Last Updated: April 26, 2022

 

1. Definitions. Capitalized terms used but not defined in these Standard Subscription Terms and Conditions (these “Terms”) shall have the meanings attributed to them in Schedule 1 hereto.

2. Access and Use.

2.1. License Grant. Subject to Customer’s compliance with the terms and conditions of the Agreement, including timely payment of all Fees, Tech Soft 3D hereby grants Customer during the relevant Subscription Term and in the Territory, a revocable, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.4) license and right to (a) permit the number of Authorized Users specified in the applicable Sales Order to access and use the Tech Soft 3D On-Premise Applications identified in such Sales Order, solely for the benefit of Customer solely in or for Customer’s internal business operations as contemplated herein and the relevant Sales Order in accordance with the terms and conditions of the Agreement (the “Permitted Use”), and (b) access and use such other Tech Soft 3D Materials as Tech Soft 3D may supply or make available to Customer solely as necessary to enable such Authorized Users to access and use the Tech Soft 3D On-Premise Applications for the Permitted Use.

2.2. Subscriptions; Account Limitations. Unless otherwise specified in the applicable Sales Order, the Tech Soft 3D On-Premise Applications are purchased as subscriptions (“Subscriptions”) and may be accessed by no more than the specified number of Authorized Users set forth on an Sales Order; additional Authorized Users may be added during the applicable Subscription Term at a prorated amount for the remainder of the then-current Subscription Term. Tech Soft 3D On-Premise Applications also may be subject to account limitations, which will be specified in the Sales Order.

2.3. Authorized Users. Customer is responsible and liable for all uses of the Tech Soft 3D On-Premise Applications resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the Agreement’s provisions as applicable to such Authorized User’s use of the Tech Soft 3D On-Premise Applications and shall cause Authorized Users to comply with such provisions.

2.4. Credentials. Without limiting the foregoing, Customer covenants and agrees to (a) keep strictly confidential any credentials (including passwords, usernames, API keys, tokens, or other authorization) provided to Customer for access to the Tech Soft 3D OnPremise Applications (or any portion thereof) (together, the “Credentials”), (b) not allow any other person other than Authorized Users to access or use the Tech Soft 3D On-Premise Applications utilizing the Credentials, (c) ensure that each Authorized User accessing the Tech Soft 3D On-Premise Applications does so only via systems within the Customer-protected environment, to the extent available, and (d) access or use the Tech Soft 3D On-Premise Applications (and ensure any Authorized Users access or use the Tech Soft 3D On-Premise Applications) solely for the Permitted Use and otherwise in accordance with the Agreement. The Credentials shall only be provisioned to unique named individuals (a list of whom Customer shall provide to Tech Soft 3D via email), not to exceed the number specified in the applicable Sales Order. The Credentials shall not be shared among Authorized Users, and Customer shall promptly notify Tech Soft 3D in writing (email suffices) of Authorized Users no longer employed at Customer or who otherwise no longer will be receiving access to the Tech Soft 3D OnPremise Applications so as to enable Tech Soft 3D to disable the applicable existing Credentials. If Customer wishes to replace any Authorized User(s), it must notify Tech Soft 3D in writing thereof (email sufficing), identifying the Authorized User(s) who will cease to be provided with access to the Tech Soft 3D On-Premise Applications and the one(s) who will be replacing them, at which time Tech Soft 3D will disable the applicable existing Credentials and issue new ones for assignment to the new Authorized User(s).

2.5. Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User or third party to (a) use any Tech Soft 3D Materials for any purposes beyond the scope of the access granted in the Agreement or any Documentation, (b) except as expressly authorized under the Agreement, distribute, publish, copy, modify, or create derivative works of, or provide to any third parties, any Tech Soft 3D Materials, in whole or in part, (c) rent, lease, lend, sell, license, sublicense, assign, or otherwise transfer any of the rights granted to Customer in Section 2.1 to any third party, (d) decompile, disassemble, decode, translate, reverse engineer or otherwise attempt to derive source code from the Tech Soft 3D On-Premise Applications or Tech Soft 3D Systems, in whole or in part, (e) remove, obscure or alter any proprietary notices related to the Tech Soft 3D OnPremise Applications, Tech Soft 3D Systems, API or any other Tech Soft 3D Materials or circumvent any securities measures or use restrictions in any of the foregoing, (f) use the Tech Soft 3D On-Premise Applications in order to build a competitive product or service or otherwise use any Tech Soft 3D Materials for competitive or benchmarking purposes, (g) use Tech Soft 3D Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law (or otherwise use the Tech Soft 3D On-Premise Applications in violation of the Documentation or any Tech Soft 3D terms of service), (h) input, upload, transmit or otherwise provide to or through the Tech Soft 3D On-Premise Applications or Tech Soft 3D Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code, (i) use Tech Soft 3D Materials for any unauthorized purpose or in any manner than damages, interferes with or disrupts the integrity or performance of the Tech Soft 3D On-Premise Applications’, API’s or Tech Soft 3D Systems’ operations or Tech Soft 3D’s’ Customers’ access to or use of the same, or (j) attempt to do any of the foregoing. Customer acknowledges that Customer is solely responsible for complying with, and covenants to comply with, all Applicable Law in connection with Customer’s use of the Tech Soft 3D On-Premise Applications, including all laws and regulations relating to the protection and non-disclosure of Customer Data.

