DATACUBIST OY – SIMPLEBIM® SOFTWARE LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE INSTALLING, DOWNLOADING OR USING THE SOFTWARE
This Software License Agreement (“Agreement”) is a legal agreement between You (either an individual or a single legal entity) and Datacubist Oy (“Datacubist”) authorizing You to use the Software under the terms and conditions set forth below. By installing, downloading copying, or otherwise using the Software and/or clicking the applicable button to complete the installation process, You consent to the terms of this Agreement, and You agree to be bound by this Agreement. If You do not wish to become a party of this Agreement and bound by all of its terms and conditions, click the appropriate button to cancel the installation process, do not install or use the Software, and immediately delete all of the Software and any accompanying User Documentation.
1. DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
1.1 “API” means the Application Programming Interface included in the Software that is specified in the applicable User Documentation.
1.2 “Authorized Applications” means those applications that You create using the API of a validly licensed copy of the Software that are compatible and can be run exclusively together with the Software and add primary value added functionality and/or enhancements to the Software. Applications that can be run independently from the Software are expressly excluded from this definition.
1.3 “Reseller” means an entity selling and distributing Datacubist products which is authorized by Datacubist to do so.
1.4 “Software” means the applicable version of the SIMPLEBIM® computer software program provided with this Agreement, which includes computer software, User Documentation, Third Party Components and Supplemental Software, if any.
1.5 “Upgrade” means a subsequent version of the Software that You have previously licensed from Datacubist.
1.6 “User Documentation” means explanatory printed or electronic materials and any other possible documentation related to the Software that Datacubist or Reseller delivers with the Software or sends to You when or after You acquire or install the Software.
1.7 “Third Party Components” means any third party software licensed by Datacubist from a third party and embedded in the Software as further specified in the applicable User Documentation.
1.8 “Rental Period” means a fixed period for which You have purchased a Commercial Rental Network License or a Commercial Rental Single User License and for which the Agreement is in force. It starts from the date of the payment of the rental fee and ends at the end of the rental term.
2. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement and payment of the applicable license fee to Datacubist or Reseller, Datacubist grants You a non-exclusive, non-transferable, non-sublicensable, limited right to install and use the Software under one of the licenses listed in Sections 2.1 through 2.10. For licenses specified in Sections 2.1 through 2.8 Your use rights do not extend to Upgrades, for which You are required to purchase a separate license or subscription. For rental licenses specified in Sections 2.9 and 2.10 Your use rights extend to Upgrades for the duration of the Rental Period. Your license to use the Software is conditioned on Your continuous compliance with all license limitations, restrictions and other terms in this Agreement and applicable User Documentation. No license is granted under the terms of this Agreement if You did not acquire the Software from Datacubist or Reseller.
2.1 Commercial Single User License. If You have acquired a Commercial Single User License by paying the applicable license fee to Datacubist or Reseller, You may install the Software on the local hard disk(s) or other permanent storage media of two (2) computers used by a single person and use the Software on one (1) computer or terminal at a time for commercial or non-commercial purposes. The Software may be subsequently transferred to another computer owned or controlled by You, provided, however, that the number of permitted installations is not exceeded. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your use and distribution of the Authorized Application(s) complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3.
2.2 Commercial Network License. If You have acquired a Commercial Network License by paying the applicable license fee to Datacubist or Reseller, You may install the Software on the local hard disk(s) or other permanent storage media of any number of computers and use the Software on one (1) computer or terminal at a time for commercial or non-commercial purposes. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your use and distribution of the Authorized Application(s) complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3.
2.3 Non-Commercial Single Computer License. If You have acquired a Commercial Single Computer License by paying the applicable license fee to Datacubist or Reseller, You may install the Software on the local hard disk(s) or other permanent storage media of one (1) computer and use the Software only for educational instructional, personal learning, academic research or other non-commercial purposes specified by Datacubist or Reseller. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your use and distribution of the Authorized Application(s) complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3.
