CadActive Terms and Conditions of Sale

 

1. PURPOSE AND SCOPE.

1.1. Terms and Conditions. These general terms and conditions of sale only apply to purchases of CadActive branded software products and professional services purchased directly from CadActive Technologies, Inc. in order to facilitate the use and licensing of CadActive’s products and services. For terms applying to the sale of PTC branded software products, please refer to the terms and conditions set forth at https://www.ptc.com/en/documents/legal-agreements/on-premise-license-agreements/. Additional product and service-specific terms and conditions are set forth in one or more Schedules (as further defined in Section 1.2 herein) made part of this Agreement. All references to the “Master Agreement” shall mean this document, exclusive of Schedules. All references to the “Agreement” wherever found shall include this Master Agreement, all Schedules, the Order(s) and any attachments incorporated therein.

1.2. Incorporation of Schedules. The term “Schedule(s)” means the document(s) other than an Order, regardless of its actual name, executed by the Parties which incorporate by reference the terms of this Master Agreement. This Master Agreement shall fully incorporate by reference the terms and conditions found in each of the Schedules made part of this Agreement. The Parties may execute, from time to time, additional Schedules under the terms of this Master Agreement. 

1.3. Incorporation of Orders. The term “Order” means the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the terms of this Master Agreement and applicable Schedules, and describes the Client’s order-specific information, such as description of Products or Services ordered, license scope, fees, and / or Third Party EULAs, if any. At any time after execution of the initial Order, Client may purchase additional Products or Services, upon CadActive’s receipt and acceptance of a new Order specifying the foregoing.

1.4. Incorporation of EULAs. Client’s use of any Third Party Products licensed hereunder or incorporated in the Products or Services shall be subject to, and Client shall Comply with, the Agreement and any applicable Third Party EULAs, if any.

1.5. Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of any Schedule, the provisions of this Master Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Master Agreement. To the extent any provision of this Master Agreement or a Schedule conflict with the provisions of a Third Party EULA, the Third Party EULA will take precedence. In the event of a conflict between an Order and the Agreement, the Agreement shall prevail, provided, however, that such standard variable terms such as price, quantity, license scope and License Metrics, tax exempt status, payment terms, shipping instructions and the like shall be specified on each Order.

 

2. DEFINITIONS. 

“CadActive Software” means each CadActive-developed and / or CadActive-owned software product in machine readable object code (not source code) as may be adapted, modified or customized from time to time, the Documentation for such product, and Updates thereto.

“Confidential Information” is defined in Section 4 of the Master Agreement.

“Content” means all materials provided by or through Client, including, but not limited to, any data, images, information and work, including without limitation, any text, picture, video, sound recording, illustrations, graphics, design, trade or service mark, trade name, name, likeness, ad, logo and / or sponsorship, which is or is intended to be uploaded, displayed, downloaded or transmitted via or using the Products or Services.

“Customization(s)” means, regardless of whether such Customizations are performed by CadActive, Client or Client User: configurations implemented through use of source code change. 

“Documentation” means the user instructions, release notes, manuals and on-line help files in the forms generally made available by CadActive or a third party, regarding the use and the functional specifications of the applicable Product or Service, as may be updated from time to time.

“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which CadActive has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, create, employ, provide, modify, acquire or otherwise obtain rights in.

“License Metrics” means the limitation on the usage of each of the Products or Services as designated and / or defined in the applicable Order by a term such as the number of users or otherwise.

“Maintenance” means the provision of Updates.

“Order” is defined in Section 1.3 of this Master Agreement.

“Products” means collectively the CadActive Software, Subscription Products, Customizations and Third Party Products.

“Professional Services” means implementation, data conversion, configuration, integration and deployment of the Products, training, project management and other consulting services provided by or through CadActive as further defined in the Order.

“Services” means collectively Professional Services, Maintenance, Support, and the provision of certain services related to the Subscription Products.

“Subscription Products” means the provision of the use of certain software as a service which is either hosted by CadActive or its hosting providers or hosted by Client or its hosting provider and which is accessed by Client and the related Services (specifically excluding Professional Services), as more fully described in the Subscription Products and Services Schedule and associated Order(s).

