READ THIS GSA CAREFULLY BEFORE USING OR ACCESSING GAMMA SERVICES OR INSTALLING OR USING GAMMA SOFTWARE. BY USING THE SERVICES OR SOFTWARE YOU AGREE TO BE BOUND BY THIS GSA. IF YOU DO NOT AGREE TO THE TERMS OF THIS GSA, DO NOT USE THE SERVICES NOR INSTALL/USE THE SOFTWARE.
This GSA contains the terms and conditions that apply to your access to and use of the Software and/or the Services.
By clicking on an acceptance button referring to this GSA or checking a box presenting the terms “By registering an account you accept the Terms and Conditions” or “By signing in with Autodesk you accept the Terms and Conditions” (either on the website of the Company or when installing the Software) or providing a countersigned copy of this GSA (by wet ink signature or electronic signature) to the Company or accessing to or using the Software and/or the Services, you acknowledge and agree that you have read this GSA and agree to be bound by the terms and conditions of this GSA.
You hereby represent and warrant to the Company that you have all requisite power and authority to lawfully enter into this GSA and execute your obligations hereunder. If you are entering into this GSA on behalf of an entity or organisation (e.g. as legal representative or employee of a company), you furthermore represent and warrant to the Company that you have legal authority to bind that entity.
Capitalized terms used in this GSA but not otherwise defined have the meanings ascribed to them in the Definitions section (clause 1) of this GSA.
- “Content” means any files, designs, models, data sets, images, documents or similar material.
- “Documentation” means the support documentation which the Company provides for use with the Software and/or the Services subscribed by the Customer.
- “Effective Date” means the earlier of the date on which the Customer (i) accepts this GSA by clicking on a corresponding acceptance button or checking a box presenting the terms “By registering an account you accept the Terms and Conditions” or “By signing in with Autodesk you accept the Terms and Conditions” or (ii) provides the Company with a signed copy of this GSA or (iii) accesses to or uses the Software and/or the Services.
- “Force Majeure” means any unforeseen circumstances or causes beyond the reasonable control of a party, including acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather.
- “Order Form” means a document (including e-mail) that supplements this GSA and details the subscription by the Customer to the Software and/or the Services, the associated fees, and other related details. In order to be valid, an Order Form must be accepted by the Company. In the case of multiple Order Forms submitted by a single Customer, each will have its own unique identifier and form a separate agreement (together with this GSA). An Order Form may also contain other terms or conditions, mutually agreed upon in writing by the Company and the Customer, which apply specifically to that particular order/contract. the Customer agrees that each Order Form will be signed by a representative having the authority to bind the Customer, and that the Company may rely on this clause in order to presume that such representative has such authority.
- “Services” means any web-based services of the Company as well as the implementation, configuration, and/or training services in relation to the Software which may be subscribed by the Customer from time to time. Services may be provided online (web-based), through any means of communication (including videoconference, phone or email) or in person, as agreed with the Company from time to time.
- “Service Term” means the duration of a subscription to the Software and/or the applicable Services by the Customer (as such Service Term may be renewed pursuant to clause 12.11).
- “Software” means any software or similar materials made available by the Company to the Customer, including any add-ons, components, features, functions or modules, whether provided individually or as part of the Services, a subscription by the Customer or not, and whether provided against the payment of a fee or free of charge (during the trial period which may be granted by the Company), and as replaced, supplemented, updated or upgraded from time to time.
- “Special Terms” means any additional agreement in writing entered into between the Company and the Customer that supplement this GSA.
- “Customer Content” means all Content that the Customer or an Authorised User transfers, submits or uploads to the Software and/or the Services for processing, storage or hosting as well as any computational results that the Customer or an Authorised User may derive from the foregoing through the use of the Software and/or the Services.
- The Customer may access to and use the Software and/or the Services in accordance with the provisions of this GSA.
- In order to access the Software and/or the Services, the Customer must have either (i) a Company user account associated with a valid e-mail address that has been validated by the Company or (ii) an existing user account with a third party that is supported by the Company (e.g. Autodesk user account).
