TERMS AND CONDITIONS
FOR USE OF SOFTWARE PRODUCTS AND CLOUD SERVICES
PLEASE READ CAREFULLY.
The Product and Service are provided to You under the condition that You accept any and all terms hereof
1. UMBRELLA AGREEMENT
This instrument constitutes an umbrella agreement which combines in one contract the various terms and conditions mentioned below, although they are designed to be enforced separately, applicable to the legitimate use of software products and cloud services, as designated below.
You (either you personally if you have acquired entitlement to use Product(s) or Service(s), as defined below, for yourself, or another legal entity, and for which you warrant that you have the capacity and authority to bind to this Agreement) (“You” or “Licensee”), purchased from one of the Trimble affiliates or partners around the world, Trimble SketchUp Studio which entitles You to use the Product as defined below further to an agreement by and between Chaos Software LTD EOOD, EIK (company number) 204662149,Mladost-1A, block 548 entrance B, 2nd floor, Sofia 1729, Bulgaria, (“Company”), and Trimble. These below are the terms and conditions under which You are entitled to use the Product and/or Service:
By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Product and/or Services as defined below, (i) You accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and You agree to act in a manner consistent with this Agreement) or, if there is no such entity for which You are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that You are legally bound by this Agreement, and (ii) you represent and warrant that You have the right, power and authority to act on behalf of and bind such entity (if any) or Yourself. You may not accept this Agreement on behalf of another entity unless You are an employee or another agent of such other entity with the right, power and authority to act on behalf of such other entity.
By accepting this Agreement You also accept, agree and guarantee that in case You provide to a third person the legitimate possibility to access or use the Product and/or Service, or any part of it, You shall procure the said third person’s acceptance and agreement with the present Agreement otherwise such access or usage shall be deemed illegal.
By accepting this Agreement You also accept the terms and conditions referred to underneath, for the:
V-Ray for SketchUp End User License Agreement,
License Server Agreement,
Swarm End User License Agreement, and
Chaos Software Terms of Service, inseparable parts hereto.
If You do not agree to any or all of the terms in the Agreement, or any other applicable terms and conditions referred to as part of the relationships hereunder and/or a condition precedent for their validity, You must not download, agree to the terms and conditions, click or check a relevant button, or perform any similar act of acceptance, and/or do not use the Product or any Services.
2. DEFINITIONS
The clause headings are included for convenience only, have no legal effect and shall be ignored when construing the Agreement. Capitalized terms are defined in the Agreement, or elsewhere in the other applicable terms and conditions accepted hereby by reference.
Unless otherwise stated, references to clauses or schedules are references to the clauses or schedules of the Agreement, references to the Agreement include its schedules and references to paragraphs within a schedule are references to the paragraphs of that schedule.
Words importing the singular include the plural, and the opposite applies, and words importing any gender include the other genders.
References to persons include individuals, firms, partnerships, limited liability partnerships, companies, corporations, associations, organizations, governments, governmental agencies and departments, states, foundations and trusts (in each case whether or not having separate legal personality) and corresponding or similar entities in any relevant jurisdiction.
Reference to any statute includes a reference to any subordinate legislation and to any amendments, consolidation, extension or re-enactment of that statute or subordinate legislation.
The use of the words "including" or "include" shall not limit the general applicability of any preceding words.
The separate contracts referred to as parts of this umbrella agreement may have separate definitions as stipulated in either of them.
2.1. "Cosmos Content" means any digital file or other content created by Company, listed on https://cosmos.chaos.com/, that You may Use when using the Product. Cosmos Content may be available for paid or free Use, upon Company's discretion. Cosmos Content may be available only to certain regions, target groups of customers, or specific software Products where the relevant restrictions or prerequisites will be designated by the Company in user guides, relevant Company website(s), or elsewhere.
2.2. “Effective Date” means the date on which You accept this clickwrap Agreement or otherwise access, download, execute or use the Product, whichever occurs first.
2.3. “Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
2.4. “Product”, as referred herein consists of (some, either of the following or all of them):the particular (a) V-Ray for SketchUp rendering simulation software, and (b) SWARM software, You chose to get licensed for, as may be specified and designated in the Product section of the Company’s web portal, as part of Trimble SketchUp Studio as defined below;
any other accompanying software, plug-ins and any updates or upgrades to the rendering or simulation software that Licensee may install from time to time;
any associated files, documentation and materials, including but not limited to installation files, binary executable files, library files, configuration files and documentation files.
2.5. "Cosmos Result" means Your own specific digital output generated from your Use of Products and based on Your own input materials and Cosmos Content.
2.6. “Trial License” means a version of Product to be used only to review, demonstrate and evaluate the Product. The Trial License may either have limited features, and/or its free use might be limited in time.
2.7. “Trial Period” is a limited period in which Licensee is entitled to use the Product for a time period during which Licensee is engaged in a trial of SketchUp Studio. Subject to the terms and conditions hereof, except if otherwise provided elsewhere, Company grants to Licensee the license specified below to evaluate the Product during the time period that the Licensee is licensed to use SketchUp Studio on a trial basis.
2.8. "Trimble" means Trimble Europe B.V., Meerheide 45, 5521 DZ Eersel, The Netherlands, or any of its authorized subsidiaries, partners or affiliates, authorized by virtue of a separate agreement to resell Chaos’ Product V-Ray for SketchUp as part of Trimble’s SketchUp Studio (“Studio”), sold as a non-transferable single user commercial subscription. Each such SketchUp Studio End User will receive a one-time package of 20 Cloud Credits with an expiration period of 90 days.
2.9. “Use” or “Using” means to access, download, execute, install, copy or otherwise benefit from using the functionality of the Product in accordance with this Agreement and/or the documentation. "Use", when specifically referring to Cosmos Content, will mean a) browsing the Cosmos Content by taking advantage of the tools provided by the Company, b) downloading Cosmos Content, on a piece by piece basis, and c) importing it in a specially designated software Product for the purpose of processing the Cosmos Content together with Your other materials so as to prepare raw input data or information such as imagery files capable of follow up rendering or otherwise processing service(s), aiming to finally achieve a Cosmos Result.
3. PRODUCT DELIVERY. COLLATERAL PRODUCTS
3.1. The Company will deliver the Product electronically. You have to register and download the Product from the designated Trimble Account Management Portal. In order to receive the Product license authorization key, you may have to generate a provisional code from the machine where the License Server is installed, following the instructions in the furnished documentation and to provide that provisional code to the Company. The Company will further provide the respective Product authorization key.
3.2. The Company does not warrant authenticity and the Company may not provide any warranty for products downloaded elsewhere.
3.3. The Product may be accompanied, may contain or the Company may provide from time to time other own and/or third party's software, drivers, data, documents, materials, etc. (“Collateral Products”). Collateral Products may include, be subject to or provided in accordance with other terms in addition to or different from the terms set forth in this Agreement. Unless such terms are included or referenced Collateral Products are subject to this Agreement. In case such terms apply You agree to comply with them.
3.4. You will take sole responsibility for acquiring and complying with any licenses that may be necessary to use or to use in a different way any third party's software, data, documents or other materials. You acknowledge and agree that Company has no responsibility for, and makes no representations or warranties regarding, such third party's software, data, documents or other materials or Your use of such third party's software, data, documents or other materials.
3.5. The Product shall be authorized by a compatible license server (an ancillary license administration software used by the rendering or simulation software described hereunder, to prevent usage of unlicensed versions or copies of such rendering or simulation software, hereinafter referred to as “License Server”). The terms and conditions for the License Server shall be arranged in a separate agreement attached for your convenience as License Server Agreement, an integral part hereto.
4. LIMITATIONS/RESTRICTIONS
4.1. You may NOT:
a. make copies or otherwise reproduce the Product, except for installing it on Licensee's computers and for back-up copies as specified above;
b. use the Product to develop a new product with the same or similar main function;
c. redistribute or give the Product, either in part or in whole, as originally provided or modified, away in any way (lease, rent, loan, charge, donate, exchange, share or other) to any third parties. You are not allowed to sell (except if permitted by applicable law), transfer, assign or grant access to the Product to any third party and You ensure that Product (accessed either locally or remotely) is used only by You personally, in case You are an individual, or by Your employees, on Your behalf, in case You are a legal entity, and You are responsible for compliance with the terms of this Agreement by its employees. You shall notify Company in a timely manner if You becomes aware of any unauthorized use of the whole or any part of the Product by any third party. The notification shall be made to: contacts@chaosgroup.com;
d. use the Product for commercial rendering services that provide third parties with contracted/on demand rendering or simulation services, unless you acquired a render-farm license;
e. create any derivative works or make any translation, adaptation, arrangement and any other alteration of the Product or make any reproduction, distribution, communication, display or performance to the public of the results of such acts;
f. adapt or reverse compile or reverse engineer or otherwise tamper the whole or any part of the Product;
g. remove or alter any copyright or other proprietary notice from the Product;
h. use any of the Product's components, files, modules, audio-visual content, or related licensed materials separately from the Product;
i. use the Product in a manner that infringes any third party's copyrights or any other rights;
j. participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to Company or the Product, including but not limited to, using the Cosmos Content to create a Cosmos Result of pornographic nature;
k. use a number of concurrent users of the Product that exceed the number of licenses acquired. Additional licenses can be added from time to time as such licenses are acquired;
l. use the Product for commercial purposes, unless you acquired Advanced / Commercial or Render Service Provider License;
m. sell, productize or otherwise distribute any individual Cosmos Content on a standalone basis. You may sell, productize or otherwise distribute Cosmos Content that is integrated in a Cosmos Result.
5. CONFIDENTIALITY AND NON-DISCLOSURE
5.1. The Company and You acknowledge and agree that during the Term of or in relation with this Agreement either party (the "Disclosing Party") may disclose to the other party (the "Recipient") certain business and/or technical information of a confidential and proprietary nature. "Confidential Information" means any proprietary information, trade secret (organization, structure, object or source code of the Product, etc. any API, SDKs, libraries, reference, sample code etc.) or other non-public information that Disclosing Party delivers or communicates to the Recipient or to which the Recipient otherwise gains access to under this Agreement;
5.2. Confidential information may be used only internally and only in conjunction with and for Recipient’s own authorized internal use, including but not limited to, the performance of obligations hereunder.
5.3. Recipient shall maintain the confidentiality of the Disclosing Party’s Confidential Information and may not disclose, distribute or otherwise provide it to third parties throughout the term of Your Product license, except in cases where such information is required by applicable law or court order and a prompt advance notice to Disclosing party has been sent to enable the latter to seek a protective order or otherwise prevent such disclosure.
6. OWNERSHIP
6.1. You acknowledge and agree that possession, installation, or use of the Product does not transfer to You any title to the Company's intellectual property. The Company and its licensors own and retain title to and ownership of, and all other rights with respect to, the Product, the Collateral Products, the Confidential Information and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.
6.2. You are granted only such rights as expressly described in the various terms and conditions accepted hereby either directly or by reference, and You have no other rights, implied or otherwise.