2.4 Evaluation License. If You have acquired an Evaluation License, You may install the Software on the local hard disk(s) or other permanent storage media of two (2) computers and use the Software on one (1) computer or terminal at a time only for evaluation and demonstration purposes. The Software may be subsequently transferred to another computer owned or controlled by You, provided, however, that the number of permitted installations is not exceeded. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your distribution of Authorized Applications complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3. Under an Evaluation License, the Software may only be installed and used for a single thirty (30) day period from the date that the Software is first installed, unless such period is extended at Datacubist’s discretion (“Evaluation Period”). On the expiry of the Evaluation Period the Software may be deactivated or rendered unusable with or without warning. Prior to the expiry of the Evaluation Period, You may acquire a Commercial License by paying the applicable license fee to Datacubist or Reseller, which will allow You to continue using the Software pursuant to the terms of the Commercial License. You acknowledge that Datacubist may, in its sole discretion and upon notice to You, terminate the Evaluation License at any time, whereupon this Agreement will be considered terminated.
2.5 Non-Commercial Time Limited Single User License. If You have acquired a Non-Commercial Time Limited License, You may install the Software on the local hard disk(s) or other permanent storage media of two (2) computers and use the Software on one (1) computer or terminal at a time only for educational instructional, personal learning, academic research or other non-commercial purposes specified by Datacubist or Reseller. The Software may be subsequently transferred to another computer owned or controlled by You, provided however, that the number of permitted installations is not exceeded. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your distribution of Authorized Applications complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3. Under a Non-Commercial Time Limited Single User License, the Software may only be installed and used for a limited fixed period of time specified by Datacubist or Reseller (“Non-Commercial Usage Period”). On the expiry of the Non-Commercial Usage Period the Software may be deactivated or rendered unusable with or without warning. You acknowledge that Datacubist may, in its sole discretion and upon notice to You, terminate the Non-Commercial License at any time, whereupon this Agreement will be considered terminated.
2.6 Non-Commercial Single User License. If You have acquired a Non-Commercial License, You may install the Software on the local hard disk(s) or other permanent storage media of one (1) computer and use the Software on one (1) computer or terminal at a time only for educational instructional, personal learning, academic research or other non-commercial purposes specified by Datacubist or Reseller. The Software may be subsequently transferred to another computer owned or controlled by You, provided however, that the number of permitted installations is not exceeded. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your distribution of Authorized Applications complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3. You acknowledge that Datacubist may, in its sole discretion and upon notice to You, terminate the Non-Commercial License at any time, whereupon this Agreement will be considered terminated.
2.7 Non-Commercial Time Limited Network License. If You have acquired a Non-Commercial Time Limited License, You may install the Software on the local hard disk(s) or other permanent storage media any number of computers and use the Software on one (1) computer or terminal at a time only for educational instructional, personal learning, academic research or other non-commercial purposes specified by Datacubist or Reseller. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your distribution of Authorized Applications complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3. Under a Non-Commercial Time Limited Network License, the Software may only be installed and used for a limited fixed period of time specified by Datacubist or Reseller (“Non-Commercial Usage Period”). On the expiry of the Non-Commercial Usage Period the Software may be deactivated or rendered unusable with or without warning. You acknowledge that Datacubist may, in its sole discretion and upon notice to You, terminate the Non-Commercial License at any time, whereupon this Agreement will be considered terminated.
2.8 Non-Commercial Network License. If You have acquired a Non-Commercial Network License, You may install the Software on the local hard disk(s) or other permanent storage media any number of computers and use the Software on one (1) computer or terminal at a time only for educational instructional, personal learning, academic research or other non-commercial purposes specified by Datacubist or Reseller. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your distribution of Authorized Applications complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3. You acknowledge that Datacubist may, in its sole discretion and upon notice to You, terminate the Non-Commercial License at any time, whereupon this Agreement will be considered terminated.
2.9 Commercial Rental Single User License. If You have acquired a Commercial Rental Single User License by paying the applicable license fee to Datacubist or Reseller, You may install the Software on the local hard disk(s) or other permanent storage media of two (2) computers used by a single person and use the Software on one (1) computer or terminal at a time for commercial or non-commercial purposes for the duration of the Rental Period. The Software may be subsequently transferred to another computer owned or controlled by You, provided, however, that the number of permitted installations is not exceeded. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your use and distribution of the Authorized Application(s) complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3.
2.10 Commercial Rental Network License. If You have acquired a Commercial Rental Network License by paying the applicable license fee to Datacubist or Reseller, You may install the Software on the local hard disk(s) or other permanent storage media of any number of computers and use the Software on one (1) computer or terminal at a time for commercial or non-commercial purposes for the duration of the Rental Period. You may use the API to create Authorized Applications that You may use and distribute, provided that (i) each computer on which the Authorized Application will be used on has valid license for the Software; and (ii) Your use and distribution of the Authorized Application(s) complies with all the terms and conditions in this Agreement, including those regarding distribution of Authorized Applications in Sections 3.1 through 3.3.
