END-USER SOFTWARE LICENSE AGREEMENT FOR TEKLA SOFTWARE PRODUCTS
IMPORTANT: READ CAREFULLY:
THE TEKLA SOFTWARE PRODUCT IN WHICH THIS AGREEMENT IS EMBEDDED TOGETHER WITH ELECTRONIC AND PRINTED DOCUMENTATION (COLLECTIVELY, "SOFTWARE”) IS PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS AND INTERNATIONAL TREATIES. UNAUTHORIZED REPRODUCTION, DISPLAY, MODIFICATION, AND DISTRIBUTION OF THIS SOFTWARE, OR ANY PORTION OF IT, MAY RESULT IN CIVIL AND CRIMINAL LIABILITY, AND WILL BE PROSECUTED TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU HAVE TWO ALTERNATIVES TO ACCESS THIS SOFTWARE:
ALTERNATIVE 1: IF YOU HAVE ACQUIRED THE RIGHT TO USE THE SOFTWARE UNDER A CUSTOMER ORDER AND A SOFTWARE LICENSE AGREEMENT (“COSLA”) WITH EITHER TRIMBLE SOLUTIONS CORPORATION (“TRIMBLE”) OR AN AUTHORIZED RESELLER OF TRIMBLE, YOU ARE BOUND BY THE TERMS OF THE COSLA, AND ITS TERMS SHALL APPLY TO YOUR USE OF THE SOFTWARE; OR
ALTERNATIVE 2: IF YOU HAVE ACQUIRED THE SOFTWARE ONLINE FROM A WEB SERVICE PROVIDED BY TRIMBLE, YOU ARE ENTILED TO USE THE SOFTWARE ONLY SUBJECT TO THE TERMS OF THE END USER SOFTWARE LICENSE AGREEMENT (“EULA”) SET FORTH BELOW, WHICH SHALL CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AS AN INDIVIDUAL OR THE BUSINESS ENTITY OR ORGANIZATION REPRESENTED BY YOU (COLLECTIVELY “YOU”), AND TRIMBLE SOLUTIONS COPRORATION.
ANY OTHER DOWNLOADING, INSTALLATION, ACCESS, COPYING, OR OTHER USE OF THE SOFTWARE, ANY PART THEREOF, OR ANY ACCOMPANYING DOCUMENTATION IS UNAUTHORIZED AND CONSTITUTES AN INFRINGEMENT OF COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS OF TRIMBLE SOLUTIONS CORPORATION IN THE SOFTWARE AND DOCUMENTATION.
YOU WILL FIND INSTRUCTIONS REGARDING INSTALLATION IN THE DOCUMENTATION PROVIDED TO YOU.
PLEASE NOTE IN RESPECT OF ALTERNATIVE 2:
YOU SHALL BE RESPONSIBLE FOR USING YOUR OWN TEST DATA TO SATISFY YOURSELF OF THE QUALITY OF THE RESULTS AND OPERATION OF THE SOFTWARE, PRIOR TO COMMENCING USE OF THE SOFTWARE. TRIMBLE SHALL NOT BE LIABLE FOR NETWORK TRANSMISSIONS OF SOFTWARE THAT FAIL IN PART OR IN WHOLE, ARE LOST, OR ARE OTHERWISE COMPROMISED.
BY CLICKING THE "I ACCEPT" BUTTON: (I) YOU ACCEPT AND AGREE TO THE TERMS OF THE END USER SOFTWARE LICENSE AGREEMENT (“EULA”); (II) YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, AND (III) YOU FURTHER ACKNOWLEDGE THAT THIS EULA CONTAINS IMPORTANT OBLIGATIONS AND APPLICABLE LIMITATIONS AND RESTRICTIONS ON USE OF THE SOFTWARE. FURTHEREMORE, BY CLICKING THE "I ACCEPT" BUTTON, YOU ALSO AFFIRM THAT YOU ARE AN AUTHORIZED USER OF THIS SOFTWARE AND THAT YOUR INSTALLATION OF THE SOFTWARE IS LEGAL, AND PERMITTED UNDER THIS EULA. IF YOU DO NOT AGREE WITH THESE CONDITIONS, YOU MUST CLICK THE "CANCEL" BUTTON.
1 SOFTWARE DEFINITION, LICENSE TYPES AND LICENSE PARAMETERS
1.1 As used in this End-User Software License Agreement (“EULA”), the term “Software” means Trimble’s “TEKLA” software product in object code form, or any part thereof, and any and all printed, online and/or electronic documentation related thereto (hereinafter “Documentation), as well as any maintenance releases as may be supplied to You by Trimble from time to time pursuant to this EULA.
