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PLEASE READ THIS EULA CAREFULLY BEFORE ORDERING OR DOWNLOADING ANY SOFTWARE FROM THIS WEBSITE. YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSES 12 AND 13 WHERE WE LIMIT OUR LIABILITY TO USERS OF OUR SOFTWARE PRODUCTS.
IMPORTANT NOTICE TO ALL USERS: BY DOWNLOADING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
IMPORTANT NOTICE TO CONSUMERS: YOU HAVE THE RIGHT TO WITHDRAW FROM YOUR TRANSACTION WITHOUT CHARGE AND WITHOUT REASON AT ANY TIME BEFORE DOWNLOADING OUR PRODUCT(S). HOWEVER YOU WILL LOSE THIS RIGHT ONCE YOU BEGIN TO DOWNLOAD OUR PRODUCT(S). THIS DOES NOT AFFECT YOUR CONSUMER RIGHTS IN RELATION TO DEFECTIVE PRODUCTS OR SERVICES.
This END USER LICENSE AGREEMENT (this "EULA") is incorporated into the agreement between The Foundry Visionmongers Limited, a company registered in England and Wales, ("The Foundry"), and you, as either an individual or a single company or other legal entity ("Licensee") on the terms of which you will purchase the products and services of The Foundry (the “Agreement”).
1. GRANT OF LICENSE
1.1 Subject to the limitations of clause 3 and all the other terms of the Agreement, The Foundry grants to Licensee a limited, non-transferable (subject to clause 2.1 (b) below) and non-exclusive license to download, install and use a machine readable, object code version (subject to clause 4 below) of the software program identified in the Agreement (the "Software") and accompanying user guide and other documentation (the "Documentation"), solely for Licensee's own internal purposes (the "License"); provided, however, Licensee's right to download, install and use the Software and the Documentation is limited to those rights expressly set out in this EULA.
1.2 Some types of license in clause 2.1 limit the installation and use of the Software to the country in which Licensee is based at the date of purchase (the “Home Country”), unless otherwise agreed in writing. Notwithstanding such limits, Licensee may still use the Software outside the Home Country if traveling or working outside the Home Country on a temporary basis provided that such use does not exceed 70 days in aggregate in any rolling twelve month period or, in the case of a Licensee who has purchased a fixed term license for less than twelve months, does not exceed the number of days representing 20% of the term of the license.
1.3 Only to the extent that is proportionate to, and reasonably necessary to support, Licensee’s licensed use of the Software in accordance with the Agreement, Licensee may (provided valid license keys have been obtained) install the Software on more than one computer, provided always that Licensee’s concurrent use of different installations of the Software does not exceed the number of valid Licenses that Licensee has paid for.
2. LICENSE MODELS
2.1 For each product purchased, the License shall be one of the following types of license, and is subject to the following. Please note that some licensing models do not apply to certain products. Whichever licensing model applies, Licensee shall not at any one time use more copies of the Software than the total number of valid licenses purchased by Licensee.
(a)“Node Locked License”
If Licensee purchases a Node Locked License, Licensee shall install and use only a single copy of the Software on only one computer at a time, which may be located anywhere in the Home Country.
(b)“Individual License”
If Licensee purchases an Individual License, Licensee warrants and represents that Licensee is a natural person and that only Licensee shall use the Software. Licensee may assign the Individual License to another natural person (“Assignee”); subject to Licensee (i) notifying The Foundry and obtaining its express written consent, (ii) paying an administrative fee with respect to such transfer, and (iii) after transferring a single copy of the Software to the Assignee, deleting any copies of the Software that Licensee may have in Licensee’s possession, custody or power. An Individual License entitles Licensee to use the Software on only one computer at a time, which may be located anywhere and is not restricted to the Home Country.
(c)“Floating License”
If Licensee purchases a Floating License, use of the Software may be at any site in the Home Country.
2.2 Some of the Software may be made available at concessionary rates as follows:
(a) “Educational License”
If Licensee has purchased the Software on the discount terms offered by The Foundry’s Educational Policy published on its website (the “Educational Policy”), Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) (if Licensee is a natural person) he or she is a part-time or full-time student at the time of purchase and will not use the Software for any commercial, professional or for-profit purposes; (ii) (if the Licensee is not a natural person) it is an organization that will use the Software only for the purpose of training and instruction, and for no other purpose, and (iii) Licensee will at all times comply with the Educational Policy (as such policy may be amended from time to time). Unless the Educational License is a Floating License, Licensee shall use the Software on only one computer at a time.
(b)“Personal Learning Edition License”
If the Software is a Personal Learning Edition (“PLE”), it will not require a license key to be issued to Licensee and will have limited functionality as described in the Documentation. Licensee may use it only for the purpose of personal or internal training and instruction, and for no other purpose. PLE versions of the Software may not be used for commercial, professional or for-profit purposes including, for the avoidance of doubt, the purpose of providing training or instruction to third parties. Licensee shall use the Software on only one computer at a time.
(c) “MODO Steam Edition”
A version of MODO with limited functionality as described in the Documentation is available to purchase on discount terms through Valve Corporation’s Steam store. If Licensee has purchased such version, Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) Licensee is a natural person; and (ii) Licensee will use the Software strictly through Steam and only for personal, recreational and non-commercial use, except only that if Licensee uses the Software to create assets and content Licensee may sell such assets and content through Valve’s Steam Workshop.