6.3. APIs: You acknowledge and agree that any API information and development materials provided (a) are confidential and proprietary to the Company, (b) may not be distributed, disclosed or otherwise provided to third parties, (c) may be used only internally and only in conjunction with and for your own authorized internal use of the Product to which the API information or development materials relate, such as the development and support of applications, modules and components to operate on or with the Product, and (d) may only be Installed on the same Computer(s) where the Product is permitted to be Installed.
7. PRIVACY (IN CASE LICENSEE IS AN INDIVIDUAL)
7.1. You acknowledge and agree that in order to acquire and use the Product, You (and third parties acting on Your behalf) may have to provide, and the Company and its resellers (and third parties acting on behalf of the Company and its resellers) may acquire, certain personal information and data with respect to You. Company processes Your personal data on contractual basis. The Company is a data controller and as such the Company takes appropriate technical and organizational measures to protect Your personal information. Personal information and data provided to the Company in connection with this Agreement may be processed in Bulgaria or any other country within the European Union (EU) in which the Company or its subsidiaries, affiliates or resellers maintain facilities. Some of our affiliates, subsidiaries and resellers are located outside the EU. In principle, the Company aims not to disclose personal information outside the EU and the EEA, or at least limit the cross-border data transfers to a minimum. Only in case one of our affiliates, subsidiaries and resellers are located or uses servers located outside of the EU or the EЕA, and it is absolutely necessary, the Company may transfer personal data outside of the said boundaries. However, in such cases the Company shall ensure that adequate measures for protection of Your personal data are in place and that the requirements of the applicable legislation are met before a cross-border transfer of personal data is executed.
7.2. Personal information and data may be processed only for the performance of this Agreement, for administration and authentication purposes necessary for the execution of the Agreement, compliance with a legal obligation or to respond to support inquiries. In a very limited number of cases the Company processes Your personal data based on legitimate interest, but only after the Company has carefully assessed that such interests does not concern the fundamental rights and freedoms of the data subject.
7.3. Please note that Your personal information may be collected and processed in order to detect, prevent, or otherwise address non-valid use such as through fraud and software piracy (e.g., to confirm that software is genuine and properly licensed) and to protect You, the Company, and/or third parties in furtherance of our legitimate interests. Using non-valid software is an act of copyright infringement, which may result in both civil and criminal penalties. Further, this Agreement requires all customers to use the Product in compliance with all applicable laws and further prohibits any act of unauthorized use, access or reproduction. The Company works with third party service providers to investigate the sale and use of non-valid software and in case of suspicions of software privacy the Company may share personal data of suspected individuals to those third parties provided all applicable legislative requirements are followed. The Company reserves all rights to take actions against unauthorized resellers of the Product on popular marketplaces and e-commerce sites, as well as to investigate anonymous reports of suspicious resellers and users of non-valid Product and software.
7.4. The Company may provide personal information and data to its subsidiaries and affiliates, resellers or partners, including but not limited to Trimble, in connection with the provision, maintenance, administration or usage of the Product. Personally identifiable information and data will not be disclosed to external third parties not described in the Company's Privacy Policy without Your consent. The Company may, however, be required, by law or otherwise, to provide personal information and data to authorized organizations. Your account is password protected and all information is on a secure server, which only a limited number of the Company's personnel can access. If You suspect that someone else knows Your password, or is using it, You shall inform the Company and change Your password immediately.
7.5. The Company will keep Your personal information and data for as long as necessary to fulfil the above purposes or as provided for by law. You may modify and correct incomplete or inaccurate data at any time by notifying the Company of any change to dpo@chaosgroup.com. Any request for deletion of Your personal data may result in immediate termination of this Agreement and Your right to use the Product, which will become effective upon expiration of Your prepaid period. For additional information related to Your personal data, please read carefully our full Privacy Policy at: https://www.chaosgroup.com/privacy. Please note that Company may revise from time to time its Privacy Policy, and its most up to date version will always be available on the link listed above
8. LIMITED WARRANTY
8.1. REFUNDS AND RETURN POLICY, IF ANY, OF TRIMBLE APPLIES.
8.2. THE COMPANY WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE WHEN YOU ACQUIRE THE PRODUCT (WARRANTY PERIOD), THE PRODUCT WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE CORRESPONDING DOCUMENTATION WHEN PROPERLY USED. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE OR SUPPORT OR ANY OTHER SERVICES NOT PART OF THE PRODUCT, WHICH THE COMPANY, AT ITS SOLE DISCRETION, MAY PROVIDE FROM TIME TO TIME, AND WHICH ARE MADE AVAILABLE ON AN AS-IS BASIS WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, NOT LIMITED TO PRE-RELEASED SOFTWARE, UNSTABLE VERSIONS, BETA, TRIAL, EVALUATION, OR NOT-FOR-RESALE COPIES, ANY SOFTWARE MADE AVAILABLE BY THE COMPANY FOR FREE.
8.3. THIS LIMITED WARRANTY IS VOID IF FAILURE IN PERFORMANCE OR DEFECT OF THE PRODUCT RESULTED FROM YOUR NEGLIGENCE, ABUSE, MISUSE, AMENDMENT OR ATTEMPTED AMENDMENT OF THE PRODUCT FORM THIRD PARTY OTHER THAN THE COMPANY, ACCIDENT, IMPROPER OR UNAUTHORIZED USE OF THE PRODUCT OR MATERIAL BREACH OF THIS AGREEMENT. ALL WARRANTY CLAIMS MUST BE MADE WITHIN THE WARRANTY PERIOD TO TRIMBLE FROM WHICH YOU ACQUIRED THE PRODUCT OR TO THE COMPANY, ALONG WITH PROOF OF ACQUIREMENT.
8.4. THE ENTIRE LIABILITY OF THE COMPANY RELATED TO ANY WARRANTY CLAIM AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER ANY WARRANTY WILL BE LIMITED TO EITHER, AT THE COMPANY'S DISCRETION, (I) TO USE REASONABLE EFFORTS TO CORRECT DEFECTS OR WORK AROUND ERRORS, PROVIDED THAT YOU MAKE AVAILABLE TO MAXIMUM EXTENT POSSIBLE ALL THE INFORMATION THE COMPANY MAY NEED TO RECREATE AND CORRECT THE DEFECT OR FAULT OR IF SUCH EFFORTS FAIL OR ARE UNPRACTICAL (II) TO REFUND THE LICENSE FEES, IF ANY, PAID BY YOU AND TERMINATE THIS AGREEMENT. SUCH REFUND IS SUBJECT TO THE RETURN, DURING THE WARRANTY PERIOD, OF THE PRODUCT. THE LIMITED WARRANTY SET FORTH GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER APPLICABLE LAW. COMPANY DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
9. DISCLAIMER
9.1. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF, AND LICENSEE ACKNOWLEDGES AND AGREES THAT COMPANY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, TERMS, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (WHETHER BY STATUTE, LAW, CUSTOM, USAGE OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NONINFRINGEMENT. THE FOREGOING LIMITED WARRANTY IS FURTHER NOT ENLARGED OR OTHERWISE AFFECTED BY COMPANY'S RENDERING OR ANY SUPPORT SERVICES OR TECHNICAL OR OTHER ADVICE OR COMMUNICATION IN CONNECTION WITH THE PRODUCT OR ITS USE. WITHOUT LIMITING THE FOREGOING DISCLAIMER, COMPANY DOES NOT WARRANT THAT PRODUCT WILL MEET LICENSEE'S EXPECTATIONS, THAT THE PERFORMANCE OR OUTPUT OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE NOR THAT DEFECTS OR FAULTS WILL BE CORRECTED. THE PRODUCT IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING OF PHYSICAL PROTOTYPES FOR PRODUCT STRESS, SAFETY AND UTILITY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY A CONTRACTUAL RESTRICTION.
9.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY TERMS AND CONDITIONS AGREED TO HEREBY, EITHER DIRECTLY OR BY REFERENCE, THE COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCT, AND THAT THE COMPANY WILL CORRECT ALL DEFECTS. THE USE OF THE PRODUCT IS AT USER'S SOLE RISK. UNLESS THE COMPANY SPECIFIES OTHERWISE, IT PROVIDES THIRD PARTY PRODUCTS WITHOUT WARRANTIES OF ANY KIND. HOWEVER, THEIR RESPECTIVE MANUFACTURERS, DEVELOPERS, SUPPLIERS, OR PUBLISHERS MAY PROVIDE THEIR OWN WARRANTIES.
10. LIMITATIONS OF LIABILITY
10.1. IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE (DIRECTLY OR INDIRECTLY) TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING, NOT LIMITED TO ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE DAMAGES OR DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS OR DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. YOU ACKNOWLEDGE AND AGREE THAT IN ANY EVENT THE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS ARISING OUT OF OR IN CONNECTION TO THIS AGREEMENT AND ANY COMPANY'S PRODUCT OR SERVICE WILL BE LIMITED, EXCEPT FOR REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, TO THE AMOUNT OF USD 5, EVEN IF THAT AMOUNT MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE REMEDY CLAIMED. COMPANY DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
11. TERM AND TERMINATION
11.1. The Agreement is not limited with any term and is effective until terminated, unless, as of the time the Product is acquired, the Agreement for Your specific Product is time-limited with a fixed expiration period as may be specified on the License Server webpage, in the relevant Product section, and/or supporting documentation, and/or elsewhere publicly available with clear and disambiguous language.
11.2. The term of each of the licenses, acquired under the Agreement, is indicated in the expiration section on the License Server status web page and / or Trimble’s Account Management Portal.
11.3. You may terminate the Agreement, as a whole or part for a particular Product, at any time, by returning and/or destroying the Product, related documentation and all copies thereof.
11.4. The Agreement will also terminate immediately, without any notice from the Company, if You fail to comply with any provision of the Agreement. Company may amend or terminate the Agreement for convenience, in whole or in part (NOTE: about affected particular Product(s), Type(s) of License, or any other provision(s) as per the Company’s sole discretion), at any time, by either (a) sending you a personal hard copy or digital message, or (b) displaying a relevant public notice on the Company website; on the License Server webpage; in the relevant Product section; and/or in any supporting documentation; and/or elsewhere typically accessing by the Product users, thus making the notice publicly available. Amendment or termination is to be made with clear and disambiguous language and by giving a reasonable period, as per the sole discretion of the Company, before either of them to become effective.
11.5. Upon the termination of the Agreement for whatsoever reason, You must cease all use of the Product and destroy all copies, full or partial, of the Product. If applicable, Trimble will inform You about any refund available.
11.6. Sections concerning LIMITATIONS/RESTRICTIONS, CONFIDENTIALITY AND NON DISCLOSURE, OWNERSHIP, PRIVACY, LIMITED WARRANTY, DISCLAIMER, LIMITATIONS OF LIABILITY, and OTHER PROVISIONS will survive the termination of this Agreement, howsoever caused, and this will not imply or create any continued right for You to use the Product or any part of the Product after termination of this Agreement.