1.2 As used in this EULA, the “License Parameters” for each applicable License Type shall be as set forth below. For the purposes of the License Parameters:
“Subscription Period” means the term of validity of Your license subscription, as specified in Trimble’s confirmation of Your order for the Software, and as further set forth in Clause 1.6.
“Territory” means the country of Your residence or establishment, and
”Affiliate” means another entity controlled by or under common control with You, with "control" existing through a right to nominate or dismiss 50 % or more of the members of the board of directors of an entity, or persons performing equivalent functions, whether through ownership of shares entitling to 50 % or more of the number of votes represented at a general meeting of such entity, or otherwise, for so long as such control subsists and whether directly or indirectly.
1.3 The License Type for Your License to the Software and the Subscription Period are specified in Trimble’s confirmation of Your order for the Software.
1.4 The License Types specified in this Clause 1.4 are so-called floating licenses, which means that You must acquire one (1) license per each User that concurrently uses the Software to connect to Trimble’s Software server.
Commercial Domestic License
Use of Software: within the Territory for Your commercial purposes;
License Term: until expiry of the Subscription Period;
Users: You, and/or Your employees, and/or the employees of Your Affiliates, as applicable.
Commercial Enterprise License
Use of Software: worldwide for Your and Your Affiliates’ commercial purposes, as applicable;
License Term: until expiry of the Subscription Period;
Users: You, and/or Your employees, and/or the employees of Your Affiliates and Professional Consultants, as applicable.
Educational or Learning License
Use of Software: for Your educational purposes only in the Territory. Use for commercial purposes is explicitly excluded.
License Term: until expiry of the Subscription Period;
Users: You and/or Your enrolled students, as applicable.
Use of Software: only for purposes of technical or commercial evaluation or demonstration by You in the Territory. Use for commercial purposes is explicitly excluded;
License Term: thirty (30) calendar days;
Users: You and/or Your employees, as applicable.
1.5 The License Types specified in this Clause 1.5 are so-called single user licenses, which means that each acquired license will entitle one individual (1) User to install and use the Software.
Commercial Single User License
Use of Software: worldwide for Your and Your Affiliates’ commercial purposes, as applicable;
License Term: perpetual or until expiry of the Subscription Period, as applicable;
Users: You and/or Your employees, and/or the employees of Your Affiliates, as applicable.
1.6 The Subscription Period of a subscription-based License is either a fixed term, or “recurring”, as specified in Trimble’s confirmation of Your order for the Software. A fixed Subscription Period shall expire on the specified date. A recurring Subscription Period shall renew automatically for subsequent Subscription Periods equally long to the initial Subscription Period, until terminated either (i) by You or Trimble subject to a notice in writing issued no later than three (3) months prior to the end of the then-current Subscription Period, or (ii) subject to terms of Clause 6.
1.7 Subject to agreement with Trimble and payment of applicable fees, You may replace Your subscription-based license with a license for a perpetual License Term.
2 GRANT OF LICENSE
2.1 The Software is licensed, not sold by Trimble. Subject to the applicable License Parameters and Your compliance with the terms of this EULA, Trimble hereby grants You a non-exclusive, non-assignable, non-transferable (except to the extent as may be permitted by the License Parameters) and non-sublicensable license (“License”), to download, install and use, display and run the Software on a computer, including a workstation, terminal or other digital electronic device ("Equipment"), that fulfils the minimum configuration requirements set forth in the Documentation. Each License acquired by You shall permit one concurrent Connected User of the Software.
2.2 This Agreement supersedes all prior license agreements between the Parties pertaining to current or prior versions of the Software and any terms or conditions in any such prior agreement, currently in force and effect, which are inconsistent with the terms or conditions of this Agreement are hereby specifically agreed to be modified and conformed to this Agreement.
2.3 The Software and any and all patents, copyright and other intellectual property rights therein shall remain the property of Trimble and its licensors, as applicable.
2.4 The Software contains valuable trade secrets and confidential information of Trimble and/or its licensors, and You shall not, and Your shall ensure that the Affiliates and any person to whom You have granted access to the Software does not: (i) disclose any part of the Software to any third party, or (ii) allow any third party to use the Software, or (iii) allow any copies of the Software to leave Your or Your Affiliate's possession or control, except if otherwise expressly permitted by the Documentation.
