zSpace has pre-loaded certain software on this machine. All other software licensed from zSpace will be delivered electronically. The software provided includes zSpace proprietary software and may include third party software. PRIOR TO INSTALLING ANY SOFTWARE, YOU MUST AGREE TO THE END USER LICENSE TERMS APPLICABLE TO THE SOFTWARE.
The zSpace Software and certain third party software are subject to the terms and conditions of the zSpace End User License Agreement below. Other third party software is provided subject to the third party End User License terms as available at http:http://zspace.com/edu_files/actpdfs/legal. If you have purchased a license to third party software, you agree to the End User Terms as indicated. You represent that you have read the applicable terms prior to installing the software.
BY INSTALLING THIS SOFTWARE OR CLICKING ON THE “I Agree” BUTTON, LICENSEE IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT OR THE APPLICABLE THIRD PARTY END USER LICENSE TERMS. This Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. This Software is licensed (not sold), and its use is subject to the terms of the applicable Agreement.
ZSPACE END USER LICENSE AGREEMENT
This End-User License Agreement (the “Agreement”) is a legal agreement between the End-User, (“you” or "Licensee") (either an individual or an entity) and zSpace®, Inc. (“zSpace”) regarding the use of the zSpace Software.
1. Definition of Software and Documentation. “Software” means the object code of the computer software for which you have paid the applicable fees and that is provided to you by zSpace, all permitted reproductions of the same made by Licensee, and all upgrades, enhancements or improvements subsequently provided to Licensee by zSpace or its authorized agents, distributors, or resellers in connection with use of the zSpace hardware and delivery of the zSpace service. “Documentation” means the related documentation generally provided by zSpace for use with the Software and service.
2. License. The Software, maintenance services, software upgrade services, support and related services are provided to you by zSpace as a service in exchange for your continuing subscription fees. Subject to the other terms in this Agreement, zSpace hereby grants to Licensee a non-exclusive license to install and use the Software on zSpace® hardware for Licensee’s internal business purposes for the number of zSpace units and for the duration for which you have paid the applicable fees. Software licensed on a subscription service basis is limited to use during the time period for which Licensee continues to pay the subscription fees. Licensee may copy the Documentation as reasonably necessary in connection with Licensee’s authorized internal use of the services and related Software. Licensee may not use the Software with any equipment other than the equipment specified by zSpace. Licensee may not loan, rent, lease, license, sublicense or distribute the Software or any copies. The Software contains certain open source software and is licensed pursuant to the applicable open source licenses specified in the documentation and is provided WITHOUT ANY WARRANTY. You can modify and distribute the open source software in accordance with the terms of the specified licenses. Upon request at any time within three (3) years from your receipt of this software the supplier will provide it to you in source code form. More details are available from zSpace at zSpace.com.
3. Copyright and other intellectual property rights. All intellectual property rights in the Software(s) and Documentation are owned by zSpace or its suppliers and are protected by copyright and other intellectual property laws, international treaty provisions and applicable national laws. All rights not expressly granted in this Agreement are reserved by the copyright owners.
4. Further Restrictions. Except to the extent the following prohibitions may be prohibited by local law, Licensee may not: (a) modify, adapt, decompile, disassemble, or reverse engineer the Software; (b) create derivative works (as defined in the United States Copyright Act, 17 USC §101) based on the Software; (c) allow any third party to use or have access to the Software or Documentation, except for an outsourced service provider who agrees to be bound by this Agreement; (d) make the Software available over the Internet or similar networking technology; (e) use, evaluate or view the Software or Documentation for purpose of designing, modifying, or otherwise creating any computer instruction code, or any portion thereof, which performs functions similar to the functions performed by the Software; or (f) sublicense the Software or Documentation to any third party. If Licensee wishes to obtain interface information relating to the Software, to achieve interoperability, a request should be made in writing to zSpace.
5. Ownership. Licensee acknowledges and agrees that: (a) the Software embodies valuable trade secrets of zSpace and/or its licensors; (b) the Software and Documentation, including any copy or partial copy made by Licensee, are the property of zSpace
or its licensors, and not Licensee; and (c) Licensee will use the Software and Documentation only under the terms and conditions described herein. Licensee may not remove or alter any copyright, trademark and other proprietary rights notices included by zSpace on the originals, and will include all such notices on any copies.