- The Company will provide the Customer with the Software and/or the Services to which the Customer subscribes. The Software and/or the Services may consist of several modules which may be available individually or in the form of bundles.
- The Company may make available the Software and/or the Services to the Customer by login, download or other electronic means. The use of the Software and/or the Services may require to download, install or automatically update the Software.
- The Company undertakes, as a general obligation of means (obligation de moyens), to use commercially reasonable efforts to ensure the quality and continuity of the Services it provides to the Customer.
- The Customer is responsible for all Customer Content, including the development, content, operation, maintenance and use of Customer Content (including any Customer Content processed by means of the Software). The Customer is furthermore responsible for properly configuring and using the Services and taking appropriate action to secure, protect and backup the Customer Content in a manner that will provide appropriate security and protection.
- The Company does not obtain rights with respect to Customer Content. The Customer however consents to the use by the Company of the Customer Content to the extent required to provide the Services.
- The Customer acknowledges and agrees that the Services and/or the Software may be updated, upgraded, replaced or supplemented from time to time in accordance with this GSA.
- No addition to, variation of, exclusion or attempted exclusion of any provision of this GSA shall be binding on the Company unless in writing and signed by a duly authorized representative of the Company.
- The terms of this GSA also apply to any Software updates or upgrades provided by the Company to replace or supplement the original Software, unless such update or upgrade is accompanied by Special Terms, in which case the GSA is supplemented by the relevant Special Terms.
- If the Customer is provided with the Company’s Services, the Customer has the non-exclusive, non-transferable right, which cannot be sub-licensed and is unilateral on the part of the Company, to use the Services and the Software in unaltered form.
- The Customer does not acquire any rights whatsoever concerning the Services or the Software, in particular, no trademark, patent or other intellectual property rights.
- All the documents provided by the Company to the Customer, in particular, the Documentation, may not be copied or distributed in any way by the Customer, whether for free or at a cost.
- This GSA may be supplemented by an Order Form and/or Special Terms. Any conflict among this GSA and/or any Order Form and/or any Special Terms, will be resolved in the following order of priority: (a) Special Terms, (b) Order Form and (c) this GSA.
- Subject to the terms and conditions of this GSA, the Company grants to the Customer a limited, non-exclusive, non-transferable license, without right to sub-license, to use the Software, the Services and/or the Documentation within the scope of the subscription by the Customer (including the permitted number of Authorised Users, type and level of the Service selected by the Customer) and for the duration of the Service Term. The Company does not transfer any ownership rights or title to the Software, the Services or the Documentation to the Customer.
- All Software, Documentation and related materials are licensed, not sold, by the Company to the Customer for use bound to the terms of this GSA, and the Company expressly reserves all rights not explicitly granted to the Customer by virtue of this GSA.
- The Customer may not license the Software and/or Documentation to third parties, nor distribute a sub-license, nor lend, rent, display, transfer by lease or transfer otherwise the Software and/or Documentation to a third party without the prior written consent of a duly authorised representative of the Company.
- All rights to the Software, the Documentation and the related materials belong to the Company. A license granted by the Company to the Customer does not give the Customer any ownership or title to the Software, the Documentation or any related materials.
4. AUTHORISED USERS AND ADMINISTRATORS
- Depending on, and in accordance with its subscription, the Customer may grant specific access rights with respect to the Software and/or the Services subscribed by the Customer’s to one or several persons determined at the discretion of the Customer (each an “Authorised User”), depending on the subscription of the Customer. This GSA must be accepted by each Authorised User prior to that Authorised User’s access to or use of the Software and/or the Services and the Customer procures such acceptance.
- The Customer undertakes and procures that each Authorised User accepts this GSA prior to that Authorised User’s access to or use of the Software and/or the Services. The Customer will obtain from its Authorised Users any consents necessary to allow Administrators to engage in the activities described in this GSA.
