (Licensor's standard commercial terms). Technical data is provided with limited rights only as provided in DFAR 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987), whichever is applicable.

9. DATA PRIVACY

A. Definitions – Definitions for this Section 9:

Applicable Data Protection Legislation means as from 25 May 2018, the Regulation (EU) 2016/679 (General Data Protection Regulation) and any delegated and implementing acts adopted in accordance with the General Data Protection Regulation and the member state's laws specifying the provisions of the General Data Protection Regulation applicable to the Processing implemented.

Controller, Data Subject, Personal Data, Process/Processing, Processor and Personal Data Breach each shall have the same meaning as in the Applicable Data Protection Legislation.

Sub-Processor means any Processor appointed by DS SolidWorks or by any other Sub-Processor of DS SolidWorks that receives, from DS SolidWorks or from any other Sub-Processor of DS SolidWorks, Personal Data for the sole and exclusive purpose of processing activities to be carried out on Licensee's behalf in accordance with the terms of this Agreement and the terms of a written subcontract if applicable.

B. Data Privacy. Licensee acknowledges and agrees that Licensee is and shall at all times remain the sole data controller of the Personal Data that will be processed as part of Licensee's access to and use of a Licensed Program(s), and therefore, shall be responsible for complying with all Applicable Data Protection Legislation including, but not limited to (i) transfer of Personal Data, (ii) information of data subjects, and (iii) access, modification, and deletion rights of data subjects. DS SolidWorks, as the data processor, will collect, store and process the Personal Data in accordance with this Agreement.

C. Location of Data Processing. For DS SolidWorks to provide Support Services, Licensee hereby appoints DS SolidWorks as Processor and agrees that Personal Data provided by Licensee ("Customer's Personal Data") may be transferred to and stored, accessed, and Processed in any country in which DS SolidWorks or its affiliates or subcontractors are located. DS SolidWorks will ensure that the same data protection obligations as set forth in this Agreement shall be imposed on the Sub-Processors by way of a contract and/or the standard contractual clauses from the European Commission in such a manner that the Processing will meet the requirements of the Applicable Data Protection Legislation.

D. DS SolidWorks' Obligations. DS SolidWorks, as a Processor, will:

  • to the maximum extent permitted by applicable law or for the duration of licensed use of the Licensed Program(s), whichever is longer, process Customer's Personal Data in accordance with this Agreement and Licensee's written reasonable instructions, which shall in all circumstances be consistent with this Agreement;
  • ensure that any and all persons who are authorized to Process Customer's Personal Data are bound by appropriate obligations of confidentiality;
  • reasonably assist Licensee in ensuring compliance with Licensee's obligations as a Data Controller regarding sections 32 to 36 of the General Data Protection Regulation, taking into account the nature of Processing as described in this Agreement. If DS SolidWorks has reason to believe that a Personal Data Breach affecting Licensee has occurred, DS SolidWorks will (i) notify Licensee of the Personal Data Breach promptly after DS SolidWorks becomes aware of such Personal Data Breach, and (ii) provide Licensee with all relevant and available information to allow Licensee to comply with Licensee's notification obligations with competent supervisory authority;
  • reasonably assist Licensee to fulfill Licensee's obligations in response to requests from Data Subjects to exercise their rights under Applicable Data Protection Legislation in a manner consistent with the use of the DS SolidWorks Licensed Program(s) and DS SolidWorks' role as a Processor;
  • make available to Licensee all information in DS SolidWorks' possession needed to demonstrate Licensee's compliance with Licensee obligations as required by the Applicable Data Protection Legislation and reflected in this section and, in the event compliance with Applicable Data Protection Legislation cannot be evidenced through the appropriate documentation provided by DS SolidWorks, allow for an audit. Licensee shall notify DS SolidWorks in writing of any such audit at least thirty (30) days in advance by indicating the audit's scope, which shall be limited to assessing Licensee's compliance when the documentation provided by DS SolidWorks does not demonstrate such compliance. Such audit shall be conducted by an independent auditor chosen by Licensee at Licensee's cost and shall be performed not more than once every twelve (12) months;
  • keep a list of the Sub-Processors that will be involved in the Processing of Customer's Personal Data due to the Processing activities implemented on Licensee's behalf and inform Licensee of any intended changes concerning the addition or replacement of other Sub-Processors, thereby giving Licensee the opportunity to object to such changes. Licensee will be notified at least fifteen (15) days in advance before authorizing any new Sub-Processor to Process Customer's Personal Data with a mechanism to obtain notice of that update, except in case of emergency. Licensee may reasonably object to DS SolidWorks' use of a new Sub-Processor if (i) such new Sub-Processor Processes Customer's Personal Data, and (ii) Licensee demonstrates that it has a legitimate interest and notifies DS SolidWorks in writing, within fifteen (15) days after Licensee's receipt of the notice, it being understood and accepted that, in the absence of an objection from Licensee, Licensee shall be deemed to have accepted the Sub-Processor. If Licensee notifies DS SolidWorks of Licensee's objection related to the new Sub-Processor within the above timeframe, Licensee may terminate the Licensed Program(s) affected by this change of Sub-Processor within fifteen (15) days after DS SolidWorks' receipt of such notice; and
  • upon termination or expiration of this Agreement, delete or return all Customer's Personal Data to Licensee, at Licensee's option, and delete all existing copies, except where applicable law requires retention of such Licensee's Personal Data or where such Licensee's Personal Data is necessary for proof purposes during the applicable statute of limitation.