6. Upgrades. For Software that is provided as an upgrade, Licensee may use the upgrade only in accordance with the terms of this Agreement. Licensee may not be entitled to upgrades unless applicable fees have been paid. Upgrades will be delivered electronically.
7. Limited Warranty; Limitation of Liability. The limited warranty applicable to this Software (not including any open source software) are as stated in the zSpace® Product Documentation, whether in paper or electronic form, accompanying the Software. Such warranty is incorporated by this reference. ZSPACE DOES NOT WARRANT THIRD PARTY SOFTWARE, ALL SUCH SOFTWARE IS PROVIDED ‘AS IS’ AND ZSPACE HEREBY DISCLAIMS ANY LIABILITY FOR THIRD PARTY SOFTWARE INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINGEMENT, AND ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. TO THE FULLEST EXTENT ALLOWED BY LAW, ZSPACE EXCLUDES ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF ZSPACE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ZSPACE’S MAXIMUM LIABILITY TO LICENSEE FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE LICENSE FEES ACTUALLY PAID DURING THE 12-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. THESE DISCLAIMERS OF LIABILITY WILL NOT BE AFFECTED IF ANY LIMITED REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
8. Termination. Upon any violation of any of the provisions of this Agreement, or upon expiration of the term of the subscription service license, Licensee’s rights to use the service and the related Software shall automatically terminate and Licensee shall be obligated to destroy all copies of the Software and related Documentation. Licensee may terminate this Agreement and the service at any time by destroying the Software and related Documentation however license fees due prior to such termination or before expiration of the applicable subscription term shall not be refundable.
9. Software Transfer. Licensee may permanently transfer all of its rights under this Agreement, provided: (a) Licensee transfers the physical zSpace® hardware for which the Software is made available; (b) Licensee transfers Documentation and all copies of the Software, Documentation and any upgrades with the zSpace® hardware on which it is installed; (c) Licensee retains no copies, including copies stored on any medium; (d) the recipient agrees to the terms of this Agreement and (e) Licensee provides notice of such transfer within a reasonable time.
10. Statutory rights. If Licensee is an individual consumer and not a business, the exclusions and limitations contained in this Agreement do not affect any statutory rights to which Licensee may be entitled and which may not by law be excluded or limited.
11. U.S. Government License Rights. If Licensee is an entity of the United States Government, Licensee shall receive the Software with restricted rights. In no event shall the Government acquire greater than RESTRICTED/LIMITED RIGHTS. At a minimum, use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR §52.227-14 Alternates I, II and III (JUN 1987); FAR §52.227-19 (JUN 1987) and/or FAR §12.211/12.212 (Commercial Technical Data/Computer Software); and DFARS §252.227-7015 (NOV 1995) (Technical Data) and/or DFARS §227.7202 (Computer Software) as applicable. If Products are sold under a US Government contract, zSpace rejects provisions or clauses required to be passed on to sellers pursuant to such contract and such provisions or clauses shall not be deemed to be binding on zSpace unless accepted in writing by an authorized representative.
12. Export. Licensee agrees not to export, either directly or indirectly, the Software or Documentation without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. In the event Licensee exports any Software or Documentation from the United States or re-exports it from a foreign destination, Licensee shall ensure that the export/re-export or import of the Software and Documentation is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government.
13. Entire Agreement; Other Signed License. This Agreement represents the complete agreement concerning the matters covered and may be amended only by a writing executed by both parties. However, if Licensee has in effect a signed agreement with zSpace with respect to the Software and services covered by this Agreement, then notwithstanding any other provision in this Agreement, the terms of that signed agreement shall control Licensee’s use of the Software, services and related
Documentation. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and will be interpreted to reflect the original intent of the parties.
14. Waiver. A waiver by zSpace of any term or condition of this Agreement in any instance shall not be deemed or construed to be a future waiver of such term or condition.
15. Construction; Language. As used in this Agreement, the words "include" and "including", and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation." The headings in this Agreement will not be referred to in connection with the construction or interpretation of this Agreement. This Agreement is in the English language only, which language shall be controlling in all respects, and all notices under this Agreement shall be in the English language.
16. Governing Law and Jurisdiction: THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AS SUCH LAWS ARE APPLIED TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN CALIFORNIA BETWEEN CALIFORNIA RESIDENTS, AND BY THE LAWS OF THE UNITED STATES. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.
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