12. OTHER PROVISIONS
12.1. This Agreement, including the formation, interpretation, breach or termination thereof, will be governed by and construed in accordance with the laws of the Republic of Bulgaria, without regard to its conflict of law rules and principles. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement. The parties to this Agreement shall each use commercially reasonable efforts to settle any dispute, controversy or claim arising out of or relating to this Agreement. If no solution is achieved within sixty (60) days of a party’s written notice of a dispute, You agree that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the for resolution to the Court of Arbitration of the Bulgarian Chamber of Commerce and Industry in Sofia, Bulgaria, and be resolved, enforced and further executed in accordance with court rules then in effect and any other laws then in force throughout the Republic of Bulgaria, except that if You are an individual or for any other reason arbitration may not apply to You, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the competent court in Pleven, Bulgaria, and subject to appeal before the relevant appeal court and court of cassations. The parties to this Agreement waive any other venue to which either party might be entitled by domicile or otherwise. Nothing in the foregoing will prevent Company from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur. You will be considered to have received the Product and subscribed to a service based on the governing law agreed hereunder, regardless of where the Product and the service are delivered or accessed. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Company's prior written consent, which may be withheld at Company's sole and absolute discretion, and any unauthorized purported assignment by You will be void. You acknowledge and agree that Company may assign or sub-contract any of its rights or obligations under this Agreement.
12.2. In the event any of the terms of the Agreement is declared null or void because it conflicts with the applicable law, the rest of the terms and the Agreement as a whole will remain in full effect. Such invalid term will be superseded by the legal provisions.
12.3. Any amendment or modification of the Agreement shall only be made by an additional agreement made in writing between the parties (annex) and signed by both of them. Upon its discretion, Company may, from time to time, adjust any fees for any Service/ Product, with or without notice to You. Generally, fee adjustment will affect Your entitlement as from any new purchase, made after the effective date of the fee adjustment, and will, typically, not have retroactive effect.
12.4. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
12.5. The Company will not be liable for any loss, damage or penalty if Product is not performing or Licensee is not able to use any or all of the Product's features due to a force majeure (including, but not limited to short-circuits, power outages, internet network malfunctions, administrative limitations and others such as a war, strike, riot, crime, or an event described by the legal term "act of God" e.g., flooding, earthquake, etc.) or other causes beyond Company's reasonable control.
12.6. The Company shall keep the right to make and have implemented, from time to time, any changes, improvements and corrections it deems necessary of the Product hereunder, as long as such change, improvement or correction does not affect the Products main function (rendering of 3d models or computational fluid dynamics simulations of smoke, fire and liquid effects)) and does not qualify as a new product.
12.7. Company may contact You with relevant product information or marketing communications, such as newsletters. Such communications contain instructions how Licensee can opt-out in case Licensee does not wish to continue receiving them.
12.8. The Product may contain technology to collect anonymous usage data, including but not limited to render or simulation times, settings and used features. Usage data will not contain any information that may be used to identify You or your work personally. However, such technology may inadvertently collect information which may identify you as an individual or organization, in which case the data privacy rules in the relevant section above will apply. Usage data will be collected only after explicit authorization by You and can be reviewed and disabled by You at any time. Usage data in raw or aggregated form may be transmitted to third party servers over the Internet, which may be or may be not under control of the Company. The Company may generate and publish summary reports based on the anonymous data obtained. Such reports may be made available in machine readable format to third parties for further analysis, generally, for the purposes of improving the quality of the Product and the services provided by the Company to You or the public.
12.9. The Company uses tools to collect information about Your preference and behavior in order to deliver certain features and extensions related to the Product, identify trends and bugs, collect usage statistics and track other data related to Your use of the Product, as may be instructed from time to time by the Company. By accepting this Agreement, You consent to collection, processing, use and transfer of data in the manner and for the purposes set out in this Agreement.
12.10. The Company may use various technologies to collect and store information when you use the Product, and this may include using cookies or similar technologies to identify Your copy of the Product.
12.11. The Company uses Google Analytics, a web analytics service provided by Google, Inc. (e.g., to evaluate your use of the Product, compile reports on activity, and process collected information relating to the Product usage). Google Analytics uses first-party cookies that store information, such as time, previous usages, etc. Google Analytics data is classified as confidential information. Google Analytics product helps businesses and site owners analyze the traffic to and the usage of their apps and websites. For further information, You should refer to Company’s Privacy Policy at https://www.chaosgroup.com/privacy and the Google's privacy policy for further details.
12.12. This Agreement and any other terms referenced in this Agreement, as may be amended from time to time by the Company on its sole discretion, represent the complete and entire agreement between the parties regarding the subject matter hereof and supersede any and all prior proposals, agreements, representations and understandings between the parties, whether written or oral, regarding the subject matter hereof. The Product is licensed to You only upon condition that You accepts all of the terms and conditions contained and/or referenced herein. This is a license agreement and not an agreement for sale.
12.13. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
12.14. V-Ray and the V-Ray logo, Phoenix FD and the Phoenix FD logo, and ChaosGroup and ChaosGroup logo are registered trademarks of Chaos Software EOOD. All other brand names, product names, or trademarks belong to their respective holders.
12.15. Notices in connection with this Agreement will be in writing and will be sent by postal service or a delivery service. Notices will be effective when delivered and received by the Company at Company's head office address, which currently is: Chaos Software LTD EOOD, Mladost-1A, 147, Tsarigradsko shosse, 4th floor, 1784 Sofia, Bulgaria.
a. END USER LICENSE AGREEMENT
1. LICENSE TYPE
1.1. License Type will be clearly indicated in the relevant Product section and/or supporting documentation identifying the Product as
Advanced or Commercial, i.e., full, regular version of the Product or a special tailored edition created for the purposes of SketchUp Studio;
2. GRANT OF LICENSE
2.1. Subject to Your continuous compliance with the Agreement and the restrictions agreed between You and Trimble (or the Company), You are granted hereby, and You accept, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license:
a. to install the Product on as many of Your computers as You wish to, provided that You may not, as clearly stipulated hereunder in greater details, at the same time use the Product on more computers than the number of the available licenses authorized by the License Server;
b. to load the Product, to execute it, to use it, to transmit it to a distance, to keep it on a computer storage device;
c. to create a back-up copy of the Product, if that is needed for the specific use that the Product has been acquired for and You keep all copyright notices and other marks of ownership on each copy, or partial copy, of the Product. The back-up copy is for Your own internal use only and cannot be provided to any third parties;
d. to benefit commercially from using the Product in the authorized manner considering the restrictions in contained hereunder or in another agreement by and between the parties hereto;
e. to use the Product, as defined below, and to use up to the number of concurrent licenses of the Product as have been licensed and paid for at any one time considering applicable restrictions. The Product is in use for the duration that it keeps engaged a license from the license server;
f. to use the Product as may be additionally restricted and limited by SketchUp Studio terms and conditions, in this End User License Agreement, the Product section and/or supporting documentation.
2.2. Available Licenses (depending on the Product You choose to be licensed) may be some, either of the following or all of them:
2.2.1. For the Product:
Workstation license. One Workstation license entitles You to use the graphical user interface (GUI) of the Product (except VRscans plug-in) only on one computer or another technical device, respectively, at any one time and You may use only one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the GUI license is used, or on another machine in the network.
Universal Render node. One Universal Render node license entitles You to use one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time.
2.2.2. The term of each of the licenses acquired under the End User License Agreement is concurrent with the term of Licensee’s license to use SketchUp Studio.
3. PROTECTION MECHANISMS
3.1. The Product is protected through schemes or devices to control access and permit only the number of licenses acquired to be in use at one time and to prevent usage of unlicensed copies of the Product (“Protection Mechanism”) under the terms and conditions of the License Server Agreement part of the umbrella agreement.
4. SPECIAL TERMS AND CONDITIONS FOR TRIAL LICENSE
4.1. You may download a Trial License version for evaluation and, thereafter, if You liked the Product, order license under the terms and conditions stipulated above, i.e. You can try the Product before starting to pay a license fee. Even though a license fee may not be paid for the Trial License, it does not mean that there are no conditions for using the Product under Trial License. These additional and specific terms contained in this Section “Trial License” will apply whenever You choose to use the Product under Trial License.
4.2. The Product under Trial License can be either a fully- functional, time-limited version, or a feature-limited version, or a combination of these two types. Detailed description of the Trial License restrictions might be found hereunder, on a designated Company web site and/or on the Product user-guide.
4.3. Subject to Your full and continuous compliance with this Agreement and the restrictions stipulated anywhere in this Agreement, Company grants, and You accept, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license for mere evaluation purposes only. You are authorized to install, copy, and use the Product for the sole purpose of testing its functionality.
4.4. The product under this license type is provided free of charge only until it is a trial license. Continuous use of the product following expiration of the trial period, or any attempt to use the product following expiration of the trial period, are allowed only after payment in full of the attributable license fees. The specifics of the trial license exclude any refund request(s) concerning any linked license or otherwise referred license purchased for the purpose of using it together with the product. Inter alia, if a trial license is a time-limited, fully-functional version, allowing You to see and test all the features, licensee refund request will be declined if based on trial license claims concerning absence of certain feature(s) or if any feature doesn’t work as licensee expected it to work. All other refund cases, if any, are regulated by company warranty and limitation of liability policy and the terms and conditions agreed between you and Trimble.
4.5. You may not, in addition to any other restrictions contained elsewhere:
a. use the Product without payment of the attributable license fees after expiration of the Trial License.
b. benefit commercially from using the Product in the authorized manner.
4.6. The Trial License may be limited with a term and will be effective until terminated or You chooses to use the Product under the standard terms and conditions for the Product, in return for a license fee, stipulated in the other sections of this Agreement, whichever occurs earlier.
4.7. You may terminate the Agreement at any time by returning and/or destroying the Product, related documentation and all copies thereof.
4.8. Company may terminate the Agreement at any time. the Agreement will terminate immediately without notice from Company if You fail to comply with any provision of the Agreement.
4.9. Upon the termination of the Agreement for whatsoever reason, You will cease all use of the Product and destroy all copies, full or partial, of the Product.
4.10. Unless at the end of the Trial Period Company decides to extend the Trial Period or You elect to be licensed the Product in return for applicable fee, You accept to immediately stop using the Product and return and/or destroy the Product, related documentation and all copies thereof. If You retain the Product after the end of the Trial Period, Company will consider that You chose to be licensed the Product in return for an applicable fee, under the terms and conditions of the standard EULA for this Product. Payment of the applicable fees is due as from the day immediately following the end of the Trial Period, as instructed in details in the relevant invoice(s) of Trimble.
4.11. Sections (LIMITATIONS/RESTRICTIONS) (CONFIDENTIALITY AND NON-DISCLOSURE) (OWNERSHIP), (PRIVACY), (LIMITED WARRANTY), (DISCLAIMER), (LIMITATIONS OF LIABILITY) (OTHER PROVISIONS) will survive the termination of this End User License Agreement, howsoever caused, and this will not imply or create any continued right for You to use the Product or any part of the Product after termination of this End User License Agreement.
b. LICENSE SERVER AGREEMENT
The License Server is used to prevent usage of unlicensed versions or copies of particular Company's Product. For the purpose of this License Server Agreement "Product" shall mean any software program over which Company has intellectual property rights, and a copy of which You purchased from one of the Trimble affiliates or partners around the world, as part of Trimble SketchUp Studio, which entitles You to use the Product further to a distribution agreement by and between Company and Trimble.