 

10. MISCELLANEOUS

A. Purchase Orders. Licensee's purchasing terms and conditions shall not in any way supersede, modify, vary or otherwise supplement the terms of this Agreement.

B. Force Majeure. Neither Licensee nor DS SolidWorks 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 the law governing this Agreement and the courts in such jurisdiction and (ii) the following causes: strikes (whether previously announced), war (declared or not), riots, governmental action, acts of terrorism, acts of God (fire, flood, earthquake, etc.).

C. Severability. If 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.

D. Transfer, Assignment & Subcontract. Licensee shall not subcontract, assign, delegate or otherwise transfer (including, without limitation, by way of merger or contribution) any or all of its rights, duties, benefits or obligations under this Agreement, or sublicense Licensed Program(s) to any third party without DS SolidWorks' prior written approval. Any approved transfer of licenses to another country may be subject to an adjustment in price, as prices are specific to each country or region. This Agreement shall be binding upon, and inure to the benefit of DS SolidWorks and its successors and assigns. DS SolidWorks may 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 DS Group Company and/or to any third party, without Licensee's consent.

E. Amendments & Non-Waiver. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made by written amendment signed by both parties. 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.

F. Audit. During the term of this Agreement and for a period of three (3) years thereafter, Licensee shall establish and maintain accurate information records relating to the use of the Licensed Program, including, without limitation, the list and location of users accessing and using the Licensed Program. When applicable, such information shall include destruction of the Licensed Program and the measures put in place by Licensee to protect access to and use of the Licensed Program. DS SolidWorks shall have the right - at any time, at its own expense, and under reasonable conditions of time and place - to audit and copy these records and/or Licensee's use of the Licensed Program. Licensee also hereby authorizes DS SolidWorks to verify Licensee's compliance with the terms of this Agreement. For such purpose, DS SolidWorks may conduct an audit on Licensee's premises (or on those premises where the Licensed Program is installed for Licensee's use) during normal business hours, in a manner that minimizes disruption to Licensee's business. DS SolidWorks may require Licensee to provide it, or any third party that DS SolidWorks engages to conduct such verification, with machine access, copies of system tools outputs, or other electronic or hard-copy system information as appropriate and allow execution of all appropriate tools generating audit records. If the audit reveals unauthorized use of the Licensed Program, Licensee shall promptly pay to DS SolidWorks any amount(s) owed as a result of such unauthorized use at the Licensed Program's then-current list price. If such unauthorized use is five percent (5%) or greater of Licensee's authorized use with respect to the applicable Licensed Program, then, in addition to Licensee's paying the applicable charges, Licensee shall reimburse DS SolidWorks for the cost of such audit. By invoking the rights and procedures described above, DS SolidWorks does not waive its right to enforce this Agreement or to protect its intellectual property by any other means permitted by law.

G. Export. Export to Licensee of Licensed Program(s) is subject to all applicable countries' export and re-export laws and regulations. Licensee shall not export or re-export, either directly or indirectly, Licensed Program(s) when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. Licensee hereby certifies to DS SolidWorks that the Licensed Program(s) ordered hereunder will not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical or biological weapons or missile delivery systems, and will not be diverted. In the event Licensee violates any of the foregoing provisions, DS SolidWorks may terminate this Agreement and all licenses hereunder upon written notice to Licensee.

H. Entire Agreement; Order of Precedence. The terms and conditions of this Agreement and the terms incorporated herein by written reference (including terms referenced on a website) comprise the complete agreement between the parties relating to the subject matter of this Agreement and supersede all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written. Licensee acknowledges that it has full knowledge of all terms herein and incorporated herein, agrees to be bound by and to comply with such terms, and has not relied on the future availability of functionality or product updates with respect to any Licensed Program in entering into this Agreement. The terms and conditions 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 SolidWorks outside the scope of the licenses expressly granted herein. Licensee hereby acknowledges and agrees that all the Licensed Programs, regardless of the agreement under which they were originally licensed, will be exclusively subject to the terms and conditions of this Agreement.

I. Language. This Agreement is provided in English and may be provided, for informational purposes only, in a language other than English. In such case, if there is any discrepancy or inconsistency of meaning or interpretation between the English version and such other language version, the English-language version shall prevail and shall be the only binding and enforceable version of this Agreement.