“Support” means the technical assistance, workarounds, troubleshooting regarding the use of the Products all of which are provided under CadActive’s Support Policies in effect at the time the Support is provided. For the avoidance of doubt, Support excludes Professional Services. 

“Support Contact(s)” means those individuals who have successfully completed CadActive’s Support training course(s) as may be in place and modified from time to time.

“Support Policies” means those policies and procedures that are found on CadActive’s website at https://www.cadactive.com/legal, which may be subject to changes by CadActive from time to time in its sole discretion.

“Term” is defined in Section 9.2.

“Third Party EULA” or “EULA” means software, products or services in object code form, including Documentation or Updates owned by an entity other than CadActive.

“Updates” means a new version of the Products, if and when developed after the effective date of the Order, which CadActive makes generally available to its customers as part of the Maintenance. Updates include bug fixes, patches, error corrections, non-new platform changes, or modifications or revisions to the Product that enhance existing performance. Updates exclude new products, services, modules or functionality for which CadActive generally charges a separate fee.

 

3. FINANCIAL TERMS.

3.1. General. Fees and payment terms are specified in the applicable Order. Except as otherwise expressly specified in the Order, all recurring fees payment obligations start from the effective date of the Order. Unless otherwise specified in the Order, payment of all fees are due upon receipt of an invoice from CadActive. Failure to make timely payments shall be a material breach of the Agreement and CadActive will be entitled to suspend any or all of its performance obligations hereunder in accordance with the provisions of Section 9.3 and / or to modify the payment terms, and to request full payment before any additional performance is rendered by CadActive. Client agrees that the absence of a purchase order or other administrative procedure may not be raised as a defense to avoid or impair the performance of any of Client’s obligations hereunder, including, but not limited to, the payment of any fee. Client shall reimburse CadActive for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting any amounts due to CadActive hereunder that are not under good faith dispute by Client. Fees paid or payable for Products, Services, Maintenance or Support are not contingent under any circumstances upon the performance of any Professional Services.

3.2. Taxes. Client shall be responsible for payment of all taxes (excluding those on CadActive’s net income) relating to the provision of the Product and Services, except to the extent a valid tax exemption certificate or other written document acceptable to CadActive to evidence Client’s tax exemption status is provided by Client to CadActive prior to the delivery. Client agrees to indemnify CadActive from any liability or expense incurred by CadActive as a result of Client’s failure or delay in paying taxes due, including costs and attorneys’ fees.

3.3. License Metrics. Client understands that its right to use the Products or Services is limited by the License Metrics. Additional License Metrics must be purchased in the event actual License Metrics exceed the licensed quantity. All fees are based on the License Metrics purchased and the quantities of License Metrics provided in the initial Order represent minimum amounts that Client has committed to for the Term stated within the Order. There shall be no fee adjustments for refunds for any decreases in usage or License Metrics during the Term.

3.4. Travel Related Expenses. CadActive’s reasonable travel, food and lodging expenses incurred by CadActive in the performance of Services on Client’s site or other location at Client’s request will be billed separately at actual cost plus five percent (5%).

3.5. No Contingencies.  Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by CadActive regarding future functionality or features.

3.6. Disputed Fees. Client shall promptly, but in no event later than twenty-five (25) days after receipt of an invoice, notify CadActive of any invoice or credit amounts Client disputes in good faith. Any charge not disputed in good faith by Client within twenty-five (25) days of receipt of an invoice will be deemed final and payable and Client shall be not entitled to withhold such amount or take a credit for such amount, provided that Client shall not waive any right to obtain a refund for any amount incorrectly billed. The Parties agree to investigate and work together in good faith to resolve any disputed amount within thirty (30) days of notice to CadActive. Interest shall not accrue on the disputed portion of an invoice during the period the parties are working in good faith to resolve the dispute. No dispute will relieve Client from the obligation of paying the undisputed portion of any invoice on or before the due date.

 

4. CONFIDENTIALITY.

4.1. General. All Confidential Information (as defined below) disclosed hereunder will remain the exclusive and confidential property of the disclosing Party. The receiving Party will not disclose the Confidential Information of the disclosing Party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing Party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving Party will limit access to Confidential Information to its affiliates, employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Client may disclose the Products and Services to its contractors and / or consultants for the sole benefit of Client, provided that any breach of the terms of the Agreement by such contractors and / or consultants shall be deemed a breach by Client and Client remains fully responsible for such breach. Neither Party may use the other Party’s Confidential Information other than as necessary to directly further the purposes of the Agreement.