3. RESTRICTIONS
3.1 You may not (a) reverse engineer, reverse compile, disassemble or otherwise attempt to discover the source code of the Software (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on the Software (b) resell, rent, sublicense, lease or lend the Software; (c) use, copy, modify, translate, arrange, reproduce or transfer all or any portion of the Software or distribute or publish applications created with Software except as expressly provided in this Agreement; (d) directly or indirectly access or use any Third Party Components independently of the rest of the Software; (e) remove, alter, or obscure any copyright, patent, trademark, or other legal notices or disclaimers that exist in the Software; (f) install all or any portion of the Software on a network where it can be used on multiple computers at the same time; (g) use the Software in an attempt to, or in conjunction with, any device, software or service designed to circumvent or remove any form of copy protection mechanisms embedded in the Software employed to manage and protect the intellectual property rights of Datacubist and its licensors. Further, all uses of the Software shall be in accordance with the applicable User Documentation and not in any manner having the effect, or intended to, circumvent such documentation or the intent of this Agreement.
3.2 You agree that You shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which You use the Software including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
3.3 In addition to the other terms and conditions of this Agreement and the applicable User Documentation, You agree that Your use of the API and Your distribution of Authorized Applications complies with each of the following requirements:
(a) You must possess a validly licensed copy of the Software to be able to create, use and distribute Authorized Applications;
(b) You may solely use the API in the creation of Authorized Applications with the Software, and You may not directly use any other components of the Software, including Third Party Components. Applications that are created using any other portion of the Software than the API are not Authorized Applications;
(c) The applications that may be created with the API must be applications that can be run exclusively when interfaced with the Software and must add primary value added functionality and/or enhancements to the Software. Any applications that can be run independently of a license for the Software and/or affect adversely the full functionality of the Software are not Authorized Applications and may not be created, used or distributed;
(d) You may not create applications that embed any elements of the Software;
(e) You may not create installation programs that install both the Software and the Authorized Application that You may have created;
(f) You may not use Datacubist’s and/or its licensors’ names, logos, or trademarks to market Your Authorized Application without Datacubist’s express written permission;
(g) Your Authorized Application may not in any way remove or alter any copyright, trademark or other proprietary rights notice of Datacubist and/or its licensors contained in any portion of the Software; and
(h) You agree to indemnify, hold harmless, and defend Datacubist from and against any claims or lawsuits, including attorneys’ fees, which arise or result from the use or distribution of Your Authorized Application.
4. THIRD PARTY COMPONENTS
You acknowledge that the Software contains Third Party Components and that in addition to the terms and conditions of this Agreement, additional obligations may apply in relation to any use of Third Party Components, which is not in accordance with the use of the Software as permitted under this Agreement. In such circumstances You must consult the relevant third party to acquire any necessary licenses and consents in relation to Your use of the Third Party Components. You may not link or embed these Third Party Components into your software code. The Software will load these Third Party Components, and you may use only the functionality of these Third Party Components that is accessible through the API. Any use of Third Party Components independently of the other components of the Software is expressly prohibited.
5. TERM AND TERMINATION
5.1 License Term for Perpetual Licenses. Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, licenses specified in Sections 2.1, 2.2, 2.3, 2.6 and 2.8 are perpetual.
5.2 License Term for Evaluation License. Evaluation License will terminate automatically at the end of the Evaluation Period.
5.3 License Term for Non-Commercial Time Limited License. Licenses specified in Sections 2.5 and 2.7 will terminate automatically at the end of the Non-Commercial Usage Period.
5.4 License Term for Rental License. For Commercial Rental License this Agreement is valid and remains in force for the duration of the Rental Period. The Rental Period shall be automatically renewed for 1 year at a time unless expressly otherwise agreed, or unless the Rental Period is terminated with a written notice to Datacubist prior to the expiration of the ongoing Rental Period.
5.5 Termination. With respect to any license type, Your rights to use the Software will terminate automatically or otherwise cease to be effective without notice from Datacubist if You fail to comply with any term(s) of this Agreement. You may terminate this Agreement at any time by permanently deleting, destroying and returning, at Your own cost, the Software, all backup copies and all related materials provided by Datacubist or Reseller.