(d) “MODO indie” and “MARI indie”
Variants of MODO and MARI with limited functionality as described in the Documentation are available to purchase on discount terms through Valve Corporation’s Steam store. If Licensee has purchased such a variant, Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) Licensee is a natural person; or (ii) Licensee is an entity in the direct ownership of a single natural person; (iii) Licensee shall only access and/or use one copy of either variant; and (iv) only Licensee shall use the Software.
(e)“Trial License”
Licensee may register for a “Trial License” of the Software (not available for all products or in all regions or markets). A Trial License lasts a limited specified period on the expiry of which the Software will automatically cease to function. Licensee shall use the Software on only one computer at a time.
(f)“Free License”
Licensee may register for a “Free License” of selected Software from The Foundry (not available for all products or in all regions or markets). A Free License lasts a limited specified period on the expiry of which the Software will cease to function; in normal circumstances a replacement to cover a new, time limited, period will be issued. Licensee shall use the Software on only one computer at a time.
2.3 If Licensee has purchased a License that permits “non-interactive” use of the Software (“Headless Rendering”), Licensee is authorized to use a non-interactive version of the Software for rendering purposes only (i.e. without a user, in a non-interactive capacity) and shall not use such Software on workstations or otherwise in a user-interactive capacity. Headless Rendering is not available on all products. In all cases except MODO (in respect of which there is no limit on the amount of Headless Rendering allowed), Headless Rendering licenses are limited to one computer such that the number of computers on which Headless Rendering can be carried out is limited to the number of valid Licenses that have been purchased.
3. RESTRICTIONS ON USE
Please note that in order to guard against unlicensed use of the Software a license key is required to access and enable the Software (other than Software which is licensed under the Personal Learning Edition model – see clause 2.2 (b) above). Licensee is authorized to use the Software in machine readable, object code form only (subject to clause 4), and Licensee shall not: (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this EULA; (b) alter or circumvent the license keys or other copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) (subject to clause 4) modify, adapt, translate or create derivative works based on the Software or Documentation; (d) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project") or to provide a service (whether or not any charge is made) to any third party; (e) allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation; (f) copy or install the Software or Documentation other than as expressly provided for in this EULA; or (g) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of The Foundry or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). For purposes of this clause 3, the term "Software" shall include any derivatives of the Software.
Unless Licensee has purchased an Individual License, if the Software is moved from one computer to another, the issuing of replacement or substituted license keys is subject to and strictly in accordance with The Foundry’s License Transfer Policy, which is available on The Foundry’s website and which requires a fee to be paid in certain circumstances. The Foundry may from time to time and at its sole discretion vary the terms and conditions of the License Transfer Policy.
4. SOURCE CODE
Notwithstanding that clause 1 defines “Software” as an object code version and that clause 3 provides that Licensee may use the Software in object code form only:
4.1 if The Foundry has agreed to license to Licensee (including by way of providing SDKs, upgrades, updates or enhancements/customization) source code or elements of the source code of the Software, the intellectual property rights in which belong either to The Foundry or to a Third Party Licensor (“Source Code”), Licensee shall be licensed to use the Source Code as Software on the terms of this EULA and: (a) notwithstanding clause 3 (c) Licensee may use the Source Code at its own risk in any reasonable way for the limited purpose of enhancing its use of the Software solely for its own internal business purposes and in all respects in accordance with this EULA; (b) Licensee shall in respect of the Source Code comply strictly with all other restrictions applying to its use of the Software under this EULA as well as any other restriction or instruction that is communicated to it by The Foundry at any time during the Agreement (whether imposed or requested by The Foundry or by any Third Party Licensor);
4.2 to the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to Licensee with the Software, nothing in the Agreement shall affect Licensee’s rights under the licenses on which the relevant Third Party Licensor has licensed the OSS Libraries, as stated in the Documentation. To the extent that Third Party Licensors have licensed OSS Libraries on the terms of v2.1 of the Lesser General Public License issued by the Free Software Foundation (see http://www.gnu.org/licenses/lgpl-2.1.html) (the “LGPL”), those OSS Libraries are licensed to Licensee on the terms of the LGPL and are referred to in this clause 4.2 as the LGPL Libraries. The Foundry will at any time during the three year period starting on the date of the Agreement, at the request of Licensee and subject to Licensee paying to The Foundry a charge that does not exceed The Foundry’s costs of doing so, provide Licensee with the source code of the LGPL Libraries (the “LGPL Source”) in order that Licensee may modify the LGPL Libraries in accordance with the LGPL, together with certain object code of the Software necessary to enable Licensee to re-link any modified LGPL Library to the Software (he “Object”); and
4.3 notwithstanding any other term of the Agreement The Foundry gives no express or implied warranty, undertaking or indemnity whatsoever in respect of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source or the Object, all of which are licensed on an “as is” basis, or in respect of any modification of the Source Code, the OSS Libraries (including the LGPL Libraries) or the LGPL Source made by Licensee (“Modification”). Licensee may not use the Object for any purpose other than its use of the Software in accordance with this EULA. Notwithstanding any other term of the Agreement, The Foundry shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of any of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source, the Object or any Modification. Licensee shall indemnify The Foundry against all liabilities and expenses (including reasonable legal costs) incurred by The Foundry in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.
5. BACK-UP COPY
Licensee may store one copy of the Software and Documentation off-line and off-site in a secured location within the Home Country that is owned or leased by Licensee in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism or other incident. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this EULA.