- The Customer may define one or several Authorised Users as “Administrators”. The Administrators may have the ability to monitor, restrict, or terminate Authorised User’s access to the Software and/or the Services subscribed by the Customer and also may have the ability to access, disclose, restrict or remove the Customer’s data in or from the Software and/or the Services.
- The Customer is at all times solely responsible for the administration of the Software and/or the Services within its organization, including any use of the Software and/or the Services by an Authorised User. As such, the Customer is in particular responsible for:
- anyone who obtains, accesses or uses the Software and/or the Services through the Customer’s account;
- the security of the Customer’s account and all activity associated with it;
- maintaining the confidentiality of all Authorised User accounts and related passwords;
- managing access to Authorised User accounts;
- ensuring that all information relating to the Customer is up-to-date, true and complete; and
- ensuring that all Authorised Users’ use of the Software and/or the Services comply with this GSA at all times. The Customer undertakes and procures that it will prevent any unauthorized use of the Software and/or the Services by its Authorised Users and terminate any unauthorized use of or access to the Software and/or the Services. The Customer furthermore undertakes that it will promptly notify the Company of any unauthorized use of or access to the Software and/or the Services of which it becomes aware.
5. The Company is not responsible for unauthorised access to a Customer’s account or Software and/or the Services subscribed by a Customer.
5. OBLIGATIONS OF THE CUSTOMER
- To the extent required in connection with the provision of the Services, the Customer will provide the Company with reasonable support and access to its facilities, systems, materials and personnel needed to perform the Services and will be responsible for any negative impact to the services schedule to the extent the Customer fails to do so.
- The Customer acknowledges and agrees that the Company may require to collect information about the hardware used by the Customer and intended usage of the Software and/or the Services.
- You may use and access our web-sites and web-services in accordance with the terms of this GSA.
- The Customer undertakes not to use Customer Content, technical equipment, software or other data that could lead to the Company’s system being damaged.
- The Customer is not entitled to make changes to or any backup copy of the Software without the prior written consent by the Company.
- The Customer will, and shall ensure and procures that its Authorised Users, treat the Software with due care.
- The Customer undertakes not to misuse the Services or Software of the Company, not to provide the Services or Software to third parties and not to sell or otherwise trade using them.
- The Customer shall treat the Software of the Company carefully and keep it in such a way that third parties do not have access to the Software or the Services, except if such access or disclosure is required pursuant to an enforceable search warrant, court order or subpoenas.
- The Customer undertakes to use the Software and/or the Services only in accordance with the GSA and not to use the Software and/or the Services as memory space for storage or dissemination of illegal content in particular.
- The Customer assumes sole responsibility for compliance of the use of the Software and/or the Services with all applicable laws, rules and regulations as well as contractual obligations applicable to the Customer.
- The Customer further undertakes not to resort to the Software and/or the Services in any way or to let third parties use them, leading to third party damage or security or operational risks for the Company.
- The Customer is not permitted to export or reexport the Software.
- The Customer agrees that it will not use the Software for purposes prohibited by applicable laws, rules and regulations, including, but not limited to, the development, design, manufacturing or production of nuclear, chemical or biological weapons.
- The Customer agrees to assist the Company free of charge for rectifying any faults. The Customer will notify the Company about defects immediately so that remedial can be carried out as soon as reasonably possible.
- The Customer undertakes to take all necessary measures to ensure that no adverse effects occur relating to the performance of the Company’s services.
- During any applicable Service Term, the Customer grants the Company the right to identify the Customer as a customer of the Software and/or the Services, it being specified however that using the Customer’s logo in marketing materials and on the Company’s website is subject to the prior written consent (e-mail suffices) of the Customer. Neither party shall issue any press release regarding their relationship without the prior written consent of the other party.
6. INFORMATION RELATING TO THE CUSTOMER AND NOTIFICATIONS
- The Customer must immediately inform the Company of any changes to its contact details (including physical address and e-mail address) or other significant information regarding the Customer.
- If the Customer fails to do this, the Company’s communication shall be deemed as delivered upon the last available contact details of the Customer.