2.5 You or, subject to the License Parameters, an Affiliate shall be entitled to make a reasonable number of backup copies of the Software for archival purposes only. Any such copy shall in all respects be subject to these Terms and Conditions and shall be deemed to form a part of the Software.
2.6 You shall ensure that any copy of the Software made pursuant to clause 2.5 includes original markings of Trimble's ownership of intellectual property rights (including copyright notices and the like) and statements that the software contains information confidential to Trimble. You shall comply with any directions of Trimble concerning the form and content of such markings and notices.
2.7 You shall not, and You shall ensure that the Affiliates do not:
copy the whole or any part of the Software, save to the extent permitted by Clause 2.5;
modify, enhance or merge the whole or any part of the Software with any other software or documentation;
assign, transfer (except to Affiliates subject to License Parameters), distribute, sell, lease, rent, sub‑license, charge or otherwise deal in or encumber the Software, nor make available the same to any third party, nor use the Software to provide service bureau or similar services to any third party;
adapt, translate, reverse engineer, decompile or disassemble the whole or any part of the Software, or to access the source code of the Software;
enable use of the Software by duplication through virtualization or comparable technology in a manner that would exceed the number of licenses purchased by You;
use the Software to develop other software, except programmed components or executables for Your own use which interact with the Software’s Open API (“Applications”).
develop Applications for third parties unless You or the Affiliate is a participant of Trimble’s Developer Program, except as permitted through the Trimble Online Service;
register or attempt to register, whether directly or indirectly, any trademarks, trade names, logotypes or other symbols of Trimble, or any confusingly similar marks, names or symbols, nor any Internet domain names containing any such trademarks, trade names or symbols.
2.8 Risk in the Software media and License key(s) (if any) shall pass to You on delivery. In the event that the Software media, or any equipment upon which the Software is installed, is lost or stolen, You shall notify Trimble thereof without undue delay, and Your License to use the Software, whether by way of back‑up copies or otherwise, shall be suspended until delivery of a replacement License Key (if any) in respect thereof.
2.9 When disposing of equipment in any manner whatsoever, You shall uninstall and remove and ensure that any Affiliates uninstall and remove the Software from such equipment prior to disposal, and take all other steps necessary to prevent the Software or any part thereof from coming into the possession of any third parties. A failure to do so shall be deemed to constitute breach of this EULA.
2.10 You shall promptly notify Trimble if You become aware of (i) any breach of confidentiality obligations regarding the Software, or (ii) any infringement (whether actual or alleged) of Trimble's intellectual property rights in the Software, or (iii) any unauthorised use of the Software by any person, and provide reasonable assistance to Trimble in connection with any suit or proceeding relating to such events.
3 AUDIT RIGHTS
3.1 Trimble may at any time conduct, or appoint an external auditor to audit Your compliance with the terms of this EULA (“Audit”). Trimble shall provide no less than five (5) days’ advance notice of such Audit, except where the Audit is conducted electronically in accordance with Clause 3.3 below.
3.2 In connection with the Audit, You shall grant reasonable assistance and cooperation and such access to premises, systems and materials as necessary to determine Your and the Affiliates compliance with this EULA.
3.3 Without prejudice to the foregoing, the Audit may also be conducted electronically utilizing the audit functionality of the Software, designed to enable Trimble to automatically monitor that the use of the Software complies with the terms of the License, and to detect and notify Trimble of installations and use of unlicensed or otherwise infringing copies of the Software. You expressly agree and consent to such monitoring and reporting to Trimble.
3.4 If the Audit results determine that You or an Affiliate, as applicable, are not in compliance with the terms of the License, You shall immediately remedy such non-compliance, whether through purchase and payment for additional Licenses, or otherwise, and, without prejudice to any rights or remedies that may be available to the Trimble, compensate Trimble for reasonable costs of the Audit.
3.5 You shall keep, and require that any Affiliates keep, accurate accounts, documents and records in sufficient detail to enable Trimble to effectively exercise its rights under this Clause 3.
4 LIMITED WARRANTY
4.1 Trimble warrants that the Software will operate substantially in accordance with the Documentation for a period of ninety (90) days from delivery. Provided that You have notified Trimble of any errors or defects due to which the Software does not materially operate in accordance with the Documentation (“Error”), during such period, Trimble will repair the Error by providing You, at Trimble’s option and expense, either with instructions to bypass the Error, or a maintenance release.
4.2 The foregoing warranty shall not apply to, and Trimble shall not be liable for any Errors caused by or resulting from (i) Equipment, (ii) non-compliance with use requirements set forth in the Documentation or other incorrect use of the Software, (iii) any modification of Software by You or any third party, and (iv) any other acts or omission by You or a third party.