6. OWNERSHIP
Licensee acknowledges that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation and all related intellectual property rights and other proprietary rights are and shall remain the sole property of The Foundry and the Third Party Licensors. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of The Foundry or any Third Party Licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this EULA, Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by The Foundry hereunder. Nothing in the Agreement shall be deemed to give Licensee any rights in the trademarks, service marks, patents, trade secrets, confidential information, copyrights or other intellectual property rights of The Foundry or any Third Party Licensor, and Licensee shall be strictly prohibited from using the name, trademarks or service marks of The Foundry or any Third Party Licensor in Licensee's promotion or publicity without The Foundry's express written approval.
Subject to clause 4.3, The Foundry undertakes (the “Undertaking”) to defend Licensee or at The Foundry’s option settle any claim brought against Licensee alleging that Licensee’s possession or use of the Software or Documentation in accordance with the Agreement infringes the intellectual property rights of a third party in the same country as Licensee (“Claim”) and shall reimburse all reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against Licensee in connection with any such Claim, provided that the undertaking shall not apply where the Claim in question is attributable to possession or use of the Software or Documentation other than in accordance with the Agreement, or in combination with any hardware, software or service not supplied or specified by The Foundry. The Undertaking is conditional on Licensee giving written notice of the Claim to The Foundry as soon as reasonably possible, cooperating in the defence of the Claim and not making any admission of liability or taking any step prejudicial to the defence of the Claim. If any Claim is made, or in The Foundry's reasonable opinion is likely to be made, against Licensee, The Foundry may at its sole option and expense (a) procure for Licensee the right to continue using the Software, (b) modify the Software so that it ceases to be infringing, (c) replace the Software with non-infringing software, or (d) terminate the Agreement immediately by notice in writing to Licensee and refund the License Fee (less a reasonable sum in respect of Licensee's use of the Software to the date of termination) on return of the Software and all copies. The Undertaking constitutes Licensee's exclusive remedy and The Foundry's only liability in respect of Claims.
7. LICENSE FEE
Licensee acknowledges that the rights granted to Licensee under this EULA are conditional on Licensee's payment in full of the license fee payable in connection with the Agreement (the "License Fee").
8. UPGRADES/ENHANCEMENTS
If the Licensee has paid an annually renewable fee for access to support, upgrades and updates for the Software ("Annual Upgrade and Support Programme"), this is subject to the terms and conditions for the Annual Upgrade and Support Programme available on The Foundry's website. The Foundry may from time to time and at its sole discretion vary the terms and conditions of the Annual Upgrade and Support Programme.
9. TAXES AND DUTIES
Licensee agrees to pay, and indemnify The Foundry from claims for, any local, state or national tax (exclusive of taxes based on net income), duty, tariff or other impost related to or arising from the transaction contemplated by the Agreement.
10. LIMITED WARRANTY
10.1 Subject to clause 10.3, The Foundry warrants that, for a period of ninety (90) days after Licensee first downloads the Software (“Warranty Period”): (a) that the Software will, when properly used on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and (b) that the Documentation correctly describe the operation of the Software in all material respects. If, within the Warranty Period, Licensee notifies The Foundry in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, The Foundry will, at its sole option, either repair or replace the Software, provided that Licensee makes available all the information that may be necessary to identify, recreate and remedy the defect or fault. This warranty will not apply to any defect or fault caused by unauthorised use of or any amendment made to the Software by any person other than The Foundry. If Licensee is a consumer, the warranty given in this clause is in addition to Licensee’s legal rights in relation to any Software or Documentation that is faulty or not as described.
10.2 The Foundry does not warrant that the Software or Documentation will meet Licensee's requirements or that Licensee's use of the Software will be uninterrupted or error free.
10.3 If Licensee purchases a license of the Software that is of a fixed term duration, the Warranty Period in clause 10.1 shall apply only to Licensee’s first purchase of such license and not to any subsequent renewal(s) even if a renewal involves another download.
11. INDEMNIFICATION
Licensee agrees to indemnify, hold harmless and defend The Foundry, the Third Party Licensors and The Foundry's and each Third Party Licensor’s respective affiliates, officers, directors, shareholders, employees, authorized resellers, agents and other representatives from all claims, defence costs (including, but not limited to, legal fees), judgments, settlements and other expenses arising from or connected with any claim that any authorised or unauthorised modification of the Software or Documentation by Licensee or any person connected with Licensee infringes the intellectual property rights or other proprietary rights of any third party.
12. LIMITATION OF LIABILITY TO BUSINESS USERS
This clause applies where Licensee is a business user. Licensee acknowledges that the Software has not been developed to meet its individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation is supplied only for Licensee’s internal use for its business, and not for any re-sale purposes or for the provision of services to third parties. The Foundry shall not under any circumstances whatever be liable to Licensee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for loss of profits, sales, business, or revenue, business interruption, loss of anticipated savings, loss or corruption of data or information, loss of business opportunity, goodwill or reputation or any indirect or consequential loss or damage. In respect of any other losses, The Foundry’s maximum aggregate liability under or in connection with the Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the greater of US$5000 and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law. This EULA sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documents. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on The Foundry. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, the Agreement, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
13. LIMITATION OF LIABILITY TO CONSUMERS
This clause applies where Licensee is a consumer. Licensee acknowledges that the Software has not been developed to meet Licensee’s individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation are only supplied for Licensee’s domestic and private use. Licensee agrees not to use the Software and Documentation for any commercial, business or re-sale purposes, and The Foundry has no liability to Licensee for any loss of profit, loss of business, business interruption, or loss of business opportunity. The Foundry is only responsible for loss or damage suffered by Licensee that is a foreseeable result of The Foundry’s breach of the Agreement or its negligence but The Foundry is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of a breach or if they were contemplated by Licensee and The Foundry at the time of forming the Agreement. Our maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the greater of US$5000 and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law.