- The Customer accepts that the Company is entitled to communicate all information and documents (including invoices) to the Customer by all means of communication (including e-mail, SMS or other electronic media).
- Statements shall be deemed received when the Customer should be able to check or view these under normal circumstances.
- Any communication by e-mail shall be deemed as received on the date it has been sent if sent during normal working hours (8am to 7pm Luxembourg time) and on the next following day if sent outside normal working hours. Mail shall be deemed as received on the second business days after it has been sent.
- All communications and notices made or given pursuant to this GSA must be in the English language.
7. CUSTOMER LIABILITIES
- The Customer is liable to the Company for all direct damages resulting from a breach of this GSA.
- The Customer undertakes, upon first request, to fully indemnify the Company and hold it harmless from (i) all direct damages resulting from a breach of this GSA and (ii) all third party claims against the Company resulting from a breach of the Customer’s obligations under the GSA.
8. SOFTWARE, SERVICE OR FEATURE DISCONTINUATION
- The Company reserves the right to discontinue the Software and/or the Services, product or feature and all specifications of the Software and/or the Services due to technical or operational reasons. The Company will notify the Customer at least two months before any such discontinuation.
- The Customer acknowledges and agrees that the Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by the Company regarding future functionality or features.
- The Customer may benefit from ongoing product development and, in return, acknowledges that temporary maintenance time can be required for updates and upgrades of the Software.
- The Company may update the Software and/or the Services from time to time by security fixes, hot fixes, patches and other updates (including new features, new functions and other modifications), causing temporary interruption of the Software and/or the Services. All updates are subject to the same license and other terms as the Software to which the update applies. If possible, the Company will notify the Customers in advance of updates that are expected to cause a temporary interruption of the Software and/or the Services.
- The Software is protected by copyright laws and international copyright treaties, as well as other laws and agreements concerning intellectual property.
- The Reseller is not entitled to source code to the Software and the Customer must not (a) copy, modify or reproduce the Software or accompanying Documentation in any way, (b) create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, (or the underlying ideas, algorithms, structure or organization) from the Software, or any part thereof, or aid or permit others to do so, except to the extent expressly permitted by the Company’s prior written consent; (c) remove or alter any trademark, logo, copyright or other proprietary notices or markings in the Software; or (d) create any derivative work of the Software or any portion thereof.
- All intellectual property rights associated with or arising from the Software including copyright, trade secrets, patents and trademarks belong to the Company.
- Company may customize or create new software or services to help customer to solve specific problems. All rights to the customization such as all intellectual property rights or trademarks that are the result of the customizations of software or services belong to company.
- All title and copyright, as well as industrial copyright for the Software (including but not limited to any images, photographs, animations, video, audio, music, text and “applets” that are contained in the Software), the accompanying printed materials, and any copies of the Software belong to the Company. For the avoidance of doubt, the Customer will remain the owner of the Customer Content that is uploaded for use of the Services or the Software.
11. DATA PROCESSING AND DATA USAGE
- The Company will use appropriate technical and organizational security measures to transfer, store, and process Customer Content as submitted to the Software and/or the Services, including account and contact information of the Customer (hereafter called the “Data”). These measures are designed to protect the integrity of the Data and guard against the unauthorized or unlawful access and usage.
- The Customer consents to the storage of the Customer Content in the EU and the United States of America, unless otherwise specified in the Special Terms (if any). The Company will not access or use Customer Content except to the extent necessary to maintain or provide the Services, or as necessary to comply with the laws, rules and regulations applicable to the Company.
- The Customer acknowledges and agrees that the Company collects technical information about the Customer’s hardware and usage. Such information is gathered to check against the conditions of this GSA and is in such form you cannot be identified. The Company may use this information to guard against abuse and to analyse usage for improvement of the Software and/or the Services.
- The Company can provide the Customer with information about technical and commercial information about the Company’s products and partners and other information. The information can be delivered in form of e-mails, newsletters and phone calls or physical letters.
