PRE-RELEASE PRODUCTS AGREEMENT
READ CAREFULLY: Autodesk, Inc. ("Autodesk") licenses THIS software to you only upon the condition that you accept all of the terms contained in this PRE-RELEASE PRODUCTS Agreement ("AGREEMENT") BY SELECTING The "I ACCEPT" button below this Agreement OR by copying, installing, uploading, accessing or USING ALL OR ANY PORTION OF THE SOFTWARE accompanied by this agreement, you agree to be legally bound by this Agreement. A contract is then formed between Autodesk and either you personally, if you acquire the Software for yourself, or the company or other legal entity for which you are acquiring the SOFTWARE, AS DEFINED BELOW. IF YOU do not agree or do not wish to bind yourself or the entity you represent: (a) do not copy, install, upload, access or use the Software; and, (B) if buttons for accepting or rejecting the software appear, SELECT the "I reject" button and CANCEL THE LOADING OF THE SOFTWARE. INSTALLATION, UPLOADING, ACCESSING OR OTHER COPYING OR OTHER USE OF THIS SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION OR MATERIALS EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH SOFTWARE AND DOCUMENTATION. IF YOU INSTALL, UPLOAD, ACCESS, COPY OR USE ALL OR ANY PORTION OF THIS SOFTWARE OR ITS USER DOCUMENTATION WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF AUTODESK OR FAILS TO COMPLY WITH THIS AGREEMENT, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. YOU MAY BE LIABLE TO AUTODESK AND ITS LICENSORS FOR DAMAGES, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES. WHEREAS, Autodesk is willing to supply to you ("Tester", as defined below) certain Pre-Release Products (as defined below) on the terms and conditions contained in this Agreement; WHEREAS, Tester desires to have access to the Pre-Release Products solely for the uses identified below and is aware of the experimental and untested nature of the Pre-Release Products;
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
In addition to the terms defined elsewhere in this Agreement, the following terms, when used herein, shall have the following meanings:
1.1 "Feedback" shall mean all suggestions, comments, input, ideas, reports, information or know-how (whether in oral or written form) provided by Tester to Autodesk or an Autodesk affiliate in connection with Tester’s evaluation of or use of the Pre-Release Products. Feedback does not include any artwork or sample content created by Tester using the Pre-Release products.
1.2 "Pre-Release Products" shall mean the pre-release versions of the Autodesk products, concepts and/or technology downloaded by Tester (including without limitation products and technology downloaded through Autodesk Labs or on Autodesk.com) or otherwise provided or made available by Autodesk to Tester, including without limitation the specifications therefore and all versions thereof, whether labeled alpha, beta, pre-release, technology preview or otherwise. Pre-Release Products also include any documentation, updates, upgrades, bug fixes or enhancements to such products and/or technology, software code and/or related pre-release hardware devices which Autodesk, in its sole discretion, may choose to provide to Tester, and all content and other materials, marketing materials and marketing and business plans and other information and documents related thereto, no matter how obtained by Tester.
1.3 "Tester" shall mean you personally (i.e., the individual who reads and is prompted to accept this Agreement) if you acquire the Pre-Release Products for yourself or the company or other legal entity for whom you acquire the Pre-Release Products.
LICENSE TO TESTER
2.1 Grant of License-Testing and Evaluation. Subject to the terms of this Agreement, Autodesk hereby grants Tester, under all of Autodesk’s intellectual property and proprietary rights, a non-exclusive, personal, limited, non-assignable, non-sublicensable, royalty free license to use the Pre-Release Product(s) at Tester’s location, solely for the purposes of evaluating and testing the Pre-Release Product. Except as otherwise explicitly permitted by Autodesk, Tester may not install or access the Pre-Release Products other than on one (1) computer at a time. The Pre-Release Products are licensed solely for use within the country in which Tester acquires the Pre-Release Products ("Territory"), unless (i) Tester acquire the Pre-Release Products in a member country of the European Union or the European Free Trade Association, in which the case "Territory" means all the countries of the European Union and the European Free Trade Association; or (ii) otherwise specified by Autodesk. Without limitation of Sections 5 or 6 below, Tester acknowledges that the license granted in this Section 2.1 is conditioned upon Tester’s acknowledgement that the Pre-Release Products have not been fully tested. Without limiting the foregoing, Tester may not use the Pre-Release Products for competitive analysis, or commercial, professional, or other for-profit purposes.