In order to work properly, The License Server requires: i) an existing Hardware Lock/dongle, previously provided by Company directly; or ii) an internet connection to Company 's online licensing service; or iii) one or more software license files ("THE LICENSE FILES"), provided by Company.
By installing, accessing, or otherwise copying or using all or any portion of The License Server You agree to be legally bound by the License Server Agreement. If You do not agree to any or all of the terms in the License Server Agreement, You must not install, access, or otherwise copy or use the License Server or the dongle (if applicable) and must return them to the Company.
1. SCOPE
1.1. Grant of non-sublicensable, non-exclusive, non-transferable (except if the latter is permitted by applicable law) right and license:
a. to install the License Server, to load it, to view it on a computer screen, to execute it, to use it, to transmit it to a distance, to keep it on a computer storage device;
b. to create a back-up copy of the License Server, if that is needed for the specific use that THE LICENSE SERVER has been acquired for and You keep all copyright notices and other marks of ownership on each copy, or partial copy, of the License Server, if any. The back-up copy is for Your own internal use only and cannot be provided to any third parties;
c. to benefit commercially from using the License Server in the authorized manner considering the restrictions below.
1.2. The Company licenses to You the rights referred to above for 1 (one) copy of the License Server.
1.3. A copy of the License Server constitutes of all computer files provided to You by Company (including but not limited to installation files, binary executable files, library files, configuration files and documentation files).
1.4. By this License Server Agreement no intellectual property rights of Company, or other rights not specified herein, respectively, are being transferred or licensed to You.
2. RIGHTS AND OBLIGATIONS OF THE COMPANY
2.1. The Company shall have to furnish You via electronic way with the copies of the License Server whose rights for use, as defined above, are being licensed by the License Server Agreement.
2.2. The Company shall have to keep confidential any of Your trade secrets, as well as any other information or data the Company may become aware of during or in relation with the execution of the License Server Agreement, except where such information or data is required by applicable law.
2.3. The Company shall keep the right to make any changes, improvements and corrections it deems necessary to the License Server.
2.4. The Company shall not be responsible for any problems that may appear during or because of the use of the License Server.
2.5. The Company shall not be liable in case You are not able to use any or all of the License Server's features due to a force majeure (including, but not limited to short-circuits, power outages, internet network malfunctions, administrative limitations and others such as a war, strike, riot, crime, or an event described by the legal term "act of God" e.g., flooding, earthquake, etc.).
3. YOUR RIGHTS AND OBLIGATIONS
3.1. You shall not:
a. make copies or otherwise reproduce the License Server except for back-up copies made only for their own usage and which cannot be provided to any third parties;
b. replicate the dongle, if any;
c. use the License Server, the dongle and/or the license files to develop new software which is substantially similar to the expression of the License Server and/or the license files;
d. redistribute or give away in any way (lease, rent, lend, donate, exchange, share or other) the License Server,the dongle, and/or the license files to any third parties. You are not allowed to sell, transfer, assign or grant access to the acquired License Server, the dongle and/or the license files to a third party. You ensure that the License Server, the dongle and the license files are used only by You personally, in case You are an individual, or by Your employees, on Your behalf, in case You are a legal entity, and You are responsible for compliance with the terms of this License Server Agreement by Your employee;
e. The License Server, the dongle and the license files cannot be used for commercial render-farm service that provide third parties with contracted/on demand rendering services. Render-farm service providers will need a separate agreement with the Company;
f. make any translation, adaptation, arrangement and any other alteration of the License Server and/or the license files or make any reproduction, distribution, communication, display or performance to the public of the results of such acts;
g. adapt or reverse compile or reverse engineer the whole or any part of the License Server;
h. adapt or reverse engineer or otherwise tamper with the dongle and/or the license files;
i. remove or alter any copyright or other proprietary notice from the dongle and/or the license files;
j. use the License Server and/or the dongle and/or the license files in a manner that infringes any third party's copyrights or any other rights;
k. participate in any illegal, deceptive, misleading, unethical practices and activities which may be detrimental to the Company.
3.2. You shall notify the Company immediately if You becomes aware of any unauthorized use of the whole or any part of the License Server and/or the dongle and/or the license files by any third party. The notification shall be made to: contacts@chaosgroup.com.
3.3. You shall be entitled only to the rights specified in this License Server Agreement.
3.4. You shall be obligated to provide the Company with any information needed for the accurate completion of the License Server Agreement 's objective.
3.5. You shall be obligated to keep confidential any of the Company 's trade secrets, as well as any other information they may become aware of during or in relation with the execution of this License Server Agreement, except where such information is required by applicable law.
4. PROTECTION MECHANISMS
4.1. License Server may include one or more protection schemes to prevent usage of unlicensed copies of the Products, as follows:
a. the dongle, and/or
b. an internet connection to the Company's online licensing service, and/or
c. the license files
4.2. If the dongle proves to be defective within 24 months from the receipt, and the defect is not a result of physical damage, improper handling or any other improper use as specified by the manufacturer, the Company shall replace it after receiving the defective one. All shipping costs and any other taxes are to be covered by You.
4.3. The dongle and/or the license files may contain one or more licenses for different Products licensed by the Company to You. The total number of licenses to be put on the dongle and/or the license files must not exceed the number of licenses for said Products acquired by YOU. If You already have another dongle provided by the Company, You are not obliged to buy a separate dongle for each new license that You acquires. If You already have acquired license files provided by the Company, YOU is obliged to acquire separate license files for each new license that You acquire.
4.4. In case dongle is lost or stolen, You are allowed to acquire any available form of Protection Mechanism according to the prices set out by the Company. You will be charged additionally for the shipping costs and any other taxes. The Company keeps its right to refuse to replace a dongle at its own discretion.
4.5. Under the provisions defined above, if a dongle needs to be replaced, the Company keeps its right to provide You with a suitable replacement which may differ from the original.
5. DURATION AND TERMINATION
5.1. This License Server Agreement is effective until terminated.
5.2. You may terminate this License Server Agreement at any time by notifying the Company and, respectively, by destroying or returning License Server and/or the dongle and/or the license files ,and/pr related documentation and all copies thereof. Upon the termination of the License Server Agreement, You shall cease all use of License Server , use of the Company 's online licensing service and destroy or return to the Company all dongle , if any,
5.3. This License Server Agreement will terminate immediately without notice from the Company if You fail to comply with any provision of this License Server Agreement.
c. SWARM END USER LICENSE AGREEMENT
1. DESCRIPTION
1.1. The Product for the purposes of this SWARM End User License Agreement is a downloadable software application, marketed under the commercial title “Chaos SWARM”, that enables You to directly combine remote hardware and software resources when using V-Ray for SketchUp, and to manage such resources from Computer.
2. LICENSE
Further to Your purchase of Trimble SketchUp Studio You are hereby granted, subject to the additional terms and conditions of this SWARM End User License Agreement, a non-exclusive, non-transferable, personal license to:
2.1. Use the Product for Your own personal use only;
2.2. Install the Product on as many devices as You wish to (each of them considered a Computer), provided that, however, if used for communication to other software applications which may require additional licenses, You must ensure compatibility with the additional requirements, as the case may be; and
2.3. Make one copy of the Product In any machine readable form solely for back-up purposes, provided you reproduce the Product In its original form and with all proprietary notices on the back-up copy.
2.4. For clarity, the foregoing is not intended to prohibit you from installing and backing-up the Product For other devices on which you also agreed to the SWARM End User License Agreement. Each instance of this SWARM End User License Agreement that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Product on one device.
3. RIGHT TO TERMINATE OR MODIFY SOFTWARE
3.1. Company may modify from time to time the Product and this SWARM End User License Agreement with or without notice to You either in email or by publishing notice on its website, including but not limited to, changing the functionality or appearance of the Products. In the event Company modifies the Product or the SWARM End User License Agreement, You may terminate this SWARM End User License Agreement and cease use of the Product. Company may terminate your use of the Product, the SWARM END USER LICENSE AGREEMENT or any related product you may use with regard to the Product, at any time, with or without notice.
d. CHAOS SOFTWARE TERMS OF SERVICE
IMPORTANT. Please read these Terms carefully before You start using Services. You should keep a copy of these Terms for Your records.
These Terms of Service ("Terms") are a legal agreement for use of Services. You agree to these Terms on behalf of the company or other legal entity for which you are acting (for example, as an employee or contractor) or, if there is no company or legal entity, on behalf of yourself as an individual (in either case, "You"). You represent and warrant that You have the right, authority and capacity to act on behalf of and bind such entity (if any) and yourself. If you do not have the right, authority or capacity to legally bind You to these Terms, You do not have the right to access or use the Services.
You purchased from one of the Trimble affiliates or partners around the world, the Trimble SketchUp Studio set which entitles You to use the Service as defined below, further to a distribution agreement by and between Chaos Software LTD EOOD, EIK (company number) 204662149,Mladost-1A, block 548 entrance B, 2nd floor, Sofia 1729, Bulgaria, (“Company”), and Trimble.
Any and all access and/or use of the Services, as defined hereunder, by You will be governed by these Terms. By accepting these Terms during Your account registration or subscription process, or by using Your existing account after the implementation of the Terms, or by accessing or using the Services, You confirm Your acceptance of these Terms and Your agreement to be a party to this binding contract. If You do not agree to these Terms, You do not have the right to access or use the Services. If You do not agree to all of the terms and conditions of these Terms, You should not select the "I Agree" button or box (or other mechanism designed to acknowledge agreement) indicating that You have read and agree to these Terms and You are not permitted to access or use the Service. Nevertheless, any unauthorized use or access by You still constitutes agreement and consent to these Terms.
Definitions
The clause headings are included for convenience only, have no legal effect and shall be ignored when construing these Terms. Capitalized terms are defined in these Terms, or elsewhere in the other applicable terms and conditions accepted hereby by reference.
Unless otherwise stated, references to clauses or schedules are references to the clauses or schedules of these Terms, references to these Terms include its schedules and references to paragraphs within a schedule are references to the paragraphs of that schedule.
Words importing the singular include the plural, and the opposite applies, and words importing any gender include the other genders.
References to persons include individuals, firms, partnerships, limited liability partnerships, companies, corporations, associations, organizations, governments, governmental agencies and departments, states, foundations and trusts (in each case whether or not having separate legal personality) and corresponding or similar entities in any relevant jurisdiction.
Reference to any statute includes a reference to any subordinate legislation and to any amendments, consolidation, extension or re-enactment of that statute or subordinate legislation.
The use of the words "including" or "include" shall not limit the general applicability of any preceding words.
"Additional Agreement" means an agreement (1) for an Other Chaos Product (if any) or (2) that You and Chaos otherwise agree in writing constitutes an Additional Agreement and includes certain terms and conditions for access or use of the Service or Software. Additional Agreements include, without limitation, the EULA, SLA, Subscription Terms and Membership Terms as applicable.