4.2. Exceptions. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party (a) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, and (b) as required to respond to any summons or subpoena or in connection with any litigation, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.

4.3. Return of Information. Upon the request of the disclosing Party, the receiving Party will return or destroy all Confidential Information of the disclosing Party that is in its possession. Notwithstanding the foregoing, CadActive may retain information for regulatory purposes or in back-up files, provided that CadActive’s confidentiality obligations hereunder continue to apply.

4.4. Definition. The term “Confidential Information” shall mean information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing Party. Confidential Information of CadActive and / or its licensors includes but is not limited to the terms and conditions (but not the existence) of the Agreement, all trade secrets, software, source code, object code, specifications, documentation, business plans, customer lists and customer-related information, financial information, auditors reports of any nature, proposals, budgets as well as results of testing and benchmarking of the Products or Services, product roadmap, data and other information of CadActive and its licensors relating to or embodied in the Products or Services. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was in the receiving Party’s possession before receipt from the disclosing Party; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one Party without reference to any Confidential Information of the other. The obligations of CadActive set forth in this Section 4 shall not apply to any suggestions and feedback for Product and Service improvement, correction, or modification provided by Client in connection with any present or future CadActive product or service, and, accordingly, neither CadActive nor any of its clients or business partners shall have any obligation or liability to Client with respect to any use or disclosure of such information.

 

5. CERTAIN OBLIGATIONS.

5.1. Network and Adequate Bandwidth. Use of certain Products and Services requires that Client procures and implements, at Client’s risk and expense, a telecommunications infrastructure network with bandwidth adequate to accommodate Client’s use of such Products and Services as well as any other products and services Client uses in connection with such network. Use of certain Products and Services may also require that Client procures third party products(s).

5.2. Remote Access. Client will, at Client’s expense, provide and maintain communication lines and equipment that permit CadActive to perform its obligations under this Agreement including without limitation an adequate and persistent, high speed electronic means of connectivity that permits CadActive to communicate with the equipment on which the Products are installed.

5.3. Passwords, Access, and Notification. Client must provide and assign a unique password, e-mail address and user name to each user of the Products and Services. User names and passwords must be unique and not be shared by, between or among individuals. Client shall immediately notify CadActive if Client becomes aware of any loss, theft or unauthorized use of any such passwords, e-mail addresses or user names.

5.4. Cooperation. Client shall provide CadActive with good faith cooperation and access to such information, facilities, personnel and equipment as may be reasonably required by CadActive in order to provide the Products and Services, including, but not limited to, providing security access, information, and software interfaces to Client’s applications, and Client personnel, as may be reasonably requested by CadActive from time to time. Client acknowledges and agrees that CadActive performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Services. CadActive shall be entitled to rely on all decisions and approvals of Client.

5.5. Support Contacts. Client agrees to report all Support requests through its Support Contact(s) to CadActive. The maximum number of Support Contact(s) is specified in the Order. Support Contact(s) are required to undergo CadActive training courses prior to being confirmed as “Support Contact”. Reports must include all pertinent information regarding Customer’s deployment and use of the Products or Services and the circumstances under which the problem occurred. When submitted a service request, a Support Contact should have a baseline understanding of the problem encountered and an ability to reproduce the problem in order to assist CadActive in diagnosing and triaging the problem.

5.6. Third Party Products. Client shall use the Third Party Products in conjunction with CadActive Products and Client shall have no broader use rights with respect to the Third Party Products than it has to the CadActive Products. CadActive reserves the right, during the Term, to add and / or substitute functionally equivalent products in the event of product unavailability, end-of-life, changes to software requirements, or CadActive, in its sole discretion, elects to discontinue distribution and support of any Third Party Product. For the avoidance of doubt, this section refers to Third Party Products distributed by CadActive in conjunction with CadActive Products. 