2.2 License Restrictions.
2.2.1 Transfers. Tester may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Pre-Release Products, or any rights granted in this Agreement, to any other person or legal entity without the prior written consent of Autodesk.
2.2.2 Notices. Tester may not remove, alter, or obscure any proprietary notices, labels, or marks from or on the Pre-Release Products.
2.2.3 Modifications. Tester may not modify, translate, adapt, arrange, or create derivative works based on the Pre-Release Products for any purpose.
2.2.4 Reverse Engineering. Tester will not reverse engineer or disassemble the Pre-Release Products or permit any third party to do so.
188.8.131.52 Tester will not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Autodesk in connection with the Pre-Release Products, or use the Pre-Release Products together with any, authorization code, serial number, or other copy protection device not supplied by Autodesk directly or through an authorized distributor.
184.108.40.206 Tester will not utilize any equipment, device, software or other means designed to circumvent or remove any usage restrictions, or to enable functionality disabled by Autodesk. Tester may not bypass or delete any functionality or technical limitations of the Pre-Release Products that prevent or inhibit the unauthorized copying or use.
2.3 Exceptions from Restrictions. The restrictions contained in Section 2.2 shall apply to the extent that applicable law (including laws implementing EC Directive 91/250 on the legal protection of computer programs) allows such restrictions to be enforced. Tester will bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such restriction.
Except as expressly licensed to Tester in Section 2.1, Autodesk retains all right, title and interest in and to all patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the design, manufacture, operation or service of the Pre-Release Products.
Tester hereby grants Autodesk, under all of Tester’s intellectual property and proprietary rights, the following worldwide, exclusive, transferable, perpetual, irrevocable, royalty-free, fully paid-up rights: (1) to make, have made, use, copy, modify, and create derivative works of the Feedback as part of or in connection with any Autodesk product, technology, service, content, material, specification or documentation (including without limitation in connection with the marketing or sale thereof); (2) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell and sell, rent, lease or lend copies of the Feedback (and derivative works thereof and improvements thereon); and (3) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.
Tester warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Tester has no knowledge of, and has not been put on notice of, any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Tester). Tester warrants that Tester’s Feedback is not subject to any license terms that would purport to require Autodesk to comply with any additional obligations with respect to any Autodesk Pre-Release Products that incorporate any Feedback. Tester warrants that it is not a competitor of Autodesk.
THE PRE-RELEASE PRODUCTS, CONFIDENTIAL INFORMATION AND ANY HARDWARE AND OTHER MATERIALS FURNISHED HEREUNDER ARE FURNISHED ON AN "AS IS" BASIS, AND AUTODESK AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. AUTODESK SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE PRODUCTS OR HARDWARE WILL MEET TESTER'S REQUIREMENTS; WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY TESTER; THAT THE OPERATION OF THE PRE-RELEASE PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED; OR THAT ALL ERRORS OR DEFECTS IN THE PRE-RELEASE PRODUCTS WILL BE CORRECTED. NEITHER AUTODESK NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING FROM OR RELATING TO Tester’s USE OR INABILITY TO USE PRE-RELEASE PRODUCTS OR HARDWARE.
TESTER EXPRESSLY ACKNOWLEDGES THAT THE PRE-RELEASE PRODUCTS HAVE NOT BEEN FULLY TESTED AND MAY CONTAIN DEFECTS OR DEFICIENCIES WHICH MAY NOT OR WILL NOT BE CORRECTED BY AUTODESK, THAT THE PRE-RELEASE PRODUCTS MAY UNDERGO SIGNIFICANT CHANGES PRIOR TO RELEASE OF THE CORRESPONDING GENERALLY AVAILABLE FINAL VERSION AND THAT THE GENERALLY AVAILABLE FINAL VERSION MAY NOT CONTAIN CERTAIN FEATURES OR FUNCTIONALITY THAT ARE CONTAINED IN THE VERSION OF THE PRE-RELEASE PRODUCTS LICENSED TO TESTER. NOTWITHSTANDING THE FOREGOING, AUTODESK SHALL HAVE NO OBLIGATION TO RELEASE ANY PRODUCT OR MAKE AVAILABLE ANY SERVICE BASED ON THE PRE-RELEASE PRODUCTS PROVIDED HEREUNDER.
LIMITATION OF LIABILITY
Tester agrees to indemnify and hold Autodesk harmless against any and all losses, liabilities, proceedings, claims, or damages, arising out of or in connection with this Agreement or Tester's use, performance, possession, and misuse, or removal, return or repossession by Autodesk of the Pre-Release Products furnished hereunder. Such indemnity shall survive termination of this Agreement and shall apply regardless of the form of legal action, whether in contract or in tort, including negligence.