"API" means the standard applications programming interface information generally provided by Chaos to users of the Offering that specifies the requirements for interfacing to the Service or Software included in such Offering. API does not include any implementation of such interface information, any Materials or Software.
"Beta" or "Trial": Offerings identified as "Beta", "Labs" or "Pre-Release" or made available as "free" or "trial" in other testing mode, or without requirement of payment for an Other Chaos Product ("Free Services", in the meaning of Services provided without obligation for payment or any additional consideration, other than receiving Feedback, or other valuable consideration which tangible value may not be easy to estimate), may be subject to additional terms and conditions that appear in connection with Your use of the Free Services and are incorporated into these Terms by reference. Beta or Trial specific terms and conditions include, without limitation, that when You are offered Beta or Trial Offering/ Service:
You are entitled to participation based on Your commitment to participate and test the Beta or Trial Offering/ Service, where lack of sufficient participation is a good and sufficient cause for Chaos to remove You from the Beta or Trial service;
You are entitled to a single account only, whilst Chaos at its discretion may renew Your account upon expiration and/or enable additional account(s) of Your;
Generally, You may use Offering/ Service solely for Your internal, non-productive business purposes, and solely: (a) to evaluate the technical and commercial viability of the Offering/ Service; (b) to evaluate the reliability and functionality of the Offering/ Service in a working environment; (c) to determine whether the features of The Offering/ Service perform as designed and are useful; (d) to determine whether the Offering/ Service will work for its intended purpose; and (e) to create and provide to Chaos voluntary suggestions and technical Feedback regarding the Offering/ Service, including suggestions regarding viability and functionality of the Offering/ Service. If You submit Feedback or suggestions about the Offering/ Service, Chaos may use Your Feedback or suggestions without obligation to You;
Parties acknowledge and agree that either party hereto (the "Disclosing Party") may disclose to the other party (the "Recipient") certain business and/or technical information of a confidential and proprietary nature. "Confidential Information" means any proprietary information, trade secret or other non-public information that Disclosing Party delivers or communicates to the Recipient or to which the Recipient otherwise gains access to hereunder. Confidential information may be used only internally and only in conjunction with and for Recipient's own authorized internal use. Recipient shall maintain the confidentiality of the Disclosing party's Confidential Information and may not disclose, distribute or otherwise provide it to third parties, except in cases where such information is required by applicable law or court order and a prompt advance notice to Disclosing party has been sent to enable the latter to seek a protective order or otherwise prevent such disclosure.
"Chaos Parties" means Chaos and its affiliates, agents and suppliers and each of their respective officers, directors and employees.
"Claim" means any claim, suit or proceeding arising out of or in connection with: (1) Your Content/ Result or use of Your Content/ Result, including, without limitation, any assertion that Your Content/ Result or the use thereof may infringe any copyright, trademark, or other intellectual property or other rights of any individual or entity, or are a misappropriation of any individual or entity's trade secret, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials or use thereof caused death or bodily injury or damage to the real or tangible property of any third party; (2) any breach of or failure by You or Your Users to comply with applicable laws, these Terms or any Policies or Additional Agreements; or (3) use of the Offering by You (or anyone who accesses the Service through You).
"Client Software" - access to the Service may require use of one or more Software programs (such as upload tools, etc.) that are made available for download by Chaos and are designed to be installed and used on a Computer, as a free or paid program as may be instructed from time time by Chaos, for the purposes of enabling use of the Service.
"Computer" means (1) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (2) a software implementation of such a device (or so-called virtual machine, if specifically allowed for use with regard to Software and/or Offering by Chaos); or (3) a mobile device designed for processing digital or similar information.
"Content" means, collectively, (a) any files, designs, models, data sets, images, documents or similar material submitted or uploaded to the Service by You ; (b) any software application, plug-in and other computer program or similar material (including any modules and components, functions and features of a computer program) developed by You using the API and/or Materials.
"Documentation" means any technical requirements and end-user documentation for the Service made available to You by Chaos.
9a. “Educational” or “Academic” is an Offering limited to Your educational purposes only. Whenever You are provided an Educational, also referred to as Academic, Offering, You acknowledge, understand, recognize and agree that it is an Offering limited to Your educational purposes, and is only available for licensees that are academic or educational institutions or individuals that are students or educators. Academic or educational institutions are defined as those dedicated to education, including public and private universities, colleges, junior colleges, elementary, middle, high schools, and technical schools which are accredited by a state or other appropriate governmental agency or organization. Student/ educator is a person who can confirm enrollment / employment at a degree-granting educational institution. The Company may decide not to charge a full license fee and this, plus additional relevant terms and conditions, will be clearly indicated in the relevant Offering section.
"Effective Date" means the date You first agree to these Terms and these Terms, and/or any of their further amendments, become effective on.
"Entitlements" means Your entitlement(s) to use the Service (such as maximum capacity, transactions, output, hours or other measurements of use, term or duration and any other entitlements specific to such Service) as determined by the Other Chaos Product, stand-alone Service or type or level of Subscription or Membership You subscribed to or licensed. Entitlements also include any other information about entitlements to access and use the Service which are set forth on the Entitlement Site and Portal (including, without limitation, the description of the Service, Documentation and minimum technical requirements for the Service).
"Entitlement Site" means a website owned or operated by or for Chaos through which You can view Your specific Entitlements. For some Services, access to the Entitlement Site may be through functionality within Your Other Chaos Product or Service.
"EULA" means the end user license agreement(s) provided or referenced by Chaos in connection with the Other Chaos Product to which the use of Software is subject to.
"Feedback" means any suggestions, feedback, improvement requests or other recommendations You or Your Users provide, relating to the Services, Content and/or Result.
"Materials" means SDKs (software development kits) and other toolkits, libraries, scripts, reference or sample code, and similar developer materials included in the Offering.
"Metrics" means information about You and Your use of the Offering (which may include storage space used, features of the Service used, metadata, index and similar information about the content stored, processed or accessed using the Offering and similar information). Metrics also includes information about You and Your users that You provide in connection with Your use of the Offering, including Personal Information (the collection, storage and use of which will be subject to the Privacy Policy).
"Membership" means a membership or subscription that You purchased that entitles You (in addition to other benefits) to access and use the Service.
"Membership Terms" means the terms for a Membership that may be set forth by Chaos, as they may be modified from time-to-time by Chaos in accordance with its terms.
"Offering" means the Service and any and all content, sample data sets, sample models or other sample content, information, data or materials provided by Chaos hereunder or viewed or generated in connection with the Service (including, without limitation, any output, Results, recommendations or projections based upon Your Content or otherwise) or any related subject matter.
"Order Form" means a form completed by or on behalf of You and submitted to Chaos (or by a reseller or distributor authorized by Chaos), directly or indirectly, in connection with Your order for the Service or an Other Chaos Product.
"Other Chaos Product" means any additional Chaos Product that You acquired, licensed, joined or subscribed to which entitles You to access and use the Offering. An Other Chaos Product may be (1) a stand-alone product or service, (2) a Subscription, (3) a suite of products and/or services; or (4) a Membership.
"Personal Data" or "Personal Information" has the meaning set forth in Chaos Privacy Policy and/or governing laws.
"Policies" mean any and all other terms and conditions which may be incorporated into these Terms by reference.
"Portal" means the website(s) owned or operated by or for Chaos that is associated with the Service.
"Privacy Policy" means Chaos's [Privacy Policy](https://www.chaosgroup.com/privacy) as currently available at Portal, as it may be modified from time to time in Chaos's sole discretion.
"Result" means Your specific output generated from the Service, if any, based on Your own Content, i.e. raw input data or information.
"Service" means a web-, or cloud-based, free or paid, service requiring a connection to the Internet and that Chaos makes available through an Other Chaos Product or the Portal.
"SLA" means any service level agreement that Chaos may make available to You in connection with the Service. Generally available service level agreements, if any, will be posted on Portal or any successor or supplemental web page of Chaos, as they may be modified from time to time.
"Software" means any computer program or similar material, including any modules and components, functions and features of a computer program, made available by or for Chaos for use as part of the Service (whether by download or as a hosted solution).
"Special Terms and Conditions" means any additional specific terms and conditions for access and use of a particular Service which may be set forth by Chaos at a location where a user may order or register for, or that is displayed in connection with ordering or registering for, such Services (e.g., a web page) or, if there are no such terms, at any web page of Chaos, as they may be modified by Chaos from time-to-time in its discretion.
"Subscription" means a subscription, if available, that You purchased to a Chaos product that entitles You (in addition to other benefits) to access and use the Service.
"Subscription Terms" means the terms and conditions applicable to a Subscription set forth by Chaos, as they may be modified from time-to-time by Chaos in accordance with its terms.
"Terms" means, collectively, these Service Terms and the Special Services Terms, Entitlements and Policies, and other terms and conditions referred to hereunder.
"Third Party Materials" means any files, content, designs, models, data sets, project information, materials, documents, computer programs or similar material (including, without limitation, any modules and components, functions and features of a computer program), media, audio, images, names, email addresses, comments, notes, links and other content, data, information, applications and services made available to You by any third party through or in connection with a Service or any website owned or operated by or for Chaos.
"Users" or “Your Users” means cumulatively: a) Your individual employees and Your consultants, contractors, agents and others b) with whom you conduct business, including but not limited to, for the internal purposes of Your enterprise, c) for whom You have purchased Subscriptions to a Service, and/or d) who access and use the Service for Your benefit or as part of Your project, and/or for their own benefit based on Your assignment.
1. SUBJECT MATTER
1.1. Subject to Your compliance at all times with these Terms, Chaos will provide You the Services, and You may access and use the Service, and You may permit the Service to be accessed and used by Your Users, provided all such access and use is solely for Your internal enterprise business purposes and is in the form made accessible and/or provided by Chaos.
1.2.These Terms supplement any other agreements You may have with Chaos, including Additional Agreements and Policies. These Terms apply to various Chaos services. Any specific terms or entitlements that apply to a particular service may be set out in Special Terms and Conditions of Service, the terms of which are incorporated here and are part of the Terms applicable to the Service.
1.3.All payments and fees, if any, for the Services are subject to the applicable terms and conditions governing payments between You and Chaos and/or a third party payment provider, authorized reseller and/or merchant.