12. BILLING AND PAYMENT
- The Customer will pay all fees related to the purchase of the subscription to the Software and/or the Services as selected by the Customer.
- Except as otherwise specified herein or in an Order Form or the Special Terms:
- access to the Software and/or the Services are purchased as subscriptions;
- fees are based on number of Authorised Users and/or projects for which the Software and/or the Services are to be used;
- all fees must be paid in full upon subscription, except in the case that the Service Term exceeds twelve months and in which case the fees will be due and payable quarterly in advance of the relevant quarter to which they relate;
- payment obligations are non-cancellable;
- fees paid are non-refundable (except in case of discontinuation);
- quantities purchased cannot be decreased during the relevant subscription Service Term;
- the Customer will provide the Company with valid and updated credit card information, or with an alternative payment method reasonably acceptable to the Company.
3. If the Customer provides credit card information to the Company, the Customer authorizes the Company to charge such credit card for all subscriptions listed in the Order Form for the relevant subscription Service Term and any renewal subscription Service Term(s). Such charges shall be made in advance, in accordance with this GSA.
4. Fixed charges are billed in advance for the respective accounting period.
5. If the Order Form specifies that payment will be by a method other than a credit card, the Company will invoice the Customer in advance and otherwise in accordance with the relevant Order Form.
6. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date.
7. Invoices are deemed as accepted by the Customer if no written objection has been raised within thirty (30) days of billing and the Customer does not start legal proceedings within a further thirty (30) days.
8. The Customer is responsible for providing complete and accurate billing and contact information to the Company (including its VAT number) and notifying the Company of any changes to such information.
9. The Customer must bear any charges in connection with the payment of the fees for the subscription to the Software and/or the Services (e.g. bank charges in the case of a cash transfer and other related expenses).
10. The Company is entitled to unilaterally adapt prices for subscriptions to the Software and/or the Services and will inform the Customer prior to any adaptation, it being specified that no adaptation may take place prior to the end of the relevant subscription Service Term or, if during the Service Term, without the prior consent of the Customer.
11. Except as otherwise specified in an Order Form, then-current number of subscriptions (including any add-ons) will automatically renew at the Company’s then-current rates for additional periods equal to the expiring subscription Service Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) calendar days before the end of the relevant subscription Service Term.
13. OVERDUE CHARGES
- All Customer payments will be credited against their earliest debts.
- For late payments, the Customer will be charged a default interest of 10% p.a. of the amount outstanding as from the date on which the invoice was due and payable. All necessary and appropriate related costs incurred for the intervention of lawyers and collection agencies are to be borne by the Customer.
- The Company may condition future subscription renewals and purchases on payment terms shorter than those specified in this GSA.
14. SUSPENSION OF SERVICE AND ACCELERATION
- The Company may suspend the Customer’s access to or use of the Software and/or the Services in full or in part and with immediate effect if the Company determines that:
- the Customer is in breach of this GSA, it being specified that a breach shall include without limitation a failure of timely settlement of outstanding invoices, data protection violations or security negligence in the usage of the Software and/or the Services;
- the Customer’s or an Authorised User’s use (i) poses a security risk to the Company or any third party, or (ii) could adversely impact the Company’s systems or the Software or the Services, or (iii) could subject the Company to any liability or (iv) could be unlawful or fraudulent;
- the Customer is subject to insolvency or any other procedure affecting the rights of creditors generally in its jurisdiction of residence.
- The Company may suspend the Customer’s access to or use of the Software and/or the Services in full or in part and with immediate effect if the Company determines that:
2. By way of derogation to clause 14.1, the Company will provide at least five (5) business days advance notice to the Customer prior to suspending the access to or use of the Software and/or the Services in the case of failure by the Customer to settle outstanding amounts owed to the Company
3. If any amount owed by the Customer under this GSA or any other agreement for the subscription to the Software and/or the Services is thirty (30) or more calendar days overdue (or ten (10) or more calendar days overdue in the case of amounts the Customer have authorized the Company to charge to the Customer’s credit card), the Company may, without limiting the Company other rights and remedies, accelerate the Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the access to or use of the Software and/or the Services to the Customer until such amounts are paid in full.