 

6. LIMITED RIGHTS AND OWNERSHIP.

6.1. Reservation of Rights. All rights not expressly granted in the Agreement are reserved by CadActive and its licensors. Client acknowledges that: (i) all Products are licensed or subscribed to and not sold; (ii) Client acquires only the right to use the Products and Services and CadActive and its licensor shall retain the sole and exclusive ownership of all rights, title, and interest in the Products, including: (whether developed by CadActive, Client, or other third party) (a) Intellectual Property embodied in or associated with the Products, (b) deliverables and work product associated with the Products, and (c) all copies, modifications and derivative works thereof; and (iii) the Products, including the source and object codes, logic and structure thereof, constitute valuable trade secrets of CadActive and its licensors. Client hereby assigns to CadActive all right, title and interest in and to Customizations developed by Client or by any other third party on behalf of Client; however, Client shall retain a license to use such Customizations for so long as Client retains a license to use the Products used in conjunction with such Customizations. CadActive owns any suggestions, ideas, enhancement requests, feedback or recommendations provided by Client relating to the Products and Services. Client agrees to secure and protect the Products consistent with the maintenance of CadActive’s and its licensors’ rights therein, as set forth in this Master Agreement. Client agrees to execute such further instruments, and take such further actions as CadActive may reasonably request, at CadActive’s expense, to apply for, register, perfect, confirm, and protect CadActive’s rights. In the event Client fails to cooperate with CadActive as set forth herein, Client shall reimburse CadActive for any and all expenses that CadActive may incur (including interest, attorneys’ fees and other legal expenses) in connection with CadActive’s Intellectual Property rights in the event CadActive prevails in such enforcement efforts. 

6.2. Restrictions. Client shall use the Products and Services only for the internal business purposes of Client and subject to all limitations as stated within this Agreement, including all Order(s). Client shall not itself, or through any affiliate, user, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Products; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Products, including the license keys, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Products to any user other than Client’s employees and individual contractors who have a need to such access and who shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the terms of the Agreement; (iv) write or develop any derivative works based upon the Products; (v) modify, adapt, translate or otherwise make any changes to the Products or any part thereof; (vi) use the Products or Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without CadActive’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Products; or (viii) otherwise use or copy the Products or Services except as expressly permitted herein.

6.3. Suspension for Ongoing Harm. If Client or anyone using Client’s infrastructure or access codes causes or uses CadActive’s owned or controlled equipment, Products or Services to be used in a denial of service attack, spamming or any illegal activity (collectively, “Harmful Activity”), Client must cause the Harmful Activity to cease within twenty-four (24) hours. If Client fails to do so, CadActive may suspend Client’s access to the Products and Services and the facility hosting the same until Client has taken action that prevents continued Harmful Activity, provided, however, that such suspension of access will be as minimal as required, and only to the extent required to prevent the Harmful Activity. In such event, the Parties will work together diligently and in good faith to resolve the issues causing the suspension. Upon such resolution, CadActive will promptly restore Client’s access to the Products and Services and the hosting facility. Such suspension shall not relieve Client of any payment obligations. Client shall indemnify and hold harmless CadActive from such Harmful Activity.  CadActive shall not be liable for good faith interpretations of circumstances giving rise to Harmful Activity, even if its interpretations are in error, or for any actions taken to remedy Harmful Activity.

6.4. Client Content. Client retains sole and exclusive ownership to any and all Content. Client is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership and right of use of any Content. All Content shall be provided to CadActive in a reasonable commercial format that is widely utilized within the industry. Client acknowledges Content not submitted in such format(s) may result in additional fees to the Client for the conversion of Content to the correct format and / or other actions provided by CadActive on Client’s behalf of allow for the use of Content. Client shall be responsible for maintaining copies, backing up and archiving all Content. In the event of the loss of Content, CadActive shall provide reasonable assistance to Client (which may require the payment of additional fees) to restore the lost Content. 

6.5. License Grant by Client. Client grants to CadActive a non-exclusive, royalty free license to use equipment, software, Content or other material of Client solely for the purpose of performing CadActive’s obligations under the Agreement.

6.6. Enforcement. Client shall (i) ensure that all users of Products comply with the terms and conditions of the Agreement, (ii) promptly notify CadActive of any actual or suspected violation thereof and (iii) cooperate with CadActive with respect to investigation and enforcement of the Agreement. The Products may contain code-based protections that serve to prevent and remedy violations of the license restrictions. If the Product is hosted on Client’s technology systems, CadActive may access the Product remotely in order to ensure Client’s compliance with the license terms and other restrictions of the Agreement. 