14. TERM; TERMINATION
The Agreement is effective upon Licensee's download of the Software, and the Agreement will remain in effect until termination. Licensee may terminate the Agreement at any time on written notice to The Foundry. If Licensee breaches the Agreement, The Foundry may terminate the License by notice to Licensee. If the Agreement is terminated, the License will cease immediately and Licensee will either return to The Foundry all copies of the Software and Documentation in Licensee's possession, custody or power or, if The Foundry directs in writing, destroy all such copies. In the latter case, if requested by The Foundry, Licensee shall provide The Foundry with a certificate confirming that such destruction has been completed.
15. CONFIDENTIALITY
Licensee agrees that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation are proprietary to and the confidential information of The Foundry or, as the case may be, the Third Party Licensors, and that all such information and any related communications (collectively, "Confidential Information") are confidential and a fundamental and important trade secret of The Foundry and/or the Third Party Licensors. If Licensee is a business user, Licensee shall disclose Confidential Information only to Licensee's employees who are working on an Authorized Project and have a "need-to-know" such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as expressly authorized in the Agreement. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any other of Licensee's employees or to any third parties without the express written consent of The Foundry. Licensee agrees to segregate, to the extent it can be reasonably done, the Confidential Information from the confidential information and materials of others in order to prevent commingling. Licensee shall take reasonable security measures, which measures shall be at least as great as the measures Licensee uses to keep Licensee's own confidential information secure (but in any case using no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. The Foundry may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. This clause shall not apply to any information that is in or comes into the public domain, or was in Licensee’s lawful possession before receipt or which Licensee develops independently and without breach of this clause. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that The Foundry shall be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction.
16. INSPECTION AND INFORMATION
16.1 Unless Licensee is a consumer, Licensee shall advise The Foundry on demand of all locations where the Software or Documentation is used or stored. Licensee shall permit The Foundry or its authorized agents to audit all such locations during normal business hours and on reasonable advance notice.
16.2 The Software may include mechanisms to collect limited information from Licensee’s computer(s) and transmit it to The Foundry. Such information (the “Information”) may include details of Licensee’s hardware, details of the operating system(s) in use on such hardware and the profile and extent of Licensee’s use of the different elements of the Software. The Foundry may use the Information to (a) model the profiles of usage, hardware and operating systems in use collectively across its customer base in order to focus development and support, (b) to provide targeted support to individual customers, (c) to ensure that the usage of the Software by Licensee is in accordance with the Agreement and does not exceed any user number or other limits on its use, and (d) to advise Licensee about service issues such as available upgrades and maintenance expiry dates. To the extent that any Information is confidential to Licensee it shall be treated as such by The Foundry. To the extent that any Information constitutes personal data for the purposes of the Data Protection Act 1998 it shall be processed by The Foundry in accordance with that Act and with The Foundry’s privacy policy (see http://www.thefoundry.co.uk/privacy/). Licensee undertakes to make all of users of the Software aware of the uses which The Foundry will make of the Information and of the terms of The Foundry’s privacy policy.
17. U.S. GOVERNMENT LICENSE RIGHTS
All Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, a government end user will acquire the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the government that all Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. The Software is the subject of the following notices:
* Copyright © 2001 - 2020 The Foundry Visionmongers Limited. All Rights Reserved.
* Unpublished-rights reserved under the Copyright Laws of the United Kingdom.
18. SURVIVAL.
Clause 6 and clauses 9 to 20 inclusive shall survive any termination or expiration of the Agreement.
19. IMPORT/EXPORT CONTROLS
To the extent that any Software made available under the Agreement is subject to restrictions upon export and/or re-export from the United States, Licensee agrees to comply with, and not act or fail to act in any way that would violate, the applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act, the Export Administration Act and the Export Administration Regulations, as amended or otherwise modified from time to time, and neither The Foundry nor Licensee shall be required under the Agreement to act or fail to act in any way which it believes in good faith will violate any such laws or regulations.
20. MISCELLANEOUS
Unless Licensee is a consumer, the Agreement is the exclusive agreement between the parties concerning its subject matter and supersedes any and all prior oral or written agreements, negotiations, or other dealings between the parties concerning such subject matter. Licensee acknowledges that Licensee has not relied upon any representation or collateral warranty not recorded in the Agreement inducing it to enter into the Agreement. The Agreement may be modified only in writing. The failure of either party to enforce any rights granted under the Agreement or to take action against the other party in the event of any such breach shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including, unless Licensee is a consumer, non-contractual disputes or claims) shall be governed by, and construed in accordance with English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the English Courts, subject to any right that a consumer may have to bring proceedings or to have proceedings brought against them in a different jurisdiction.
If The Foundry fails to insist that Licensee performs any obligation under the Agreement, or delays in doing so, that will not mean that The Foundry has waived its rights.
Unless Licensee is a consumer, Licensee agrees that The Foundry may refer to Licensee as a client or a user of the Software, may display its logo(s) for this purpose and may publish quotations and testimonials from Licensee, its directors, partners, officers or employees. The Foundry agrees to promptly cease any such use on Licensee’s written request.
The Foundry and Licensee intend that each Third Party Licensor may enforce against Licensee under the Contracts (Rights of Third Parties) Act 1999 (the “Act") any obligation owed by Licensee to The Foundry under this EULA that is capable of application to any proprietary or other right of that Third Party Licensor in or in relation to the Software. The Foundry and Licensee reserve the right under section 2(3)(a) of the Act to rescind, terminate or vary this EULA without the consent of any Third Party Licensor.
