This GRAITEC End User License Agreement applies to all software products that are part of the GRAITEC Solutions, licensed to customers (Customers) upon their installation. By installing and using the GRAITEC Solution Customer acknowledges acceptance of these terms.
1. Use Rights
GRAITEC grants Customer the non-exclusive and non-transferable right to use the GRAITEC Solutions, subject to Customer compliance with these terms and any other terms in the related GRAITEC quotes and any other documentation as well as Customer good standing on payment to GRAITEC. Customer can obtain the right to use not only GRAITEC Solutions but also updates and new versions by placing a new order with GRAITEC, or by subscribing to continuous and non-interrupted software maintenance or under the rules governing subscription. Customers may obtain GRAITEC Solution updates only from Graitec. Customer acquires no other right in respect to GRAITEC Solutions.
Customer is granted a license for the specific GRAITEC Solutions acquired. Each license is granted under perpetual, subscription or SaaS (Software-as-a-service) basis, as the case may be, and for a given number of licenses or users not to be exceeded, as indicated on the GRAITEC order, invoice, or similar document. In no circumstances should the Customer allow third parties access to the GRAITEC Solutions, even free of charge. GRAITEC Solutions may not be sold, transferred, leased, rented or distributed to other parties. In the event of the sale of the business, a takeover or any other transaction which involves the license-holder’s assets being transferred to a third party by operation of the law, GRAITEC written consent must be obtained, which will not be unreasonably withheld, prior to the transfer of the licenses, and only to the extent that the subsequent Customer abides to these terms.
Fair Usage Data and Limitations. Certain GRAITEC Solutions may be subject to specific restrictions such as data limitations and additional fees will apply in the event the Customer exceeds the fair usage data and limitations, as set forth in the related GRAITEC quote, order or invoice, as the case may be.
2. License Restrictions
Customer acknowledges that GRAITEC Solutions, and their structure, organization, interfaces, object code and source code are GRAITEC’s intellectual property that customer agrees to use them according to these terms and treat them confidentially. Customer shall not, nor shall the Customer permit any third party to: (a) modify, adapt, alter, translate, or create derivative works of the GRAITEC Solutions or the Documentation; (b) merge the GRAITEC Solutions with other software, other than as described in the GRAITEC Solutions documentation or as approved in writing by GRAITEC; (c) sublicense, distribute, sell, use, provide services for, grant usage via virtualization or similar technologies including but not limited to service bureau, use concurrently, lease, rent, loan or otherwise transfer the GRAITEC Solutions or documentation to any third party; (d) reverse engineer, decompile, disassemble, or attempt to derive the source code for the GRAITEC Solutions; (e) expose or disclose GRAITEC’s application program interface (API), direct interface or any other of the internal interfaces of the GRAITEC Solution to any sub distributor, end user or other third party; or (f) otherwise copy the GRAITEC Solutions or the software documentation (other than for backup purposes) (g) permit any party to develop and sell or license any extension to GRAITEC Solutions which directly or indirectly invokes any part of the GRAITEC Solutions (h) when using Internet-based features you may not use those features in any way that could interfere with anyone else’s use of them, or to try to gain access to or use any service, data, account, or network, in an unauthorized manner.
3. Intellectual Property Rights
The GRAITEC Solutions, including but not limited to their respective documentation, source and object code, API and Activation Codes logos and any and all intellectual property rights to each of the foregoing, are the exclusive property of GRAITEC and GRAITEC’s licensors. Any rights not expressly granted to the Customer in this license terms are reserved by GRAITEC and its licensors.
Customer breach of GRAITEC’s intellectual property may result in copyright infringement, be severely sanctioned by criminal law, as the case may be, and cause irreparable damages to GRAITEC. The customer agrees to, in addition to any damages and attorney fees awarded by competent courts, pay liquidated damages for up to €50,000 per infringement in the event of non-authorized usage or distribution of GRAITEC Solutions.
Customer usage of licenses for internal purposes beyond the authorized number of licenses specified in the license entitlement, such as the GRAITEC invoice, may result in suspension or termination. Customer regularization of its situation will require the payment of the additional licenses at 135% of GRAITEC’s price list, plus any damages covering past usage and others and expenses such as audit costs and attorney fees, as the case may be.