5.6 Effects of Termination. Upon termination this Agreement, You must immediately cease all use of the Software and all use and distribution of Authorized Applications, and immediately delete, destroy or return at Your own cost, the Software, all backup copies and all related material to Datacubist. Datacubist reserves the right to require You to show satisfactory proof that all copies of the Software have been uninstalled and the Software, all backup copies and all related material have been destroyed or returned. Sections 3, 4, 5, 6, 7 and 9 through 13 shall survive any expiration or termination of this Agreement.
6. COPYRIGHT AND RESERVATION OF OWNERSHIP
The Software and all rights, without limitation including proprietary rights therein, are owned by Datacubist and/or its licensors and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Datacubist and/or its licensors and You shall keep such trade secrets and confidential information confidential. You must treat the Software like any other copyrighted material. You may, however, make a reasonable number of copies of the Software solely for backup or archival purposes, provided such backup copies are not used for any other purpose than to replace the original copy in the event that it is destroyed or damaged. In no event, may You remove or alter any copyright, trademark, or other legal or proprietary notices of Datacubist and/or its licensors that exist in the Software. All rights not expressly granted to You in this Agreement are reserved to Datacubist and its licensors. The Software is licensed, not sold, and You do not acquire any rights of ownership in the Software.
7. TRADEMARK NOTICE
DATACUBIST and SIMPLEBIM are trademarks of Datacubist Oy. Further, all other product and company names that may be mentioned in the User Documentation are (or may be) trademarks or trade names of their respective companies.
8. SUPPORT AND MAINTENANCE
8.1 The Software contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Datacubist or a third party authorized by Datacubist may automatically check the version of the Software and/or its components that You are utilizing and may provide supplemental software and fixes to the Software (that are not Upgrades) that will be automatically downloaded to Your computer.
8.2 The supplemental software described in section 8.1, which You may be provided after the date You have obtained the initial copy of the Software, shall be subject to the terms and conditions of this Agreement, unless otherwise specified at the time of delivery by Datacubist or such third party.
8.3 Any supplemental software or support service is provided solely at the discretion of Datacubist. Datacubist has, however, no obligation to provide You with such support or supplemental software or any other maintenance, technical or other support for the Software unless separately agreed in writing between You and Datacubist.
9. EXCLUSION OF WARRANTIES
THE SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER DATACUBIST, ITS LICENSORS OR AFFILIATES OR RESELLERS NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY DATACUBIST OR BY ANY OTHER PARTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DATACUBIST, ITS EMPLOYEES OR LICENSORS OR AFFILIATES OR RESELLERS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF DATACUBIST, ITS LICENSORS OR AFFILIATES OR RESELLERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Because some countries/states/jurisdictions do not allow the exclusion or limitation of liability, but may allow liability to be limited, in such cases, Datacubist’s, its employees’ or licensors’ or affiliates’ or resellers’ liability shall be limited to the amount paid by you for the Software.
Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer. Nothing contained in this Agreement limits Datacubist’s liability to You in the event of death or personal injury resulting from Datacubist’s negligence. Datacubist is acting on behalf of its employees, licensors, affiliates and Resellers for the purpose of disclaiming, excluding and/or restricting obligations, warranties and liability as provided in this Section 10, but in no other respects and for no other purpose.
11. EXPORT CONTROLS
You are specifically advised and acknowledge that the Software may be subject to import or export control laws and regulations. You agree to comply strictly with all applicable import and export regulations and acknowledge that You have the responsibility to obtain licenses and/or governmental approvals required by applicable laws to export, re-export, transfer or import the Software.
12. NOTICES
All notices and return of the Software and User Documentation should be delivered to:
Datacubist Oy
Finlaysoninkuja 9
FI-33210 Tampere
Finland
13. APPLICABLE LAW AND GENERAL PROVISIONS
This Agreement is governed by the laws of Finland without regard to the conflict of law principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising from or relating to this Agreement shall be settled exclusively by a single arbitrator appointed by the Central Chamber of Commerce of Finland. The arbitration procedure shall take place in Helsinki, Finland in the English language.
This is the entire agreement between Datacubist and You relating to the Software and it supersedes any prior representations, discussions, undertakings, end user agreements, communications or advertising with respect to the Software. If any provision of this Agreement is found void, invalid or unenforceable in whole or in part under applicable law, it will not affect the validity of the rest of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be amended by a writing signed by an authorized officer of Datacubist, although Datacubist may vary the terms of this Agreement.