Copyright © 2020 The Foundry Visionmongers Limited. All Rights Reserved. Do not duplicate.
IMPORTANT NOTICE TO ALL USERS: BY DOWNLOADING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
IMPORTANT NOTICE TO CONSUMERS: YOU HAVE THE RIGHT TO WITHDRAW FROM YOUR TRANSACTION WITHOUT CHARGE AND WITHOUT REASON AT ANY TIME BEFORE DOWNLOADING OUR PRODUCT(S). HOWEVER YOU WILL LOSE THIS RIGHT ONCE YOU BEGIN TO DOWNLOAD OUR PRODUCT(S). THIS DOES NOT AFFECT YOUR CONSUMER RIGHTS IN RELATION TO DEFECTIVE PRODUCTS OR SERVICES.
This END USER LICENSE AGREEMENT (this "EULA") is incorporated into the agreement between The Foundry Visionmongers Limited, a company registered in England and Wales, ("The Foundry"), and you, as either an individual or a single company or other legal entity ("Licensee") on the terms of which you will purchase the products and services of The Foundry (the “Agreement”).
1. GRANT OF LICENSE
1.1 Subject to the limitations of clause 3 and all the other terms of the Agreement, The Foundry grants to Licensee a limited, non-transferable (subject to clause 2.1 (b) below) and non-exclusive license to download, install and use a machine readable, object code version (subject to clause 4 below) of the software program identified in the Agreement (the "Software") and accompanying user guide and other documentation (the "Documentation"), solely for Licensee's own internal purposes (the "License"); provided, however, Licensee's right to download, install and use the Software and the Documentation is limited to those rights expressly set out in this EULA.
1.2 Some types of license in clause 2.1 limit the installation and use of the Software to the country in which Licensee is based at the date of purchase (the “Home Country”), unless otherwise agreed in writing. Notwithstanding such limits, Licensee may still use the Software outside the Home Country if traveling or working outside the Home Country on a temporary basis provided that such use does not exceed 70 days in aggregate in any rolling twelve month period or, in the case of a Licensee who has purchased a fixed term license for less than twelve months, does not exceed the number of days representing 20% of the term of the license.
1.3 Only to the extent that is proportionate to, and reasonably necessary to support, Licensee’s licensed use of the Software in accordance with the Agreement, Licensee may (provided valid license keys have been obtained) install the Software on more than one computer, provided always that Licensee’s concurrent use of different installations of the Software does not exceed the number of valid Licenses that Licensee has paid for.
2. LICENSE MODELS
2.1 For each product purchased, the License shall be one of the following types of license, and is subject to the following. Please note that some licensing models do not apply to certain products. Whichever licensing model applies, Licensee shall not at any one time use more copies of the Software than the total number of valid licenses purchased by Licensee.
(a)“Node Locked License”
If Licensee purchases a Node Locked License, Licensee shall install and use only a single copy of the Software on only one computer at a time, which may be located anywhere in the Home Country.
(b)“Individual License”
If Licensee purchases an Individual License, Licensee warrants and represents that Licensee is a natural person and that only Licensee shall use the Software. Licensee may assign the Individual License to another natural person (“Assignee”); subject to Licensee (i) notifying The Foundry and obtaining its express written consent, (ii) paying an administrative fee with respect to such transfer, and (iii) after transferring a single copy of the Software to the Assignee, deleting any copies of the Software that Licensee may have in Licensee’s possession, custody or power. An Individual License entitles Licensee to use the Software on only one computer at a time, which may be located anywhere and is not restricted to the Home Country.
(c)“Floating License”
If Licensee purchases a Floating License, use of the Software may be at any site in the Home Country.
2.2 Some of the Software may be made available at concessionary rates as follows:
(a) “Educational License”
If Licensee has purchased the Software on the discount terms offered by The Foundry’s Educational Policy published on its website (the “Educational Policy”), Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) (if Licensee is a natural person) he or she is a part-time or full-time student at the time of purchase and will not use the Software for any commercial, professional or for-profit purposes; (ii) (if the Licensee is not a natural person) it is an organization that will use the Software only for the purpose of training and instruction, and for no other purpose, and (iii) Licensee will at all times comply with the Educational Policy (as such policy may be amended from time to time). Unless the Educational License is a Floating License, Licensee shall use the Software on only one computer at a time.
(b)“Personal Learning Edition License”
If the Software is a Personal Learning Edition (“PLE”), it will not require a license key to be issued to Licensee and will have limited functionality as described in the Documentation. Licensee may use it only for the purpose of personal or internal training and instruction, and for no other purpose. PLE versions of the Software may not be used for commercial, professional or for-profit purposes including, for the avoidance of doubt, the purpose of providing training or instruction to third parties. Licensee shall use the Software on only one computer at a time.
(c) “MODO Steam Edition”
A version of MODO with limited functionality as described in the Documentation is available to purchase on discount terms through Valve Corporation’s Steam store. If Licensee has purchased such version, Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) Licensee is a natural person; and (ii) Licensee will use the Software strictly through Steam and only for personal, recreational and non-commercial use, except only that if Licensee uses the Software to create assets and content Licensee may sell such assets and content through Valve’s Steam Workshop.
(d) “MODO indie” and “MARI indie”
Variants of MODO and MARI with limited functionality as described in the Documentation are available to purchase on discount terms through Valve Corporation’s Steam store. If Licensee has purchased such a variant, Licensee warrants and represents to The Foundry as a condition of the Agreement that: (i) Licensee is a natural person; or (ii) Licensee is an entity in the direct ownership of a single natural person; (iii) Licensee shall only access and/or use one copy of either variant; and (iv) only Licensee shall use the Software.