6.7. Future Developed Software. CadActive shall have a royalty-free, perpetual, irrevocable, and fully sub-licensable right and license (including, but not limited to, copyright, patent trademark and trade secret rights) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display (in whole or part) worldwide and / or to incorporate it in other works in any form, media, or technology now known or later developed any and all Customization, software, code modifications or enhancements developed by CadActive on behalf of Client or jointly developed by CadActive and Client.

 

7. INDEMNIFICATION.

7.1. CadActive Indemnity. CadActive will defend or settle, at its sole option and expense, any action, suit or proceeding brought against Client by a third party that CadActive Software or Subscription Product infringe a third party’s USA patent or registered copyright (“IP Claim”). CadActive will indemnify Client against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such IP Claim, provided that Client: (i) promptly gives written notice of the IP Claim to CadActive; (ii) gives CadActive sole control of the defense and settlement of the IP Claim; (iii) provides CadActive, at CadActive’s expense, with all available information and assistance relating to the IP Claim and cooperates with CadActive and its counsel; (iv) does not compromise or settle such IP Claim; and (v) is not in material breach of any agreement with CadActive. CadActive has no obligation to the extent any IP Claim results from: (i) Client having modified the CadActive Software or Subscription Product or used a release other than a current unaltered release of the CadActive Software or Subscription Product, if such an infringement would have been avoided by the use of a current unaltered release of the CadActive Software or Subscription Product, (ii) Content and / or any Third Party Products, (iii) Customizations or (iv) the combination, operation or use of the CadActive Software or Subscription Product with software, services or data not provided by CadActive.

7.2. Options. If it is adjudicated that an infringement of the CadActive Software or Subscription Product by itself and used in accordance with the Agreement infringes any USA patent or registered copyright, CadActive shall, at its option: (i) procure for Client the right to continue using the affected Product; (ii) replace or modify the same so it becomes non-infringing; or (iii) CadActive shall terminate the applicable Product license or Service and shall refund to Client (a) with respect to a perpetual license to the CadActive Software, the license fees for the affected Software, less one thirty-sixth (1/36) thereof for each month or portion thereof that the applicable Order has been in effect, or (b) with respect to Subscription Products and/or limited term Product licenses, the pre-paid portion of the license fees paid to CadActive for the affected Product, excluding any Support fees. THIS SECTION 7.2 STATES CadActive’S ENTIRE OBLIGATION TO CLIENT AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.

7.3. Client Indemnification. Client shall defend CadActive against any claim, demand, suit, or proceeding made or brought against CadActive by a third party arising out of or related to (i) the Content; (ii) Client’s or its users’ use of the Products or Services in violation of the Agreement; (iii) Client or any user infringing or misappropriating the Intellectual Property rights of a third party or violating applicable law; or (iv) Client’s or its users’ use or misuse of the Products, Services or the Content (including, without limitation, accessing, providing access, using or distributing the Content) (each of the above a “Client Claim”). Client shall indemnify CadActive for all damages and costs finally awarded against, and for reasonable costs and attorney’s fees incurred by, CadActive in connection with any Client Claim, or those costs and damages agreed to in a monetary settlement of such Client Claim; provided that CadActive (a) promptly gives Client written notice of the Client Claim, (b) gives Client sole control of the defense and settlement of the Client Claim (provided that Client may not settle or defend any Client Claim unless it unconditionally releases CadActive of all liability), and (c) provides client all reasonable assistance, at Client’s cost. For purposes of this section 7.3 only, “CadActive” shall include CadActive and its affiliates, and each of their members, owners, officers, directors, employees, agents, successors and assigns. 