IN NO EVENT SHALL AUTODESK OR ITS SUPPLIERS BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR SHALL AUTODESK BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE OR AN ACT OF A THIRD-PARTY OR OF NO FAULT ON ITS BEHALF. TESTER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, OR OTHERWISE, IS TO CEASE USE OF AND TO RETURN THE PRODUCTS TO AUTODESK.
TERM & TERMINATION
7.1 Term. This Agreement shall be effective from the earlier of (a) the date on which you clicked on the "I Accept" button or (b) the date on which you first installed or accessed a copy of the Pre-Release Products and shall continue until terminated pursuant to Section 7.2.
7.2 Termination. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically on the earlier of (a) the date identified for expiration or termination of the Pre-Release Products in materials distributed in connection with the Pre-Release Products or (b) at the end of the term identified in materials distributed in connection with the Pre-Release Products or, (c) if no date or term is specified, then on the earlier of the (i) first anniversary of the date on which you clicked on the "I Accept" button below; (ii) first anniversary of the date on which you first downloaded a copy of the Pre-Release Products; and (iii) commercial release (if any) of a product based on the Pre-Release Product (the "Term").
7.3 Cease Use; Return. Upon termination of this Agreement for any reason, Tester shall immediately (i) cease all use of the Pre-Release Products other tangible materials and devices and uninstall all copies of the Pre-Release Products; and (ii) destroy all Pre-Release Products and other tangible materials or, upon request by Autodesk, return all Pre-Release Products other tangible materials and devices to Autodesk. Autodesk reserves the right to require Tester to show satisfactory proof that all copies of the Pre-Release Products, other tangible materials and devices have been uninstalled and all Pre-Release Products have been destroyed.
7.4 Survival. Sections 1 (Definitions), 3 (Ownership), 4 (Feedback), 5 (Warranties), 6 (Limitation of Liability), 7.3 (Cease Use; Return) and 8 (General), shall survive termination of this Agreement for any reason.
8.1 No Reliance. Autodesk Pre-Release Products may concern planned or future development efforts for existing or new Autodesk products, technology and/or services. Pre-Release Products are not intended to be a promise or guarantee of future delivery of products, technology, services or features but merely reflect our current plans, which may change. Accordingly, Pre-Release Products may not be relied on for purchasing decisions or for any other purpose.
8.2 Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows:
To Tester: At the address provided on the registration information of Tester provided to Autodesk.
To Autodesk: 111 McInnis Parkway
San Rafael, CA 94903
Attention: General Counsel
Fax: (415) 507-6126
or to such other address as the party to receive the notice or request so designates by written notice to the other. NOTICE IS NOT DEEMED GIVEN UNLESS NOTICE TO AUTODESK’S GENERAL COUNSEL HAS BEEN GIVEN.
8.3 Governing Law/Jurisdiction/Attorneys’ Fees. This Agreement shall be construed and controlled by the laws of the State of California, and Tester consents to jurisdiction and venue in the federal courts sitting in San Francisco, California, unless no federal subject matter jurisdiction exists, in which case Tester consents to jurisdiction and venue in the Superior Court of Marin County, California. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Tester waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses.
8.4 Independent Contractors. The parties hereunder are operating as independent contractors, and nothing in this Agreement shall be construed as creating a partnership, franchise, joint venture, employer-employee or agency relationship.
8.5 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable.
8.6 Compliance. Tester shall comply with all export control laws of the United States, and refrain from exporting or re-exporting any Pre-Release Products or related technical information. Tester shall defend, indemnify, and hold Autodesk harmless from any claims, losses or damages to Autodesk arising out of Tester’s violation of any applicable laws or this Agreement.
8.7 Costs. Each party will be responsible for covering their respective costs and expenses in performing their duties under this Agreement, unless expressly provided otherwise in this Agreement.
8.8 Headings. The Section headings used in this Agreement are for convenience only and shall not be given any substantive effect.
8.9 Waiver. The failure of Autodesk to enforce at any time any provisions of this Agreement, or any rights in respect thereto, or to exercise any election herein provided, shall not be considered as a waiver of such provisions, rights, or elections with respect to subsequent events, or in any way to affect the validity and the enforceability of this Agreement.
8.11 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
8.12 Canadian License. If Tester acquired the license for the Pre-Release Products in Canada, Tester agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including Notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.