2. RESTRICTIONS AND LIMITATIONS
2.1. This is an intuitо personae contract for Service that is personal to You, and You may not personally, nor You may permit any third party to:
(1) distribute, rent, loan, lease, sell, resell, sublicense, or otherwise transfer all or any portion of the Offering, your rights with respect to the Service or Your Entitlements or any part of these Terms, to any other person or legal entity;
(2) remove, alter, or obscure any copyright, trademark, confidentiality or other proprietary notices, labels, or marks from or on the Offering or modify, translate, adapt, arrange, or create derivative works based on the Offering, except as permitted in the Entitlements or Special Terms and Conditions;
(3) decompile, disassemble or otherwise reverse engineer the Offering, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Offering;
(4) use the Offering as a render-farm, service bureau or enable use or access of the Offering other than by Users;
(5) use the Offering in excess of, or in any manner inconsistent with, Your Entitlements or in violation of a law or regulation;
(6) interfere with or disrupt the Service, or servers or networks connected to any website through which the Service is provided;
(7) use the Offering as storage for remote loading or as a door or signpost to another home page, whether inside or beyond the site through which the Services are provided;
(8) use the Offering to perform any stress, vulnerability, penetration, availability, or performance testing on, or otherwise attempt to access in a manner not expressly permitted by Chaos, any network, system, server, or computer hosting the Service or related Software, or use the Service for any other benchmarking or competitive purposes or attempt to create a similar service through use of the Services or related Software;
(9) use the Offering to collect or store personal data about any person or entity, including but not limited to other users of the Service, to collect or store content that may be subject to third party rights for which you have no valid license for the entire period of data processing, or content that may be prohibited for processing by mere operation of law, except as otherwise specifically permitted in the Special Terms and Conditions or Documentation and subject to any related restrictions;
(10) use the Software or access or use the Offering except as expressly set forth in these Terms; or
(11) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Chaos in connection with the Offering or access the Offering with any code, serial number, or other copy-or access protection device not supplied by Chaos directly or indirectly. Chaos has the right (but not the obligation) to monitor and audit Your (and Your Users') usage of the Service to verify compliance with these Terms. Any use or access other than in accordance with these Terms is unauthorized.
2.2. No access or use by others is allowed, unless specifically designated by Chaos. You are responsible for compliance with these Terms by Your Users and any other persons who may have access to the Service through You. You shall make sure that Your Users agree to these Terms before they access and use the Service. You may not sell or offer to resell the Offering in whole or in part.
2.3. You understand that certain Services or Offerings may not be available in all locations, may require You to purchase a membership or subscription or pay additional fees and may not be available in all languages. You are responsible for administering any of Your own rules for access to Your site or Your Content/ Result by Your Users. Chaos is not responsible for enforcing any such rules.
2.4. If Chaos is made aware or believes in good faith that Your Content/ Result or conduct, or that of Your Users may:
(1) violate these Terms (including, without limitation, any Policy or Additional Agreement),
(2) violate any law, regulation, or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander, and invasion of privacy,
(3) pose a security risk to the Service or any users of the Service, or otherwise adversely impact the Service or the systems or the content of any other user, or
(4) subject Chaos or any third party to liability,
Chaos has the right, but not the obligation, upon its free discretion to immediately disable or suspend access to Your Content/ Result and/or suspend Your access to the Offering (or take other action as may be required to comply with law) without notice to You. You acknowledge and agree that Chaos also may suspend or terminate Your access to the Offering if any information You provide to Chaos in connection with Your registration for, or use of, the Service is or becomes false, inaccurate, obsolete or incomplete. Chaos may remove any content that is posted to the Service without notice if it believes that such content exceeds Entitlement or (if the Entitlement does not specify) reasonable storage limits.
3. PREREQUISITES AND REQUIREMENTS
3.1. Internet access may be needed at all times, and creation or log into an account may be needed to use the Service. You and Your Users shall not share any user ID or passwords provided to You hereunder, and You agree not to allow anyone else to access Your account or Your site (except if expressly allowed by Chaos) or do anything else that might jeopardize the security of Your account.
3.2. You are solely responsible for arranging and paying any cost for Internet or other network access, equipment, software, services and other resources required for You to access and/or use the Service, including, without limitation, Internet service provider fees, telecommunications fees, and the costs of any equipment and third-party software (including, without limitation, encryption and other security technology). Chaos may not be responsible for the support of Your access and will not be responsible for the reliability, security or performance of any access.
3.3. Services may NOT be available in all countries or locations now or in the future. These terms do not change any territorial restrictions applicable to Your use of any Other Chaos Product.
4. CONTENT AND RESULT
4.1. Services may allow You to upload, submit, store, send or receive Content. You retain ownership of any intellectual property rights that you hold in that Content. In short, what belongs to You, stays Yours. You shall maintain ownership of, but also responsibility for Your Content, Result and responsibility for Your conduct while using the Offering. You agree that Your Content, Result and Your (and Your Users) conduct in using the Offering will comply with all applicable laws, rules and regulations and all other Terms.
4.2.1. By creating, submitting, posting or otherwise making Your Content or Result available to Chaos and/or others, You acknowledge and agree that:
(1) You will evaluate and bear all risks associated with Your Content and Result; and
(2) under no circumstances will Chaos Parties be liable in any way for Your Content as You upload or submit it, and/or Result, including, but not limited to any errors or omissions. Without taking away from Chaos's obligation to provide the Services as described in Your Entitlements, You are encouraged to practice effective data retention practices, to maintain copies on Your own computer or local network, to use the latest encryption and other security technology to protect Your Content and Result, and to back up and protect the security and confidentiality of Your Content and Result, as applicable to the Service. You and its Your Users may be exposed to Content and/or Result that are indecent, offensive or otherwise objectionable.
4.2.2.Chaos personnel will not access Your Content and/or Result except
(a) as part of providing, maintaining, securing or modifying Services,
(b) at Your request or with Your consent as part of addressing or preventing a service, support or technical issue, or
(c) in connection with legal obligations or proceedings in accordance with the relevant provisions hereunder.
4.2.3.Use of Your Personal Information will be as set forth hereunder and/or in the Privacy Policy. Chaos does not own Your Content or Result. You acknowledge that provision of the Service necessarily involves technical access, processing and transmission of Your Content, Result and Metrics related to use of the Service.
4.3. IF YOU CHOOSE TO SHARE YOUR CONTENT, OR RESULT, OR MAKE YOUR CONTENT OR RESULT AVAILABLE TO THIRD PARTIES OR OTHERWISE IN CONNECTION WITH THE SERVICE, YOU DO SO AT YOUR OWN RISK. Some Services may permit You to share Your Content or Result, or publish Your Content or Result to third parties, using any technically available means or tool, or to other products or services directly or indirectly through other software. You acknowledge that if You choose to share or publish Your Content or Result (whether by emailing, sharing a link, submitting to a software application for access to a service, posting in a forum or other public areas or in shared areas available to other users You have chosen, or by any other available sharing mechanism), that anyone You have shared Your Content or Result with (including in some cases the general public) may be able to use, reproduce, manipulate, distribute, display, transmit, and communicate Your Content or Result. Sharing and submissions are non-confidential. If You do not want others to have those rights, do not use the Service to share Your Content or Result or set Your permissions accordingly. You are responsible for the administration of access to Your Content or Result by Your Users including granting and terminating access. You acknowledge that in some cases, a user You have granted access to may have the ability to copy or transfer or save Your Content or Result outside of the Service and suspending or terminating access will not delete or inhibit access to content that was earlier copied or transferred. You waive "moral" rights or other rights with respect to attribution of authorship of Your Content. Chaos Parties have no control over and shall have no liability for any damages resulting from the use or misuse by any third party of Your Content or Result that You choose to share, directly or indirectly, or any kind of a discussion or through any service or software.
4.4. When you upload, submit, store, send or receive Content to or through the Service, You give Chaos (and those working with Chaos) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your Content works better with the Service), communicate, publish, publicly perform, publicly display and distribute Content. The rights You grant in this license are for the limited purpose of operating, promoting, and improving Service, and to develop new ones. This license continues even if You stop using the Service. Service may offer You ways to access and remove Content that has been provided to Service. Also, there might be settings that narrow the scope of Chaos use of Content submitted in Service. Make sure You have the necessary rights to grant us this license for any Content that you submit to the Service. Our automated systems analyze the Content to provide Chaos clients personally relevant product features. This analysis occurs as the Content is sent, received, and when it is stored.
4.5. Within thirty (30) days following the end of the term of Your Services ("Result Retrieval Period"), You may request retrieval of Your Result from the Services by Chaos. Provided You have paid all amounts due in connection with the Service, Chaos will, at Chaos's election, either (1) grant You limited access to the Service for the sole purpose of allowing You to retrieve Your available Result or (2) make such Result otherwise available to You, each of (1) and (2) at Chaos's then-current daily professional services rates.
4.6. If You destroy or delete Your Result and/or Content from the Service, as a consequence of the Service or for a different reason, You understand Content may survive and persist in backup copies. In addition to Chaos's rights to delete Your Content upon expiration or termination of these Terms, Chaos has the right (but not the obligation) to delete Content, Result and/or inactive sites or accounts or purge related data (and all backups thereof), without further notice and without liability for deletion or failure to store such data. Chaos Parties shall have no responsibility or liability for deletion based on Your settings or actions or inactions or for any failure to delete Your Content.
4.7. Services will be provided using processes and safeguards which are designed to help maintain the security of Your Content and/or Result that are economically appropriate for the Services. Chaos from time to time may have external auditors to verify Chaos adherence to Chaos security controls applicable to certain Chaos services.
5. SERVICE LEVEL AGREEMENT, UPTIME AND AVAILABILITY
5.1. Chaos will make the Service available to You and Your Users consistent with the manner in which Chaos makes the Services generally available to users of the Service. Chaos shall provide support services via email, during regular business hours and will endeavor in good faith to respond to customer support inquiries within two (2) business days, provided that both conditions are met: You and Users have installed the most current updates of the Software and You and Users are not running a beta version of the Software, Client Software, Portal and/or the Offerings.
5.2.Any SLAs which may be available in connection with the Service will be Additional Agreements and the credits (if any) set forth in any SLA will be Your sole and exclusive remedy for Chaos' failure to meet the identified service levels. Not all Services will have SLAs. Chaos does not make any representations or guarantees related to uptime or availability of the Offering, except as specifically identified in the applicable SLA, if any.
6. THIRD PARTY MATERIALS
6.1 Services and Offerings may be accompanied, may contain or Chaos may provide from time to time other own and/or Third Party Materials, including but not limited to, software, drivers, data, documents, materials, etc. Third Party Materials may include, be subject to or provided in accordance with other terms in addition to or different from the terms set forth in these Terms. Unless such terms are included or specifically referenced, Third Party Materials are subject to these Terms. In case such terms apply You agree to comply with them.
6.2 You will take sole responsibility for acquiring and complying with any licenses that may be necessary to use or to use in a different way any Third Party Materials, software, data, documents or other materials, etc. You acknowledge and agree that Chaos has no responsibility for, and makes no representations or warranties regarding, such Third Party Materials, software, data, documents or other materials or Your use of such Third Party Materials. Chaos may at any time, for any reason, modify or discontinue the availability of any Third Party Materials.
7. PROPRIETARY RIGHTS
7.1.1. You acknowledge and agree that Chaos and its licensors own all right, title, and interest (including, without limitation, patents, copyrights, trademarks, trade secrets, and all other intellectual property rights) in and to the Service, Software, API, Materials, Metrics, Documentation, Portal, Entitlement Site, sample data sets, sample models or other sample content and any information, data or materials provided or used in connection with, or generated by, the Service (NOTE: excluding Your Content and Result).