4. Export controls. GRAITEC Solutions is subject to export control laws in the EU and the US and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledge that it has the responsibility to obtain such licenses to export, re-export, or import, as may be required after delivery to Customer.
5. Not For Resale (NFR) licenses. NFR Licenses are governed under the applicable terms herein and may be solely used for demonstration, evaluation and educational purposes, to the exclusion of any production, resale or for-profit generation usage. Any breach of said license limitations is considered material and may result in termination and payment of liquidated damages and any other damage by Customer as stipulated in the “Intellectual Property” clause of these terms.
If further to an NFR usage Customer wishes to use the GRAITEC Solutions for production, Customer needs to acquire the related number of licenses. Educational licenses may only be used by entities whose main activity is education as dully evidenced to GRAITEC.
6. Professional responsibility
Customer acknowledges and agrees that while GRAITEC Solutions are intended to improve user experience and functionalities Customer is responsible for achieving its intended purpose and usage of the GRAITEC Solutions is at Customer’s sole risk on an “as is” basis (except for the limited warranties herein) and the fact that the GRAITEC Solutions may not fit the specific Customer purpose and may not be error free.
The Customer must verify that their hardware and software configuration meet the system requirements needed to install and use the licensed GRAITEC Solution. This information is available on the web site www.GRAITEC.com, and other documentation such as the installation guide. Customer acknowledges that the operating system requirements and that hardware and software configurations with regards to the GRAITEC Solutions may change from time to time and Customer must check the hardware and software prerequisites for subsequent GRAITEC Solution updates.
Customer must ensure it is (i) utilizing the latest GRAITEC Solution update (ii) that the technical environment in which the GRAITEC solution is based does not cause any malfunctions (iii) that any material configuration including physical elements is fully tested by Customer and compatible with the GRAITEC Solutions, including but not limited to the computer network, the configuration of the machines linked to the system, the wireless communication systems, the hardware elements and the operating system, as the case may be.
GRAITEC Solutions are designed to facilitate or accelerate the resolution of common technical problems encountered by construction, engineering and architectural professionals. Customer acknowledges that:
7. Installation at the Customer’s expense
Customer must install the GRAITEC Solutions and ensure Customer devices are compliant and compatible, with GRAITEC Solution and its licensors requirements. Installation services may be available from time to time and be invoiced separately, subject to applicable GRAITEC terms. GRAITEC assumes no responsibility for malfunctions on Customer devices.
8. Activating GRAITEC Solutions
a. Installation and Registration. Upon installation of the GRAITEC Solution, the Customer will be granted temporary access (“trial period”). Once the trial period is exceeded Customer must contact GRAITEC to obtain new licenses (usually including a Serial Number and an Activation Code). Unless the new license Activation Code is obtained, as set forth below, the operation of the GRAITEC Solution will timed-out and only GRAITEC will be able to reactivate it. Customers may install the GRAITEC Solution on the computer of their choice and are entitled to transfer the license from one computer to another subject to the requirements in these terms and the Graitec documentation setting forth the procedure which encompasses Customer’s prior deletion of the license transferred to the new device and ensuring at all times not to exceeding the authorized number of licenses.
License Activation Codes are GRAITEC’s confidential and proprietary information and sharing them with non-authorized third parties may compromise Customer security and license integrity. The Customer will not interfere with or attempt to disable the licensing mechanism in GRAITEC Solutions or to otherwise create a workaround to use any GRAITEC Solution unlicensed. It is strictly forbidden to use NFR licenses delivered for testing, training, and evaluation purposes for commercial or production activities.