(e)“Trial License”
Licensee may register for a “Trial License” of the Software (not available for all products or in all regions or markets). A Trial License lasts a limited specified period on the expiry of which the Software will automatically cease to function. Licensee shall use the Software on only one computer at a time.
(f)“Free License”
Licensee may register for a “Free License” of selected Software from The Foundry (not available for all products or in all regions or markets). A Free License lasts a limited specified period on the expiry of which the Software will cease to function; in normal circumstances a replacement to cover a new, time limited, period will be issued. Licensee shall use the Software on only one computer at a time.
2.3 If Licensee has purchased a License that permits “non-interactive” use of the Software (“Headless Rendering”), Licensee is authorized to use a non-interactive version of the Software for rendering purposes only (i.e. without a user, in a non-interactive capacity) and shall not use such Software on workstations or otherwise in a user-interactive capacity. Headless Rendering is not available on all products. In all cases except MODO (in respect of which there is no limit on the amount of Headless Rendering allowed), Headless Rendering licenses are limited to one computer such that the number of computers on which Headless Rendering can be carried out is limited to the number of valid Licenses that have been purchased.
3. RESTRICTIONS ON USE
Please note that in order to guard against unlicensed use of the Software a license key is required to access and enable the Software (other than Software which is licensed under the Personal Learning Edition model – see clause 2.2 (b) above). Licensee is authorized to use the Software in machine readable, object code form only (subject to clause 4), and Licensee shall not: (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this EULA; (b) alter or circumvent the license keys or other copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) (subject to clause 4) modify, adapt, translate or create derivative works based on the Software or Documentation; (d) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project") or to provide a service (whether or not any charge is made) to any third party; (e) allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation; (f) copy or install the Software or Documentation other than as expressly provided for in this EULA; or (g) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of The Foundry or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). For purposes of this clause 3, the term "Software" shall include any derivatives of the Software.
Unless Licensee has purchased an Individual License, if the Software is moved from one computer to another, the issuing of replacement or substituted license keys is subject to and strictly in accordance with The Foundry’s License Transfer Policy, which is available on The Foundry’s website and which requires a fee to be paid in certain circumstances. The Foundry may from time to time and at its sole discretion vary the terms and conditions of the License Transfer Policy.
4. SOURCE CODE
Notwithstanding that clause 1 defines “Software” as an object code version and that clause 3 provides that Licensee may use the Software in object code form only:
4.1 if The Foundry has agreed to license to Licensee (including by way of providing SDKs, upgrades, updates or enhancements/customization) source code or elements of the source code of the Software, the intellectual property rights in which belong either to The Foundry or to a Third Party Licensor (“Source Code”), Licensee shall be licensed to use the Source Code as Software on the terms of this EULA and: (a) notwithstanding clause 3 (c) Licensee may use the Source Code at its own risk in any reasonable way for the limited purpose of enhancing its use of the Software solely for its own internal business purposes and in all respects in accordance with this EULA; (b) Licensee shall in respect of the Source Code comply strictly with all other restrictions applying to its use of the Software under this EULA as well as any other restriction or instruction that is communicated to it by The Foundry at any time during the Agreement (whether imposed or requested by The Foundry or by any Third Party Licensor);
4.2 to the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to Licensee with the Software, nothing in the Agreement shall affect Licensee’s rights under the licenses on which the relevant Third Party Licensor has licensed the OSS Libraries, as stated in the Documentation. To the extent that Third Party Licensors have licensed OSS Libraries on the terms of v2.1 of the Lesser General Public License issued by the Free Software Foundation (see http://www.gnu.org/licenses/lgpl-2.1.html) (the “LGPL”), those OSS Libraries are licensed to Licensee on the terms of the LGPL and are referred to in this clause 4.2 as the LGPL Libraries. The Foundry will at any time during the three year period starting on the date of the Agreement, at the request of Licensee and subject to Licensee paying to The Foundry a charge that does not exceed The Foundry’s costs of doing so, provide Licensee with the source code of the LGPL Libraries (the “LGPL Source”) in order that Licensee may modify the LGPL Libraries in accordance with the LGPL, together with certain object code of the Software necessary to enable Licensee to re-link any modified LGPL Library to the Software (he “Object”); and
4.3 notwithstanding any other term of the Agreement The Foundry gives no express or implied warranty, undertaking or indemnity whatsoever in respect of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source or the Object, all of which are licensed on an “as is” basis, or in respect of any modification of the Source Code, the OSS Libraries (including the LGPL Libraries) or the LGPL Source made by Licensee (“Modification”). Licensee may not use the Object for any purpose other than its use of the Software in accordance with this EULA. Notwithstanding any other term of the Agreement, The Foundry shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of any of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source, the Object or any Modification. Licensee shall indemnify The Foundry against all liabilities and expenses (including reasonable legal costs) incurred by The Foundry in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.
5. BACK-UP COPY
Licensee may store one copy of the Software and Documentation off-line and off-site in a secured location within the Home Country that is owned or leased by Licensee in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism or other incident. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this EULA.
6. OWNERSHIP
Licensee acknowledges that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation and all related intellectual property rights and other proprietary rights are and shall remain the sole property of The Foundry and the Third Party Licensors. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of The Foundry or any Third Party Licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this EULA, Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by The Foundry hereunder. Nothing in the Agreement shall be deemed to give Licensee any rights in the trademarks, service marks, patents, trade secrets, confidential information, copyrights or other intellectual property rights of The Foundry or any Third Party Licensor, and Licensee shall be strictly prohibited from using the name, trademarks or service marks of The Foundry or any Third Party Licensor in Licensee's promotion or publicity without The Foundry's express written approval.