7.1.2. You agree not take any action to jeopardize, encumber, limit, or interfere in any manner with Chaos's or its licensors' ownership and rights with respect thereto.
7.1.3. Chaos does not grant You any right to use its trademarks, trade names, or logos.
7.1.4. You have only the limited rights to use the Offering as are expressly granted to You under these Terms and no other rights are granted or conveyed, or shall be deemed to be granted conveyed, whether by implication, estoppel, or otherwise. Your access is to a service. No license to Chaos software other than to Client Software and Materials expressly for use with the authorized use of the Service is granted by these Terms.
7.1.5. Chaos will have (and You grant) a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any Feedback.
7.2. You acknowledge and agree that any API and Materials (unless otherwise specified by Chaos in additional or different terms associated with such API or Materials):
(1) are Chaos Confidential Information and proprietary to Chaos;
(2) may not be distributed, disclosed or otherwise provided to third parties;
(3) may be used only internally and only in conjunction with and for Your own authorized internal use of the Service to which the API or Materials relate, such as the development and support of services, applications, modules and components to operate on or with such Service; and
(4) may only be used on the same Computer(s) where such Services are permitted to be used.
7.3.1. There may be Client Software involved in Your use of the Services. Access to the Service may require use of one or more
(1) Software programs that are made available for download by Chaos and are designed to be installed and used on a Computer for the purposes of enabling use of the Service or
(2) Other Chaos Products. Use of all Software is subject to the relevant EULA.
7.3.2. In case of Client Software, the following terms shall apply, if there is no specific separate EULA in place: subject to the compliance of the terms and conditions of these Terms at all times, and the payment of all fees (if any) related to Your use of the Service, Chaos hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited right and license, during the Term, to:
(a) make one (1) copy of the Client Software (and that portion of the Documentation directly related to the Software) for backup purposes only (provided that all titles, trademarks, and copyright and restricted rights notices are reproduced in or on all such copies);
(b) install the Client Software solely on Computers owned or controlled by You or Your Users; and
(c) use the Client Software, in each instance solely for purposes of using the Service in accordance with these Terms in accordance with the Documentation, and solely for Your own internal business purposes.
7.3.3. Except as set forth in this section, no other right or license of any kind is granted to You with respect to the Client Software. As a clarification, all of the Restrictions applicable to the Other Chaos Product and the Offering apply to the Client Software and Your use of the Client Software is also subject to the disclaimers, limitations and the Export Laws referenced hereunder.
8. PRIVACY AND CONFIDENTIALITY
8.1.1. You acknowledge and agree that in order to acquire and use the Services, Offerings, Software and other valuable offerings that may be embodied in the Entitlement, You (and third parties acting on Your behalf) may have to provide, and Chaos (or third parties acting on behalf of Chaos) may acquire, collect, use, process, and storage Your Content and Personal Data. By accepting these terms You consent to the collection, use, processing, and storage of Your Content and Personal Data as may be further described in the then-current Privacy Policy, including cross-border transfers as may be further described in the Privacy Policy. The Privacy Policy is incorporated into these Terms by this reference.
8.1.2. Chaos is a registered data administrator (Bulgarian Personal Data Protection Act (01 Jan. 2002 and as amended from time to time)) and as such Chaos takes appropriate technical measures to protect Your Personal Data. You acknowledge and agree that You are responsible for compliance with all applicable privacy and data protection laws related to Personal Information provided to Chaos in connection with use of the Service by You or Your Users or personnel, including any applicable requirements related to notice, consent, transfer (including cross-border transfer), disclosure, and use of Personal Information in connection with the Service, including as described in the Privacy Policy. Without limiting the foregoing, You will ensure that You have obtained consents, to the extent necessary, to provide Personal Information to be transferred to, collected, stored, used and otherwise processed by Chaos and its service providers, and that any individual who accesses or uses the Service has been made aware of the Privacy Policy.
8.1.3.You acknowledge that Chaos may use third-party service providers in connection with the Services, including without limitation the use of cloud computing service providers which may transmit, maintain and store Your Content/ Result and data using third-party computers and equipment in locations around the globe. You acknowledge that any data storage functionality associated with the Services is not intended for the storage of sensitive personal information such as Social Security numbers, credit or debit card numbers, financial account numbers, driver's license numbers, medical information, health insurance information, sensitive data about personal characteristics such as race, religion, or sexual orientation, or other personal data that may pose a risk of harm to the individual if improperly disclosed. You agree not to upload or otherwise submit any sensitive personal information in connection with the Service and further agree that Chaos Parties will have no responsibility or liability with respect to any such sensitive personal information that is processed, transmitted, disclosed, or stored in connection with the Service.
8.1.4 Chaos will keep Your personal information and data for as long as necessary to fulfil the above purposes or as required by law. You may modify and correct incomplete or inaccurate data at any time by notifying Chaos of any change to [dpo@chaosgroup.com](mailto:dpo@chaosgroup.com).
8.2. Software, Materials and Offerings may contain technology to collect anonymous usage data, including but not limited to render times, settings and used features. Usage data will not contain any information that may be used to identify You or Your Users personally. However, such technology may inadvertently collect information which may identify you as an individual or organization, in which case the data privacy rules will apply. Usage data will be collected only after explicit authorization by You and Your Users and can be reviewed and disabled by You and Your Users at any time. Usage data in raw or aggregated form may be transmitted to third party servers over the Internet, which may be or may be not under control of Company. Company may generate and publish summary reports based on the data obtained. Such reports may be made available in machine readable format to third parties for further analysis, generally for the purpose of improving the quality of the products and the services provided by Company to You and Your Users, or the public.
8.3.1.You or Chaos acknowledge and agree that either party (the "Disclosing Party") may disclose to the other party (the "Recipient") certain business and/or technical information of a confidential and proprietary nature in connection with the Services. "Confidential Information" means any proprietary information, trade secret (organization, structure, object or source code of the Software, etc. any API, Materials, libraries, reference, sample code etc.) or other non-public information that Disclosing Party delivers or communicates to the Recipient or to which the Recipient otherwise gains access to under these Terms. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and any Additional Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors, service providers and agents who need such access for purposes consistent with these Terms and any Additional Agreement, and who are subject to confidentiality obligations with the Receiving Party containing protections no less stringent than those herein.
8.3.2 Confidential Information shall not include any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) is received from a third party without breach of any obligation owed to the Disclosing Party; (4) was independently developed by the Receiving Party; (5) Metrics; or (6) Feedback.
8.3.3 Confidential information may be used only internally and only in conjunction with and for Recipient's own authorized internal use agreed hereunder within the scope of these Terms and any Additional Agreement. Recipient shall maintain the confidentiality of the Disclosing Party's Confidential Information and may not disclose, distribute or otherwise provide it to third parties, except in cases where such information is required by applicable law or court order and a prompt advance notice to Disclosing party has been sent to enable the latter to seek a protective order or otherwise prevent such disclosure.
9. INDEMNIFICATION AND WARRANTIES.
9.1. You shall, at Your sole expense and to the fullest extent permitted by law, indemnify, defend (at Chaos's request), and hold harmless Chaos Parties against any and all losses, liabilities, expenses (including reasonable attorneys' fees) suffered or incurred by Chaos Parties by reason of any Claim. If requested by Chaos to defend a Claim, You will not agree to any settlement without the prior written consent of Chaos, and Chaos shall have the right to participate, at its own expense, in the defense of any Claim with counsel of its own choosing.
9.2. You acknowledge and agree that:
(1) You have the requisite rights to submit, develop and use Your Content/ Result in connection with the Service;
(2) Your Content/ Result does not infringe or misappropriate any intellectual property or proprietary right of any third party or violate any applicable laws, rules or regulations;
(3) Your Content/ Result is not subject to any restriction on disclosure, transfer, download, export or re-export under any applicable law, rule or regulation; and
(4) any information You provide in connection with Your registration for, or use of, the Service is and shall remain true, accurate, and complete, and that You will maintain and update such information regularly.
10. DISCLAIMER OF WARRANTIES. LIMITATION OF LIABILITIES. OTHERS
10.1.NOTWITHSTANDING ANY WARRANTY APPLICABLE TO THE SOFTWARE IN THE EULA, THE OFFERING IS PROVIDED "AS IS" AND "AS AVAILABLE." CHAOS PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE OFFERING, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. YOUR USE OF THE OFFERING IS AT YOUR OWN DISCRETION AND RISK. CHAOS PARTIES DO NOT WARRANT THAT ANY USE OF OR ACCESS TO THE OFFERING WILL BE ERROR-FREE, COMPLETE, SECURE OR THE CONTENT/ RESULT WILL NOT BE OTHERWISE LOST OR DAMAGED OR MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT OPERATION OR AVAILABILITY WILL BE UNINTERRUPTED; OR THAT ERRORS OR FAILURES WILL BE CORRECTED OR REMEDIED. CHAOS PARTIES DO NOT WARRANT THAT THE OFFERING WILL PERFORM IN ANY PARTICULAR MANNER. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND CHAOS PARTIES ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) (1) THE DECISIONS THAT YOU MAY MAKE REGARDING THE OFFERING; (2) USE OF THE OFFERING INCLUDING ANY CONTENT, RESULT, DATA, INFORMATION, OR OTHER MATERIAL ACCESSED BY YOU IN CONNECTION WITH THE OFFERING INCLUDING, WITHOUT LIMITATION, IMPACT TO YOUR COMPUTER SYSTEM OR LOSS OF DATA; OR (3) ANY EFFECTS ON YOUR BUSINESS THAT MAY RESULT FROM SUCH USE. CHAOS PARTIES MAKE NO WARRANTIES TO ANY THIRD PARTY. CHAOS PARTIES DO NOT REPRESENT OR WARRANT THAT THE OFFERING IS OR WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. This Section will be enforceable to the maximum extent allowed by applicable law. No information or advice (whether written, oral or otherwise) provided by Chaos Parties or their representatives will create any warranty or in any way affect the disclaimers of warranty or limitations of liability expressly provided in these Terms.
10.2. THE OFFERING IS NOT A SUBSTITUTE FOR YOUR OWN JUDGMENT (INCLUDING PROFESSIONAL JUDGMENT) OR INDEPENDENT TESTING, DESIGN, ESTIMATION OR ANALYSIS, AS APPLICABLE. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE OFFERING, THE OFFERING HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED AND MAY NOT ACHIEVE THE RESULTS YOU DESIRE. WITHOUT LIMITATION OF SECTION "CONTENT AND RESULT" OR DISCLAIMERS, CHAOS PARTIES SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY RESULTS OR OUTPUT OBTAINED OR OTHERWISE VIEWED THROUGH THE OFFERING OR ANY MATERIALS DEVELOPED BY YOU IN CONNECTION WITH THE OFFERING. YOU ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF USE OF THE OFFERING. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE OFFERING AND THE SELECTION OF THE OFFERING AND OTHER PROGRAMS TO ACHIEVE YOUR INTENDED RESULTS. YOU ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY, ACCURACY AND COMPLETENESS OF SERVICE RESULTS, OUTPUT OR MATERIALS DEVELOPED BY YOU IN CONNECTION WITH THE OFFERING (IF ANY), INCLUDING ALL ITEMS VIEWED OR DESIGNED USING THE OFFERING. THERE ARE NO SERVICE LEVEL AGREEMENTS MADE IN CONNECTION WITH THE OFFERING EXCEPT AS MAY BE EXPRESSLY REFERENCED IN THE ENTITLEMENTS.