4.3 Subject to payment of applicable fees, You may purchase support and maintenance and services from Trimble. Please refer to the current Documentation for the content and availability of such services.
4.4 Neither the limited warranty provided by this EULA, nor any services offered by Trimble are available without proof of purchase or product registration from an authorized source.
5 INTELLECTUAL PROPERTY INFRINGEMENTS
5.1 In the event that Your use of the Software in accordance with this EULA infringes or is alleged to infringe a third party's intellectual property rights, Trimble may, at its sole option and expense, either:
procure for You the right to continue using the Software; or
replace the infringing Software or part thereof with functionally equivalent software; or
terminate this EULA and the License, and refund to You the license fee or balance thereof relating to the whole or the infringing part of the Software.
5.2 The foregoing Clause 5.1 sets forth Trimble’s sole obligations and Your sole and exclusive remedies in respect of any actual or alleged infringement of third party intellectual property rights arising out of any use of the Software.
6.1 This EULA enters into force when You either click the “I accept” button or indicate otherwise that You have read and agree to be bound by this EULA, and will remain in force until expiry of the License Term specified in Clause 1.2, unless terminated earlier in accordance with this Clause 6.
6.2 Either Trimble or You may terminate with immediate effect this EULA and the License granted hereunder if:
the other party is in material breach of any of its obligations and fails to remedy the same within thirty (30) days of written notice requiring such remedy; or
the other party (i) goes into liquidation, or (ii) any proceeding is instituted seeking to adjudicate the other Party as bankrupt or insolvent, or (iii) has a receiver appointed in respect of any of its assets, or (iv) if the other party is a partnership, if any of the partners in the partnership is adjudicated bankrupt or executes an assignment for the benefit of his/its or their creditors or otherwise compounded with his/its or their creditors, or (v) becomes subject to any similar act or process in any other jurisdiction, or (vi) becomes generally unable to pay its debts as and when they fall due.
6.3 Unauthorized use of the Software in breach of the terms of the License pursuant to this EULA shall always be deemed to constitute material breach of this EULA, and shall entitle Trimble to terminate this EULA and the license granted hereunder with immediate effect. Furthermore, the affected Party may terminate this EULA and the License granted hereunder pursuant to Clause 8.3.
6.4 Termination of this EULA shall be without prejudice to a party's accrued rights or other remedies available to a party. Following termination of this EULA, You shall forthwith return to Trimble the Software and all copies thereof, or delete the same and certify such deletion to Trimble in writing.
6.5 Termination of this EULA shall not affect the validity of any provision of this EULA which is expressly or by implication intended to remain in force after such termination.
7 EXCLUSION AND LIMITATION OF LIABILITY
EXCEPT FOR THE WARRANTIES SET FORTH IN CLAUSE 4, WHICH ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY TRIMBLE TO YOU, AND SUBJECT TO MANDATORY PROVISIONS OF APPPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND TRIMBLE MAKES NO OTHER EXPRESS WARRANTIES OR REPRESENTATIONS IN RELATION TO THE SOFTWARE OR THE DOCUMENTATION, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUYTE OR USAGE OF TRADE. IN PARTICULAR, TRIMBLE DOES NOT WARRANT THAT THE SOFTWARE WILL:
BE SUITABLE FOR THE USE INTENDED BY YOU;
OPERATE IN AN UNINTERRUPTED OR ERROR FREE MANNER, OR THAT TRIMBLE OR ANY THIRD PARTY WILL CORRECT ANY ERRORS, OR RESOLVE ANY SUPPORT REQUESTS RELATING TO THE SOFTWARE;
INTERACT WITH SOFTWARE PRODUCTS OTHER THAN THOSE SPECIFIED IN THE DOCUMENTATION; OR
OPERATE WITH HARDWARE OR HARDWARE CONFIGURATIONS OTHER THAN MEETING THE MINIMUM REQUIREMENTS SET FORTH IN THE DOCUMENTATION.
NOTHING IN THE FOREGOING SHALL OPERATE TO RESTRICT THE EFFECT OF WARRANTIES OR CONDITIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED DUE TO MANDATORY PROVISIONS OF APPLICABLE LAW.