 

8. DISCLAIMERS AND LIMITATION OF LIABILITY.

8.1. Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET FORTH IN THE SCHEDULES ARE IN LIEU OF, AND CadActive, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY PRODUCT, DELIVERABLES OR SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, and (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY CadActive, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. CadActive MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY PRODUCTS OR ANY THIRD PARTY CONTENT. CLIENT’S SOLE REMEDY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS SHALL BE PURSUANT TO THE ORIGINAL LICENSOR’S WARRANTY. CLIENT ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CLIENT DATA. ACCORDINGLY, CadActive CANNOT AND DOES NOT GUARANTY THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. FURTHER, THE PRODUCTS MAY PROVIDE, OR THIRD PARTIES MAY PROVIDE, LINKS TO OTHER WORLD WIDE WEB SITES OR RESOURCES. CadActive SHALL NOT BE RESPONSIBLE FOR THE AVAILABILITY OR ACCURACY OF SUCH EXTERNAL RESOURCES. CadActive DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES.

8.2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, CADCATIVE’S TOTAL LIABILITY (INCLUDING ATTORNEY’S FEES AWARDED UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 7 (INDEMNIFICATION), WILL BE LIMITED TO (i) WITH RESPECT TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL SERVICES, THE FEES PAID BY CLIENT FOR THE PRODUCT OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM WITHIN THE PRIOR TWELVE (12) MONTHS AND (ii) WITH RESPECT TO SERVICES, TERM LICENSES, MAINTENANCE AND SUPPORT, THE FEES PAID FOR THE PRIOR SIX (6) MONTHS FOR THE PRODUCT OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM. 

8.3. No Special Damages. IN NO EVENT WILL CadActive BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT CadActive HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.4. Time Limitation. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.

 

9. TERM AND TERMINATION

9.1. Master Agreement Term. The term of this Master Agreement shall commence upon customer signature of a valid CadActive quote or order form, as determined by CadActive, which incorporates these terms and conditions by reference and shall continue in full force and effect until the expiration or termination of all Schedules and Orders, unless otherwise terminated by mutual agreement of CadActive and Client. 

9.2. Products and Services Term. The initial term for the provision of Product(s) and Service(s) is specified in the applicable Order (“Initial Term”). The Initial Term shall automatically renew for successive terms of the same length as the Initial Term unless either Party gives written notice at least forty-five (45) days prior to the end of the Initial Term or any renewal term of its intention not to renew. The Initial Term and renewal terms are referred to as the “Term”.

9.3. Suspension of Services. CadActive reserves the right to suspend any or all of the Services immediately upon written notice in the event the Client or its users are in material breach of the Agreement. Further, CadActive may suspend Client’s access and use of Subscription Products if, and so long as, in CadActive’s sole judgment, there is a security risk created by Client that may interfere with the proper continued provision of the Subscription Product or the operation of CadActive’s network or systems. CadActive may impose an additional charge to reinstate service following such suspension.

9.4. Termination. Either party may terminate the Agreement immediately upon written notice at any time if: (i) the other party commits a non-remediable material breach of the Agreement, or if the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such a breach, except for breach of payment terms which shall have a ten (10) day cure period; or (ii) the other Party ceases business operations; or (iii) the other Party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events).

9.5. Partial Termination. Where a party has a right to terminate the Agreement, the non-breaching party may at its discretion either terminate the Agreement or the applicable Schedule and Order thereunder. Schedules and Orders that are not terminated shall continue in full force and effect under the terms of this master agreement.

9.6. Post-Termination Obligations. Following termination of the Agreement or a Schedule (for whatever reason), Client shall certify that it has returned or destroyed all copies of the applicable Products and CadActive Confidential Information in its possession and acknowledges that its right to use the same are relinquished. Termination of this Agreement for any reason shall not excuse Client’s obligation to pay in full any and all amounts due, nor shall termination by CadActive result in a refund of fees paid.

 

10. GENERAL PROVISIONS.

10.1. Publicity. CadActive may use on CadActive’s website(s) and may publicly refer to Client, orally and in writing, as a customer of CadActive. CadActive may use Client’s graphical logo, company name, and general public business information on CadActive’s website(s) and in marketing materials and other documents to represent that Client is a customer of CadActive. The Parties shall work in good faith to prepare and publish a joint press release announcing the Parties’ relationship no later than sixty (60) days after the Effective Date of this Master Agreement.  Without CadActive’s prior written consent, Client will not use CadActive’s name in any advertising or publicity releases.

10.2. Force Majeure. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquakes, fires or explosions. Dates by which performance obligations are scheduled to be met will be extended for a reasonable period of time not to exceed one hundred eighty (180) days.  If a force majeure event extends beyond one hundred eighty (180) days, either Party may terminate the Agreement upon ten (10) days’ written notice to the other Party.