10.3.TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (1) IN NO EVENT WILL CHAOS PARTIES BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR ANY OTHER DAMAGES OF LIKE KIND WHATSOEVER (HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE), INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER COVER, OR ANY OTHER SIMILAR COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR WILL ANY OF THE FOREGOING PARTIES 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; AND (2) THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF CHAOS PARTIES FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS HOWEVER CAUSED OR ARISING FROM OR IN RELATION TO THE OFFERING SHALL NOT EXCEED (a) ALL AMOUNTS PAID OR DUE FROM YOU FOR ACCESS TO THE OFFERING GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM (NO MATTER WHEN PAYMENTS WERE ACTUALLY MADE), OR (b) ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
10.4.The parties agree that releases, waivers, warranty disclaimers, limitations of liability and indemnities in these Terms are a fundamental basis of the bargain between You and Chaos, and are a material part of the consideration received by Chaos for the provision of the Offering under these Terms, and Chaos would not have entered into these Terms and provided the Offering in the absence of such releases, waivers, warranty disclaimers, limitations of liability and indemnities.
11. TERM AND TERMINATION
11.1.These Terms shall become effective on the date You first agree to these Terms.
11.2.The term of the Agreement ("Term") shall extend from the Effective Date until this Agreement is terminated or expires. If the Service or the Term is renewed or extended, it will be under the then-current Terms. You acknowledge that Your commitments with respect to the Services are not contingent on delivery of future service features or functionality (or oral or written statements about future features or functionality).
11.3.Unless earlier terminated in accordance with this Section, these Terms shall automatically terminate on the first to occur of (1) the date or end of the term of the Service identified in Your Entitlements, (2) the expiration or termination of an Additional Agreement, (3) the removal of the Service from the Other Chaos Product or Your Entitlements, or (4) the discontinuation of the Service by Chaos.
11.4.You may terminate these Terms at any time, with or without cause, effective upon notice of termination whereupon you will no longer be entitled to access or use the Service.
11.5.Each of Chaos or You may terminate these Terms, if the other party is in breach of the Terms and fails to cure such breach within ten (10) days after written notice of the breach.
11.6.In addition, Chaos may, as an alternative to termination, suspend the Service and Your access to the Offering, and/or other Chaos obligations or Your rights under these Terms, if You fail to make a payment to Chaos or a distributor or reseller authorized directly or indirectly by Chaos or otherwise fail to comply with the provisions of these Terms or Additional Agreements relating to any such Service.
11.7.Chaos may also terminate this Agreement if You become subject to bankruptcy proceedings, become insolvent, or make an arrangement with Your creditors. These Terms will terminate automatically without further notice or action by Chaos if You go into liquidation.
11.8.Chaos may terminate or modify this Agreement if the continued provision of the Services to You or Your users is prohibited by applicable law or as otherwise required by applicable law.
11.9.Chaos may modify and adjust the Services and Terms at any time by giving you notice to comply with the changed conditions or terminate every affected portion thereof, or all of them. Chaos reserves the right, from time to time in its sole discretion, to:
(1) modify or release subsequent versions of the Service,
(2) impose license keys, authorizations, or other means of controlling access to the Service, and
(3) change or discontinue the Service or the products, functionality or services comprising the Service, limit the availability of a Service to any geographic area or language at any time.
11.10.You acknowledge and agree that Chaos may at any time make feature or functionality updates to the Service. Chaos will endeavor to inform You of major changes to the Service (including the Entitlements applicable to a Offering). Chaos will provide You ninety (90) days advance notice if Chaos discontinues the Service in its entirety.
11.11.In case Chaos makes a material modification to these Terms, Chaos will provide notice to You. 11.12.Notice will be provided:
(i) via email to Your or User's registered email address, or
(ii) via notice in the administrator site or account of Your site or account, or
(iii) via any other manner deemed reasonable by Chaos which involves specific notification to You (including, for example, by in-service notification functionality).
11.13.Notwithstanding the forgoing, modifications to the Privacy Policy will be handled as described in the Privacy Policy.
11.14.1.Except as may be otherwise expressly set forth in the Membership Terms, if a modification to the Entitlements or these Terms has a material adverse effect on You and You do not agree to the modification, You must notify Chaos of the same by email within thirty (30) days after Chaos's notice of the modification. Such notification shall be considered a termination by You pursuant to these Terms.
11.14.2.If You so notify Chaos, Your use and access to the Service will (even if you click to agree or acknowledge the modified Terms) remain governed by the Terms in effect immediately before the change (except to the extent modifications were made to comply with applicable law) until (x) the end of the then-current term identified in Your Entitlements, or (y) sixty (60) days after Chaos's notice of the modification, whichever is earlier.
11.14.3.In the event of such termination by You, Chaos (or the applicable third party) may refund the prorated portion of any prepaid fees, if any, applicable to the remaining term after the effective date of termination. Such date will be the end of the Term of Your Services.
11.15.For all Free Services, (a) these Terms may be terminated at any time by Chaos or by You, with or without cause, effective upon notice of termination; and (b) if no expiration date or end of term is identified in the Entitlements, and neither of the events described in (2), (3) or (4) above has first occurred, then these Terms shall terminate on the first anniversary of the Effective Date. Without limitation of anything in this paragraph, for all Offerings accessed as part of Subscription or Membership, these Terms and Your access to the Services will terminate when Your Subscription or Membership (and the applicable Subscription or Membership Terms) terminates or expires.
11.16.Upon any termination of these Terms for any reason, You and Your Users must immediately cease using the Service. Termination of these Terms does not affect, or give You any right to terminate, any Additional Agreement. Sections which by their nature should survive termination, will automatically survive termination of these Terms for any reason. It is Your responsibility to retain copies of Your Content/ Result. Upon termination Chaos shall have the right to immediately deactivate Your account(s) and suspend access to Your Content/ Result and, following the Result Retrieval Period, may delete, without notice, Your Content/ Result, if any, and all backups thereof, and Chaos Parties shall not be liable for any loss or damage which may be incurred by You or any third parties as a result of such deletion.
12. MISCELLANEOUS
12.1.These Terms, including the formation, interpretation, breach or termination thereof, will be governed by and construed in accordance with the laws of the Republic of Bulgaria, without regard to its conflict of law rules and principles. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) these Terms.
12.2.The parties shall each use commercially reasonable efforts to settle any dispute, controversy or claim arising out of or relating to this Agreement. If no solution is achieved within sixty (60) days of a party's written notice of a dispute, You agree that any claim, action or dispute arising under or relating to these Terms (including, without limitation, the Special Terms and Conditions) will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the for resolution to the Court of Arbitration of the Bulgarian Chamber of Commerce and Industry in Sofia, Bulgaria, and be resolved, enforced and further executed in accordance with court rules then in effect and any other laws then in force throughout the Republic of Bulgaria, except that if You are an individual or for any other reason arbitration may not apply to You, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the competent court in Pleven, Bulgaria, and subject to appeal before the relevant appeal court and court of cassations. The Parties waive any other venue to which either Party might be entitled by domicile or otherwise. Nothing in the foregoing will prevent Chaos from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur. You will be considered to have subscribed to a Service based on the governing law agreed hereunder, regardless of where the Service is delivered or accessed.
12.3.In the event any of the terms of these Terms are declared void because it conflicts with the applicable law, the rest of the terms and the Terms as a whole will remain in full effect. Such invalid term will be superseded by the mandatory provisions of the governing law.
12.4.You acknowledge and agree that Chaos may assign or sub-contract any of its rights or obligations under these Terms.
12.5.A person who is not a party to these Terms (including any User) may not enforce any of the terms in these Terms as against a party hereto.
12.6.You acknowledge and agree that Your use of the Offering may be subject to compliance with the EU, the United States, and/or other applicable country export control and trade sanctions laws, rules and regulations, including, without limitations the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury ("Export Control Laws"). You shall be solely responsible for complying with the Export Control Laws and monitoring any modifications to them. You represent and warrant that (1) You are not a citizen of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Sudan, Syria and North Korea); (2) You are not identified on any U.S. government restricted party lists (including, without limitation, the U.S. Treasury Department's List of Specially Designated Nationals and Other Blocked Persons, the U.S. Department of Commerce's Denied Party List, Entity List and Unverified List and the U.S. Department of State's proliferation-related lists); (3) You will not, unless otherwise authorized under the Export Control Laws, use the Offering in any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications; and (4) that no part of Your Content/ Result is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that You will not use the Offering to disclose, transfer, download, export or re-export, directly or indirectly, Your Content/ Result, Third Party Materials or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which You may be subject.
12.7.The parties to these Terms contract as independent contractors and, except as expressly provided to the contrary, nothing in these Terms shall be construed as a relationship of agency, partnership or joint venture. Neither party shall be liable for any debts, accounts, obligations or other liabilities of the other party, its agents or employees. Neither party is authorized to incur debts or other obligations or liabilities of any kind on behalf of the other except as expressly authorized in writing.
12.8.No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach
12.9.Notices in connection with these Terms by You will be in writing and will be sent by electronic mail to [contacts@chaosgroup.com](mailto:contacts@chaosgroup.com), postal service, or a delivery service (such as UPS, FedEx or DHL), except that You may not provide notice to Chaos of an Chaos breach by electronic mail. Notices from Chaos to You will be effective (1) in the case of notices by email or website posting, one (1) day after sending to the email address provided to Chaos or posting on the applicable web site, or (2) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Chaos. You hereby consent to service of process being effected on You by registered mail sent to the address set forth on Your Order Form (or, if no Order Form has been provided, Your last address known by Chaos) if so permitted by applicable law. Notices from You to Chaos will be effective (a) in the case of notices by email, one (1) day after sending to (and receipt by Chaos), or (b) in the case of notices by mail or delivery service, when received by Chaos at their then-current headquarter address as indicated on their Portal. If You have a Subscription or Membership, either party may also provide notice as set forth in the Subscription or Membership Terms.
12.10.Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorism or terrorist acts, war, failure or interruption of the Internet or third party Internet connection(s) or infrastructure, power failures, acts of civil and military authorities and severe weather. Such party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
12.11.These Terms (including, without limitation, the Additional Agreements and Policies) contain the entire agreement between You and Chaos with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and Chaos with respect to the Offering. In the event of a conflict or inconsistency between these Terms and any Additional Agreement or Policy, these Terms will control, except (1) that the Entitlements and Special Terms and Conditions will control over these Terms and (2) an Additional Agreement will control to the extent that it expressly overrides these Service Terms with respect to the Service.
12.12.Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
You can access a copy of these terms on the Chaos website or any successor or supplemental web page of Chaos.