7.1 TRIMBLE DISCLAIMS:
LIABILITY IN RESPECT OF ANY LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF PRODUCTION, LOSS OF DATA OR LOSS OF USE, AND ANY TYPE OF INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS AND DAMAGES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY OR STRICT LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY, EXISTENCE OR NATURE OF SUCH DAMAGES; AND
LIABILITY FOR DAMAGES OF ANY KIND ARISING FROM NUCLEAR, SPACE OR AVIATION ACTIVITIES; AND
LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE APPLICATIONS DEVELOPED BY YOU OR YOUR AFFILIATES, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHERWISE.
7.2 MAXIMUM MONETARY LIABILITY OF TRIMBLE UNDER THIS EULA SHALL BE LIMITED TO, AND SHALL NOT EXCEED, AN AMOUNT CORRESPONDING TO THE AGGREGATE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER.
7.3 THIS CLAUSE 7 SHALL SURVIVE THE EXPIRY OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.
8.1 You shall:
Ensure that the persons operating or supervising the operation of Software are adequately qualified persons;
Verify and test that the results of any calculations including, without limitation, any and all items designed by using the Software and data processing carried out by the Software are correct and accurate, and that they are verified as correct by an appropriately qualified person or, where appropriate, a qualified civil/structural engineer.
8.2 You undertake not to use Tekla, Tekla BIMsight or any other trademarks of Trimble, or any part thereof, whether alone or in combination with any other mark or device or any marks confusingly similar thereto, except with the express authority of Trimble and in accordance with Trimble’s instructions.
8.3 The conditions, validity and performance of ythis EULA shall be governed by and construed in accordance with the laws of Finland, and the parties hereby agree to submit to the exclusive jurisdiction of a Court of competent jurisdiction in Finland. In case You consider this EULA or any provision of this EULA to be invalid or unenforceable due to mandatory provisions of applicable law, You shall inform Trimble thereof forthwith.
8.4 If any provision of this EULA shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provisions of this EULA and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute any invalid or unenforceable provision referred to above with a valid or enforceable provision which achieves the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision. If the parties are unable to agree upon substitute provision(s) referred to above, and the invalid or unenforceable provision(s) deprive(s) either Party from a substantial benefit originally envisaged by it, the affected Party has the right to terminate this EULA in accordance with Clause 6.3.
8.5 Without prejudice to Your right to allow Your Affiliate(s) to use the Software within the applicable License Parameters, this EULA or any of Your rights and obligations hereunder are not capable of assignment, transfer, license or sublicense.
8.6 Neither party shall be liable for any delay in or failure to perform obligations if that delay or failure is caused by circumstances beyond such party’s control, including, without limitation, fires, strikes, insurrection, riots, embargoes, inability to obtain supplies, or regulations of any civil or military authority.
8.7 The waiver by either party of a breach or default of any of the provisions of this EULA shall not be construed as a waiver of any subsequent breach or default in respect of such provisions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
8.8 Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by pre-paid post, by fax, or other electronic means to the address of the receiving party, and any such notice or other document shall be deemed to have been served, if delivered by courier, at the time of delivery, or, if sent by mail, two (2) days after dispatch. Any notice or other document sent by fax transmission or other electronic means is deemed delivered upon receipt by the sender of an electronic acknowledgment.
8.9 You shall keep confidential all information (whether written or oral) concerning the business and affairs of Trimble that You have obtained or received as a result of entering into this EULA (“Confidential Information”), and You shall not, and You shall ensure that Your Affiliates do not, disclose such Confidential Information to any third party, except on a strictly need-to-know basis to Your or Your Affiliates’ employees, agents and subcontractors. The foregoing obligation shall not apply in respect of Confidential Information that is:
already in Your possession other than as a result of a breach of this Clause 8.8; or
in the public domain other than as a result of a breach of this Clause 8.8.
8.10 Notwithstanding the foregoing, You shall be entitled to disclose Confidential Information, where such disclosure is required pursuant to law, decree or order issued by competent authorities, or juridical order provided that You shall (i) only disclose such portion of the Confidential Information that is so required, (ii) inform the recipient of the Confidential Information that the information released is confidential and, where applicable, use reasonable endeavours to ensure that the information is kept confidential by such recipient, and (iii) promptly notify Trimble of such release of Confidential Information, specifying the information disclosed, the recipient of the information, and the circumstances giving rise to the duty to disclose it.
8.11 You shall take such steps as shall from time to time be necessary to ensure compliance with the provisions of Clause 8.8 by Your employees, agents and sub-contractors, and those of Your Affiliates.
8.12 The Software or parts of the Software may be subject to embargo and export control restrictions. You shall comply with all applicable embargo and export control laws and regulations and in particular those of the United States and European Union, in force from time to time.