To allow registration with Graitec, the Customer will be required to provide, upon the placement of the order, the identification of the users and the designation of the administrator, providing detailed information required by Graitec which may include Customer email addresses.
b. Change of hardware. If the Customer changes its hardware the GRAITEC license must be erased and returned to the Graitec server. It can be reinstalled on a new device, solely according to the procedure described in the GRAITEC Solution documentation.
c. Theft and Damage. If the hardware is stolen or damaged while the GRAITEC license was active on the computer, GRAITEC reserves the right to issue a new Activation Code upon prompt notice. Review of the police report, itemized description of the stolen equipment (hardware and software) and insurance declaration are required. Damaged Graitec licenses, may be replaced provided that Customer submits a formal affidavit signed on its letterhead by senior management, documenting the incident and attaching evidence of the damaged GRAITEC license, including insurance reports.
8. Training
GRAITEC recommends Customer to acquire training services prior to using the GRAITEC Solutions. GRAITEC may provide training under the terms and conditions, including fees, stipulated in GRAITEC’s quote or documentation. Regardless of whether Customer retains such induction training, Customer is expected to know how to operate the GRAITEC Solutions.
9. Setting parameters and programming
Customer can write computer programs to develop routines (“macros”) using GRAITEC's Solutions functionalities. Any such routines or specific parameters that the Customer may create must only be used within the Customer's own business including authorized subsidiaries. GRAITEC Solutions may include third party software licensed under separate terms, and GRAITEC does not grant any license rights, express or implied, to any APIs provided by GRAITEC’s licensors.
GRAITEC is not responsible for any malfunction arising from specific Customer settings. The customer is not permitted to transfer in any manner, including but not limited to giving, selling, lending, or making available the setting or parameters or the program created, to third parties.
10. Privacy and use of information
GRAITEC may obtain certain information and data (including, without limitation, personal data) through customer registration, support, various web forms or processes such as license activation, anti-piracy checks, software update or setup audit for technical or compliance purposes. By accepting these terms and using the Graitec Solutions you agree to Graitec collection of Customer’s Personal data which we may use to improve user experience and functionalities, detect, prevent and address fraud and software piracy, and to confirm genuine Graitec licensing, aimed to protect Customers, GRAITEC, and its licensors in furtherance of GRAITEC legitimate interests to protect its intellectual property and improve its products and services. Graitec will treat personal data according to GRAITEC Privacy Policy and in compliance with applicable regulation including the General Data Privacy Regulation.
11. Acceptable Use Policy
Customer may use GRAITEC Solutions as expressly permitted in this Terms and any GRAITEC quote and documentation provided to Customer and GRAITEC reserves all other rights. Customer may not use any GRAITEC Solution:
Without limiting other remedies, violation of the Acceptable Use Policy in this section may result in suspension of the license to use such GRAITEC Product upon Customer notice.
12. High Risk Use
Modern technologies may be used in new and innovative ways, and Customer must consider whether its specific use of these technologies is safe and meets Customer purpose. The GRAITEC Solutions are not designed or intended to support any use in which a service interruption, defect, error, or other failure of any GRAITEC Solution could result in the death serious bodily injury, structural or manufacturing material damages of any person or property including environmental damage (collectively, “High-Risk Use”). Accordingly, Customer must design and implement every application such that, in the event of any interruption, defect, error, or other failure of the GRAITEC Solution, the safety of people, property, and the environment are not reduced below a level that is reasonable, appropriate, and legal, whether in general or for a specific industry. Customer’s High-Risk Use of the GRAITEC Solutions is at its own risk. Customer agrees to defend, indemnify and hold GRAITEC harmless from and against all damages, costs and attorneys' fees in connection with any claims arising from a High-Risk Use, including any claims based in strict liability or that GRAITEC was negligent in designing or providing the Graitec Solutions to Customer. The foregoing indemnification obligation is in addition to any defense obligation set forth in other Graitec terms and is not subject to any limitation of, or exclusion from, liability contained in such terms.