4. If the Company suspends the Customer’s right to access or use any portion or all of the Software and/or the Services, the Customer remains responsible for all fees and charges you incur during the period of suspension and will not be entitled to any credits or refunds during any period of suspension.
- The Company subscription fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable against the Customer and its Authorised Users by any jurisdiction whatsoever (collectively, “Taxes“).
- The Customer is responsible for paying all Taxes associated with the Customer’s subscriptions.
- If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this clause 15, the Company will invoice the Customer and the Customer will pay that amount unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
16. PERMITTED USE, USAGE LIMITS AND RESTRICTIONS
- During the Service Term, you may use the Software and/or the Services for the number of Authorised Users and projects for which you have subscribed.
- The Customer shall use the Services and Software in compliance with all applicable laws, rules and regulations and not for any unlawful purpose. As such, the Customer represents and warrants to the Company that the Customer Content will not violate any applicable laws, rules or regulations.
- The Customer may not use or display the Software together with material that is pornographic, racist, vulgar, obscene, defamatory, libellous, abusive, promoting hatred, discriminating or displaying prejudice based on religion, ethnic heritage, race, sexual orientation or age is strictly prohibited.
- It is allowed to use the Software or Services for the storage and (re)production of Content in accordance with the purpose of the Software or the Services, provided that such Content is not copyrighted or for which you own the copyright, or Content you are authorized or legally permitted to reproduce.
- It is not permitted to make the Services or Software available over a network in such way it can be used simultaneously by more users then the quantity subscribed.
- The usage of the Software and/or the Services are subject to usage limits, including, for example, the quantities specified in Order Forms corresponding to product / service levels and number of Authorised Users / projects under a specific Customer subscription. Unless otherwise specified:
- a quantity in an Order Form refers to a number of Authorised Users specifically designated to use the Customer’s subscription to the Software and/or Services, and the Software and/or the Services may not be accessed by more than that number of Authorised Users;
- an Authorised User’s password may not be shared with any other individual and is valid on no more than three (3) devices;
- an Authorised User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Software and/or the Services. If the Customer or one of its Authorised Users who is designated to use the Customer’s subscription exceeds a contractual usage limit, the Company reserves the right to impair the Customer’s (or any of its Authorised User’s) access to the Software and/or the Services until the Customer conforms its use to the contractual limit and/or to charge the Customer for overages.
7. The Customer and any Authorised User (if applicable) may access to and use the Software on up to three devices at the same time. Such usage on several devices is however only permitted if the usage occurs by the same individual. In the case of switching a device on which the Software has been installed, you must completely remove the Software from such device by deleting the Software.
8. The assignment, sublicense, networking, sale, or distribution of copies of the Software and/or the Services are strictly forbidden without the prior written consent of the Company. It is a violation of this GSA to assign, sell, share, loan, rent, lease, borrow, network or transfer the use of the Software and/or the Services without the prior written consent of the Company.
17. TERMINATION AND EFFECT OF TERMINATION
- This GSA commences on the Effective Date and is entered into for a fixed duration corresponding to the Service Term. In the case of renewal of the subscription by the Customer to the Software and/or the Services in accordance with clause 12.11, this GSA will automatically renew for the corresponding Service Term.
- The Company may terminate the GSA prior to the expiry of the then-effective Service Term and with immediate effect for any of the reasons set forth in clause 14.1 by notifying the Customer accordingly. If the Company carries out such an extraordinary termination with immediate effect, the Customer has no claim against the Company and the Customer must pay any unpaid fees covering the remainder of the Service Term.
- The Customer may at all times and without indication of reason terminate its subscription to the Software and/or the Services or cancel its account prior to the end of the then-effective Service Term, it being specified that the Company will not provide any refund or credit for subscription charges or other fees or payments to the Customer and, in addition to other amounts the Customer may owe to the Company, the Customer must immediately pay any then-unpaid subscription charges associated with the remainder of the applicable Service Term.