10.3. Assignment. CadActive may assign the Agreement and all of its rights and obligations herein without Client’s approval to its parent company or other affiliated company, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Neither Party may otherwise assign or transfer the Agreement without the prior written consent of the other Party.

10.4 Subcontractors. CadActive may subcontract or delegate Services to any third party without Client’s prior written consent.

10.5 Notice of U.S. Government Restricted Rights. If the Client hereunder is the U.S. Government, or if a Product is acquired hereunder on behalf of the U.S. Government with U.S. Government federal funding, notice is hereby given that the Product is commercial computer software and documentation development exclusively at private expense and is furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software – Restricted Rights (June 1987)*.

10.6 Export. Client shall comply fully with all relevant export laws and regulations of the United States to ensure that the Products are not exported, directly or indirectly, in violation of United States law.

10.7 Non-solicitation. During the term of this Master Agreement and for a period of one (1) year following its termination, neither Party will employ or solicit for employment directly or through other parties, without the other Party’s written permission, any individual employed by the other Party, provided however that the solicitation or hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.

10.8 Compliance. During the term of this Master Agreement and for a period of one (1) year following its termination, Client shall maintain and make available to CadActive records sufficient to permit CadActive or an independent auditor retained by CadActive to verify, upon ten (10) days’ written notice, Client’s compliance with the terms and requirements of the Agreement. Such audit shall be performed during regular business hours. If such verification process reveals any noncompliance by Client with the Agreement, Client shall reimburse CadActive for the reasonable costs and expenses of such verification process incurred by CadActive, and Client shall promptly cure any such noncompliance, including without limitation through the payment of fees owed to CadActive during the period of noncompliance; provided, however, that the obligations under this Section do not constitute a waiver of CadActive’s termination rights.

10.9 Notices. Any notice required or permitted hereunder shall be in writing and shall be: (a) delivered by hand, effective when received; (b) delivered by a generally recognized commercial overnight delivery service, effective on the next business day after being placed in the possession of such delivery service, with delivery charges prepaid; or (c) mailed postage prepaid by certified or registered mail, return receipt requested, effective on the date indicated on the written signature card indicating acceptance by addressee. Notices to each party shall be sent to the address provided on a signed quote, order form or customer purchase order to the attention of the Agreement signatory for each Party, or to such other place as such Party may designate by written notice to the other Party.

10.10 Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.

10.11 Severability. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 

10.12 Survival. The following provisions will survive any termination or expiration of the Agreement or Schedule: Sections 1, 2, 3, 4, 6.5, 6.7, 7, 8, 9.6, and 10.16.

10.13 No Waiver. Waiver by either Party of the performance of any condition or covenant of this Agreement will not invalidate this Agreement, nor will it be deemed a waiver of any other condition or covenant.  No waiver of any condition or covenant will be valid unless given in writing and executed by both Parties.

10.14 Entire Agreement. The Agreement constitutes the Parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter. No modification of the Agreement will be binding unless it is in writing and includes a signature by an authorized representative of each Party. All pre-printed or conflicting terms of any Client purchase order or other business processing document shall have no effect. 

10.15 Third Party Beneficiaries. This Agreement is for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee, user or client of a Party. Notwithstanding the above, all rights and benefits afforded to CadActive under the Agreement shall apply equally to the owner of any Third Party Product, and such third party is an intended third party beneficiary of the Agreement, with respect to the Third Party Product.

10.16 Governing Law and Venue. The Agreement shall be governed by construed in accordance with the laws of the State of Delaware without giving effect to its principles of conflict of laws. Any disputes shall be litigated in the state or federal courts located in the State of Delaware to whose exclusive jurisdiction the Parties hereby consent. For purposes of establishing jurisdiction in Delaware under this Agreement, each party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court, (ii) it is immune from any legal process with respect to it or its properly; and (iii) any such suit, action or proceeding is bought in an inconvenient forum. The Parties agree that this contract is not a contract for the sale of goods; therefore, the Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.

10.17 Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a party based on the source of the language at issue.

10.18 Counterparts. The Master Agreement and each Schedule and Order may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Agreement. Facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.  

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