13. GRAITEC CONFIDENTIAL INFORMATION
a Confidential Information means GRAITEC or its licensor’s non-public information that is either expressly identified in this contract as being Confidential Information or is conspicuously labeled as being a party’s Confidential Information. Confidential Information may be disclosed orally, in writing or electronically and may consist of software (including Source and Object Code and documentation), technical data, research, product plans, inventions, processes, designs, business plans, and marketing, financial or other non-public business information including the Activation Codes described in Section entitled “Activation Codes” of these terms.
b. Non-Disclosure. During the term of this contract and for a period of three (3) years thereafter, Customer agrees to protect Confidential Information and share it solely on a “need-to-know” basis within Customer’s organization and prevent any third-party access unless duly authorized by GRAITEC in writing and under terms as protective to GRAITEC as the ones in these terms. Upon reasonable request Customer will provide GRAITEC with written evidence of its compliance with this Section.
c. Exceptions. The nondisclosure and non-use obligations set forth herein shall not apply to information that Customer can demonstrate through competent written proof: (a) is already in its possession without any obligation of confidentiality at the time the information was received from the disclosing party, (b) is or becomes publicly available without breach of this section, (c) is independently developed by Customer without reference to any Confidential Information of the disclosing party, (d) is rightfully and legally received by Customer from a third party without an obligation of confidentiality, or (e) is released for disclosure with Graitec’s written consent. In addition, Customer may solely disclose Confidential Information if required by law or by the order of a court providing prompt written notice to GRAITEC prior to disclosure and minimizing to the maximum extent such disclosure.
14. Warranty
a. EXCEPTS AS OTHERWISE STATED IN THESE TERMS, The GRAITEC SolutionS ARE supplied on an “as is” basis, and GRAITEC DOES NOT WARRANT THAT errors MAY BE found. Customer MUST IMMEDIATELY notify GRAITEC with information necessary to trace the ERROR cause. GRAITEC warrants that the GRAITEC Solution will, for THIRTY (30) DAYS from activation by Customer FUNCTION SUBSTANTIALLY ACCORDING TO GRAITEC DOCUMENTATION. GRAITEC WILL correct the major errors discovered. GRAITEC cannot WARRANTY that the software is suitable for a particular PURPOSE OR THAT IT MEETS Customer NEEDS. The WARRANTY in this clause override all others.
ON site INTERVENTIONS DURING THE WARRANTY PERIOD MAY BE AVAILABLE FROM TIME TO TIME AND will be invoiced according to THE APPLICABLE price.
GRAITEC does not warrant FUNCTIONALITY AVAILABLE OVER THE INTERNET IN THE EVENT OF web outage. customer may use the respective internet connection only if customer has permission to do so.
B. Warranty disclaimer of GRAITEC’s licensor. GRAITEC disclaims all representations, warranties, or guarantees on behalf of its licensors including but not limited to Spatial Corp. and Spatial Corp.’s licensors. These terms confer certain rights and remedies upon GRAITEC’s licensors which may include third-party beneficiary provisions.
15. Suspension and Termination
GRAITEC reserves the right to suspend or terminate the Customer license by written notice in the event of lack of payment, intellectual property breach, Customer insolvency or bankruptcy leading to non-payment or other material breaches stipulated in Graitec terms including quotes and related contractual documentation.
16. Limitation of Liability
GRAITEC’s ENTIRE liability is limited to compensation for direct damages resulting from a proven fault. Indirect damages or loss are excluded, including but not limited to delays, loss of production, loss of data, loss of profits, financial costs, commercial loss, or action taken against the Customer by third parties. In any event, and to the maximum extent permitted by applicable law, GRAITEC’s liability will not exceed the license fee (minus any tax such as vat) of the GRAITEC Solution paid by the Customer for perpetual licensing or the subscription fee paid during the six preceding months.
17. Miscellaneous
a. Governing Law. These terms are governed by the laws applicable in the country where the GRAITEC licensor has its registered address and any dispute arising out of these terms will be decided by the courts located in such country.
b. Severability. The invalidity of any clause of the present contract does not invalidate the contract as a whole.
c. Entire Agreement. These terms (together with any quotes, printed terms or other terms accompanying any software supplements, upgrades, updates, and services that are provided by GRAITEC, and the terms contained in web links listed herein, are the entire agreement for the Graitec Solutions and any such supplements, updates, upgrades and services. We recommend that you have these terms handy at all times and save a copy. You understand that by using the GRAITEC Solutions, you ratify these terms and the linked terms.