Subject to clause 4.3, The Foundry undertakes (the “Undertaking”) to defend Licensee or at The Foundry’s option settle any claim brought against Licensee alleging that Licensee’s possession or use of the Software or Documentation in accordance with the Agreement infringes the intellectual property rights of a third party in the same country as Licensee (“Claim”) and shall reimburse all reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against Licensee in connection with any such Claim, provided that the undertaking shall not apply where the Claim in question is attributable to possession or use of the Software or Documentation other than in accordance with the Agreement, or in combination with any hardware, software or service not supplied or specified by The Foundry. The Undertaking is conditional on Licensee giving written notice of the Claim to The Foundry as soon as reasonably possible, cooperating in the defence of the Claim and not making any admission of liability or taking any step prejudicial to the defence of the Claim. If any Claim is made, or in The Foundry's reasonable opinion is likely to be made, against Licensee, The Foundry may at its sole option and expense (a) procure for Licensee the right to continue using the Software, (b) modify the Software so that it ceases to be infringing, (c) replace the Software with non-infringing software, or (d) terminate the Agreement immediately by notice in writing to Licensee and refund the License Fee (less a reasonable sum in respect of Licensee's use of the Software to the date of termination) on return of the Software and all copies. The Undertaking constitutes Licensee's exclusive remedy and The Foundry's only liability in respect of Claims.
7. LICENSE FEE
Licensee acknowledges that the rights granted to Licensee under this EULA are conditional on Licensee's payment in full of the license fee payable in connection with the Agreement (the "License Fee").
8. UPGRADES/ENHANCEMENTS
If the Licensee has paid an annually renewable fee for access to support, upgrades and updates for the Software ("Annual Upgrade and Support Programme"), this is subject to the terms and conditions for the Annual Upgrade and Support Programme available on The Foundry's website. The Foundry may from time to time and at its sole discretion vary the terms and conditions of the Annual Upgrade and Support Programme.
9. TAXES AND DUTIES
Licensee agrees to pay, and indemnify The Foundry from claims for, any local, state or national tax (exclusive of taxes based on net income), duty, tariff or other impost related to or arising from the transaction contemplated by the Agreement.
10. LIMITED WARRANTY
10.1 Subject to clause 10.3, The Foundry warrants that, for a period of ninety (90) days after Licensee first downloads the Software (“Warranty Period”): (a) that the Software will, when properly used on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and (b) that the Documentation correctly describe the operation of the Software in all material respects. If, within the Warranty Period, Licensee notifies The Foundry in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, The Foundry will, at its sole option, either repair or replace the Software, provided that Licensee makes available all the information that may be necessary to identify, recreate and remedy the defect or fault. This warranty will not apply to any defect or fault caused by unauthorised use of or any amendment made to the Software by any person other than The Foundry. If Licensee is a consumer, the warranty given in this clause is in addition to Licensee’s legal rights in relation to any Software or Documentation that is faulty or not as described.
10.2 The Foundry does not warrant that the Software or Documentation will meet Licensee's requirements or that Licensee's use of the Software will be uninterrupted or error free.
10.3 If Licensee purchases a license of the Software that is of a fixed term duration, the Warranty Period in clause 10.1 shall apply only to Licensee’s first purchase of such license and not to any subsequent renewal(s) even if a renewal involves another download.
11. INDEMNIFICATION
Licensee agrees to indemnify, hold harmless and defend The Foundry, the Third Party Licensors and The Foundry's and each Third Party Licensor’s respective affiliates, officers, directors, shareholders, employees, authorized resellers, agents and other representatives from all claims, defence costs (including, but not limited to, legal fees), judgments, settlements and other expenses arising from or connected with any claim that any authorised or unauthorised modification of the Software or Documentation by Licensee or any person connected with Licensee infringes the intellectual property rights or other proprietary rights of any third party.
12. LIMITATION OF LIABILITY TO BUSINESS USERS
This clause applies where Licensee is a business user. Licensee acknowledges that the Software has not been developed to meet its individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation is supplied only for Licensee’s internal use for its business, and not for any re-sale purposes or for the provision of services to third parties. The Foundry shall not under any circumstances whatever be liable to Licensee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for loss of profits, sales, business, or revenue, business interruption, loss of anticipated savings, loss or corruption of data or information, loss of business opportunity, goodwill or reputation or any indirect or consequential loss or damage. In respect of any other losses, The Foundry’s maximum aggregate liability under or in connection with the Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the greater of US$5000 and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law. This EULA sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documents. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on The Foundry. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, the Agreement, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
13. LIMITATION OF LIABILITY TO CONSUMERS
This clause applies where Licensee is a consumer. Licensee acknowledges that the Software has not been developed to meet Licensee’s individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation are only supplied for Licensee’s domestic and private use. Licensee agrees not to use the Software and Documentation for any commercial, business or re-sale purposes, and The Foundry has no liability to Licensee for any loss of profit, loss of business, business interruption, or loss of business opportunity. The Foundry is only responsible for loss or damage suffered by Licensee that is a foreseeable result of The Foundry’s breach of the Agreement or its negligence but The Foundry is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of a breach or if they were contemplated by Licensee and The Foundry at the time of forming the Agreement. Our maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the greater of US$5000 and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law.