- Upon the termination of this GSA, the Customer shall cease all use of the Software and/or Services and destroy all copies of the Software in its possession. All accounts of Authorised Users providing access to the Software and/or the Services will be ended.
- Upon expiration or termination of this GSA, all subscriptions and licenses granted by the Company under this GSA and the Company’s obligation to provide (and the Customer’s right to access and use) the Software and/or the Services will terminate.
18. INDEPENDENT CONTRACTORS
- The parties are independent contractors.
- No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this GSA or use of the Software and/or the Services.
- Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
19. THIRD PARTY INFORMATION
- The information used in the Software may include materials from third parties or links to certain third party websites.
- You acknowledge and agree that the Company is not liable for such content and that it is not the Company’s task to inspect and evaluate such content.
- Links to other websites are provided solely for your convenience.
- You agree that you will not use this content in a manner that infringes the rights of any other party or such rights harm in any way, third party materials.
- Each party warrants to treat the other party’s business secrets as such in connection with this GSA and its implementation, and warrants not to make them accessible to third parties, insofar as these are not generally known, or already known to the recipient in advance without a confidentiality duty, have been communicated or left to the recipient by a third party without a confidentiality duty or are proven to be developed by the recipient independently, or are to be disclosed under a final administrative or judicial decision.
- A party’s subcontractor, agents or employees are not considered as third parties to the extent they are subject to a corresponding confidentiality duty according to this point.
- Violations of the non-disclosure duty mean that the breaching party is liable to the other for any damages resulting from such breach.
21. LOCAL USE DECISIONS
- The Company will not provide the Customer with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which the Customer uses the Software and/or the Services.
- The Customer is at all times responsible to use the Software and/or the Services in accordance with the laws, rules or regulations applicable to it. The Company may not be held liable for any use of the Software and/or the Services which is made in breach of the relevant laws, rules or regulations in the jurisdictions in which the Customer uses the Software and/or the Services. The Customer agrees to hold harmless and indemnify the Company against all claims and costs which may arise as a result of such unauthorized use of the Software and/or the Services.
- The parties acknowledge and agree that not all features, functions and capabilities of the Software may be used in all jurisdictions and the Customer recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the Software as to the intended purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions“).
- The Customer is responsible for Local Use Decisions and the Company disclaims all liability for Local Use Decisions.
- THE SOFTWARE AND/OR THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, THE COMPANY (A) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOFTWARE AND/OR THE SERVICES OR THIRD-PARTY CONTENT (IF ANY), AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SOFTWARE AND/OR THE SERVICES OR THIRD-PARTY CONTENT (IF ANY) WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT (INCLUDING CUSTOMER CONTENT) WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
- THE CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY SERVICES IN CONNECTION WITH BUILDING INFORMATION MODELLING (INCLUDING AUGMENTED REALITY OF SUCH MODELLING) ARE PROVIDED ON THE BASIS OF THE CUSTOMER CONTENT AND FOR WHICH THE COMPANY IS NOT RESPONSIBLE. THE CUSTOMER FURTHERMORE ACKNOWLEDGES AND AGREES THAT AUGMENTED REALITY VISUALISATIONS PROVIDED AS PART OF THE USE OF THE SOFTWARE AND/OR THE SERVICES MAY BE INACCURATE, THAT THEY ARE ONLY CONCEIVED AS A SUPPLEMENT TO FACILITATE BUILDING INFORMATION MODELLING AND THAT THE CUSTOMER MUST NEVER SOLELY RELY ON ANY SUCH AUGMENTED REALITY VISUALISATIONS.
- THE SOFTWARE MAY CONTAIN COMPONENTS THAT REACT NEGATIVELY TO ERRORS OR CONTAIN ERRORS THAT MAY BE DETECTED LATER AND CORRECTED USING THE USUAL PATCHES AND THEREFORE SHOULD NOT BE USED IN HIGH RISK ENVIRONMENTS.