14. TERM; TERMINATION
The Agreement is effective upon Licensee's download of the Software, and the Agreement will remain in effect until termination. Licensee may terminate the Agreement at any time on written notice to The Foundry. If Licensee breaches the Agreement, The Foundry may terminate the License by notice to Licensee. If the Agreement is terminated, the License will cease immediately and Licensee will either return to The Foundry all copies of the Software and Documentation in Licensee's possession, custody or power or, if The Foundry directs in writing, destroy all such copies. In the latter case, if requested by The Foundry, Licensee shall provide The Foundry with a certificate confirming that such destruction has been completed.
15. CONFIDENTIALITY
Licensee agrees that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation are proprietary to and the confidential information of The Foundry or, as the case may be, the Third Party Licensors, and that all such information and any related communications (collectively, "Confidential Information") are confidential and a fundamental and important trade secret of The Foundry and/or the Third Party Licensors. If Licensee is a business user, Licensee shall disclose Confidential Information only to Licensee's employees who are working on an Authorized Project and have a "need-to-know" such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as expressly authorized in the Agreement. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any other of Licensee's employees or to any third parties without the express written consent of The Foundry. Licensee agrees to segregate, to the extent it can be reasonably done, the Confidential Information from the confidential information and materials of others in order to prevent commingling. Licensee shall take reasonable security measures, which measures shall be at least as great as the measures Licensee uses to keep Licensee's own confidential information secure (but in any case using no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. The Foundry may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. This clause shall not apply to any information that is in or comes into the public domain, or was in Licensee’s lawful possession before receipt or which Licensee develops independently and without breach of this clause. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that The Foundry shall be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction.
16. INSPECTION AND INFORMATION
16.1 Unless Licensee is a consumer, Licensee shall advise The Foundry on demand of all locations where the Software or Documentation is used or stored. Licensee shall permit The Foundry or its authorized agents to audit all such locations during normal business hours and on reasonable advance notice.
16.2 The Software may include mechanisms to collect limited information from Licensee’s computer(s) and transmit it to The Foundry. Such information (the “Information”) may include details of Licensee’s hardware, details of the operating system(s) in use on such hardware and the profile and extent of Licensee’s use of the different elements of the Software. The Foundry may use the Information to (a) model the profiles of usage, hardware and operating systems in use collectively across its customer base in order to focus development and support, (b) to provide targeted support to individual customers, (c) to ensure that the usage of the Software by Licensee is in accordance with the Agreement and does not exceed any user number or other limits on its use, and (d) to advise Licensee about service issues such as available upgrades and maintenance expiry dates. To the extent that any Information is confidential to Licensee it shall be treated as such by The Foundry. To the extent that any Information constitutes personal data for the purposes of the Data Protection Act 1998 it shall be processed by The Foundry in accordance with that Act and with The Foundry’s privacy policy (see http://www.thefoundry.co.uk/privacy/). Licensee undertakes to make all of users of the Software aware of the uses which The Foundry will make of the Information and of the terms of The Foundry’s privacy policy.
17. U.S. GOVERNMENT LICENSE RIGHTS
All Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, a government end user will acquire the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the government that all Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. The Software is the subject of the following notices:
* Copyright © 2001 - 2020 The Foundry Visionmongers Limited. All Rights Reserved.
* Unpublished-rights reserved under the Copyright Laws of the United Kingdom.
18. SURVIVAL.
Clause 6 and clauses 9 to 20 inclusive shall survive any termination or expiration of the Agreement.
19. IMPORT/EXPORT CONTROLS
To the extent that any Software made available under the Agreement is subject to restrictions upon export and/or re-export from the United States, Licensee agrees to comply with, and not act or fail to act in any way that would violate, the applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act, the Export Administration Act and the Export Administration Regulations, as amended or otherwise modified from time to time, and neither The Foundry nor Licensee shall be required under the Agreement to act or fail to act in any way which it believes in good faith will violate any such laws or regulations.
20. MISCELLANEOUS
Unless Licensee is a consumer, the Agreement is the exclusive agreement between the parties concerning its subject matter and supersedes any and all prior oral or written agreements, negotiations, or other dealings between the parties concerning such subject matter. Licensee acknowledges that Licensee has not relied upon any representation or collateral warranty not recorded in the Agreement inducing it to enter into the Agreement. The Agreement may be modified only in writing. The failure of either party to enforce any rights granted under the Agreement or to take action against the other party in the event of any such breach shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including, unless Licensee is a consumer, non-contractual disputes or claims) shall be governed by, and construed in accordance with English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the English Courts, subject to any right that a consumer may have to bring proceedings or to have proceedings brought against them in a different jurisdiction.
If The Foundry fails to insist that Licensee performs any obligation under the Agreement, or delays in doing so, that will not mean that The Foundry has waived its rights.
Unless Licensee is a consumer, Licensee agrees that The Foundry may refer to Licensee as a client or a user of the Software, may display its logo(s) for this purpose and may publish quotations and testimonials from Licensee, its directors, partners, officers or employees. The Foundry agrees to promptly cease any such use on Licensee’s written request.
The Foundry and Licensee intend that each Third Party Licensor may enforce against Licensee under the Contracts (Rights of Third Parties) Act 1999 (the “Act") any obligation owed by Licensee to The Foundry under this EULA that is capable of application to any proprietary or other right of that Third Party Licensor in or in relation to the Software. The Foundry and Licensee reserve the right under section 2(3)(a) of the Act to rescind, terminate or vary this EULA without the consent of any Third Party Licensor.
Copyright © 2020 The Foundry Visionmongers Limited. All Rights Reserved. Do not duplicate.