- THE SERVICES AND THE SOFTWARE WERE NOT DESIGNED AND ARE NOT INTENDED TO BE USED IN A HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE (FAULT TOLERANT) PERFORMANCE OR IN ANY OTHER APPLICATION WHERE FAILURE OF THE SOFTWARE COULD RESULT DIRECTLY IN DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR ENVIRONMENTAL DAMAGE.
23. LIMITATION OF LIABILITY
- THE COMPANY, ITS AFFILIATES, REPRESENTATIVES, EMPLOYEES AND AGENTS WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, DELAYED PROJECTS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, REPRESENTATIVES, EMPLOYEES AND AGENTS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INCORRECT USE OF THE SOFTWARE AND/OR THE SERVICES, INCLUDING AS A RESULT OF AN INCORRECT CONFIGURATION OF THE SOFTWARE OR YOUR CONTENT; (B) YOUR INABILITY TO USE THE SOFTWARE AND/OR THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS GSA OR YOUR USE OF OR ACCESS TO THE SOFTWARE AND/OR THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SOFTWARE AND/OR THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE AND/OR THE SERVICES FOR ANY REASON; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (D) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS GSA OR YOUR USE OF OR ACCESS TO THE SOFTWARE AND/OR THE SERVICES; OR (E) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT (INCLUDING CUSTOMER CONTENT) OR OTHER DATA. IN ANY CASE, THE AGGREGATE LIABILITY OF THE COMPANY, ITS AFFILIATES, REPRESENTATIVES, EMPLOYEES AND AGENTS UNDER THIS GSA WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY TO THE COMPANY UNDER THIS GSA FOR THE USE OF THE SOFTWARE AND/OR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS CLAUSE 23.1 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- NO PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY DELAY OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS GSA WHERE SUCH DELAY OR FAILURE RESULTS FROM FORCE MAJEURE.
- THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FEES TO BE PAID FOR THE SUBSCRIPTION TO THE SOFTWARE AND/OR THE SERVICES FAIRLY REFLECT THIS ALLOCATION OF RISK AND THAT IN THE ABSENCE OF THE LIMITATIONS OF LIABILITY SET FORTH IN THIS CLAUSE 23, THE TERMS OF THIS GSA, INCLUDING WITHOUT LIMITATION THE ECONOMIC TERMS RELATING TO THE SUBSCRIPTION OF THE SOFTWARE AND/OR THE SERVICES, WOULD BE SUBSTANTIALLY DIFFERENT.
24. NOTIFICATIONS TO THE CUSTOMER
- The Company may use and process the data provided by the Customer (including Customer account data) in order to address notifications to the Customer which relate to the access to or use of the Software and/or the Services (e.g. reminder of the expiration of the trial period, upcoming updates etc).
- Notifications by the Company to the Customer may be made by any means of communication, including by e-mail or by notifications embedded in the Software.
25. CHANGE OF TERMS AND CONDITIONS
- The Company is entitled to change this GSA unilaterally at any time by notifying you accordingly (by sending a message to the e-mail address associated with the relevant account or through a notification embedded in the Software).
- If the Customer consents to the change to the GSA or continues to use the Software and/or the Services following the notified effective date of the change to this GSA, the Customer agrees to be bound by the amended GSA.
- This GSA has last been modified on the effective date indicated at the beginning of this GSA.
- Should one or several provisions of these GSA wholly or partially be invalid, illegal or unenforceable, the validity of the remaining provisions shall not be affected. The invalid, illegal or unenforceable provision shall be replaced by an analogous valid provision, which serves the economic purpose of the invalid or unenforceable clause as closely as possible.
27. APPLICABLE LAW AND SEVERABILITY
- This GSA shall be construed and governed in accordance with the laws of Luxembourg.
- The Company and the Customer both agree that the exclusive jurisdiction and venue of any lawsuit between them shall be a court sitting in Luxembourg.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS GSA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN GAMMA AND YOU, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN GAMMA AND YOU RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.