2.6. Updates. Customer acknowledges and agrees that Tech Soft 3D may implement modifications, improvements and bug fixes to the Tech Soft 3D On-Premise Applications and other Tech Soft 3D Materials as deemed necessary or useful to (a) maintain or enhance (i) the quality or delivery of the Tech Soft 3D On-Premise Applications, (ii) the competitive strength of or market for the Tech Soft 3D On-Premise Applications, or (iii) the Tech Soft 3D On-Premise Applications’ cost efficiency or performance; or (b) to comply with Applicable Law (“Updates”). Tech Soft 3D will use commercially reasonable efforts to give reasonable prior notice of Updates that are anticipated to require responsive action or implementation of changes by Customer, and Customer shall implement all necessary actions or changes identified as mandatory within a reasonable timeframe specified by Tech Soft 3D. Notwithstanding anything to the contrary in the Agreement, Tech Soft 3D reserves the right, in its sole discretion, to modify the functionality or features or release a new version of the Tech Soft 3D On-Premise Applications from time to time.

2.7. Third Party Products. Customer acknowledges and understands that (a) the Tech Soft 3D On-Premise Applications may include Third Party Products, and (b) Customer Data may be processed or stored on hardware owned or controlled by third parties.

3. Professional Services; Support and Maintenance; Subcontractors.

3.1. Professional Services. Subject to Customer’s compliance with the terms and conditions of the Agreement, including timely payment of all Fees, Tech Soft 3D shall, during the relevant Subscription Term, provide the Professional Services purchased in the applicable Sales Order. Any modifications to the scope of the Professional Services will become effective and will be made part of the Agreement upon execution by both Parties of a written amendment to the applicable Sales Order. Customer will reimburse Tech Soft 3D for reasonable travel and lodging expenses as incurred.

3.2. Support and Maintenance. During the time that Customer has paid the applicable Subscription Fees, Tech Soft 3D shall provide Support and Maintenance during the Subscription Term in accordance with Tech Soft 3D’s then-current standard support policies.

3.3. Subcontractors. Tech Soft 3D may from time to time in its discretion engage third parties to assist in providing Professional Services or otherwise in the fulfillment by Tech Soft 3D of its obligations hereunder (each, a “Subcontractor”); provided that, in each case, Tech Soft 3D shall be responsible for such Subcontractor’s compliance with the terms and conditions of the Agreement.

4. Additional Customer Responsibilities.

4.1. Connectivity. In order to access and use the Tech Soft 3D OnPremise Applications, Customer is responsible for having each of the following: a computing device, operating system, web browser, and Internet connection that Tech Soft 3D supports at the time the relevant Tech Soft 3D On-Premise Applications are accessed.

4.2. Customer Data. Customer is responsible for (a) the accuracy, quality, and legality of all Customer Data, and (b) the backing up of Customer Data. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, TECH SOFT 3D HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

4.3. Compliance with Applicable Law. Customer shall comply with, and shall ensure that its Authorized Users comply with, all Applicable Law in connection with the Agreement and Customer’s and its Authorized Users’ access and use of the Tech Soft 3D On-Premise Applications.

4.4. Notification of Unauthorized Use. If Customer becomes aware that any Credentials or any portion of the Tech Soft 3D On-Premise Applications has been compromised in any way, or if Customer suspects that they may have been so compromised, Customer shall notify Tech Soft 3D in writing (email suffices) immediately, but in any event no later than 48 hours, upon such knowledge or suspicion. Tech Soft 3D shall have the right to suspend access to the Tech Soft 3D On-Premise Applications for any Authorized User and/or Customer and/or any other individual to the extent Tech Soft 3D is notified of such compromise in accordance with the preceding sentence or to the extent Tech Soft 3D otherwise becomes aware or suspects that any Credentials or any portion of the Tech Soft 3D On-Premise Applications have or are imminently likely to be compromised. Customer will provide Tech Soft 3D with such cooperation and assistance related to any such unauthorized use as Tech Soft 3D may reasonably request.

4.5. Cooperation. Customer agrees to provide Tech Soft 3D with such cooperation, materials, information, access and support which Tech Soft 3D deems to be reasonably required to allow Tech Soft 3D to successfully provide the Professional Services, the Tech Soft 3D On-Premise Applications, and Support and Maintenance, including as may be set forth in an applicable Sales Order. Customer understands and agrees that Tech Soft 3D’s obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.

5. Intellectual Property Ownership; Feedback.

5.1. Tech Soft 3D Materials. Except for the limited license expressly granted under Section 2.1, as between the parties, Tech Soft 3D have and will retain all right, title and interest in and to the Tech Soft 3D Materials including all intellectual property rights therein.

5.2. Customer Data. As between the parties, Customer owns all right, title, and interest, including all intellectual property rights therein, in and to the Customer Data. Customer hereby grants to Tech Soft 3D a non-exclusive, non-transferable (except as set forth herein), worldwide, royalty-free, license to, and to permit its Subcontractors to, access, receive, download (as applicable), store, reproduce, distribute, modify and otherwise use the Customer Data to: (a) provide the Tech Soft 3D On-Premise Applications to Customer and its Authorized Users and to provide the Professional Services and Support and Maintenance; (b) to improve the Tech Soft 3D On-Premise Applications, the Professional Services or the Support and Maintenance; (c) for all internal purposes; and (d) as otherwise permitted by the Agreement or an applicable Sales Order.

5.3. Performance Data. Without limiting Section 5.1, as between the parties, Tech Soft 3D owns all Performance Data. Performance Data does not include any Customer Data or Customer-specific output resulting from the use of the Tech Soft 3D OnPremise Applications (“Customer Output”), but may include aggregated or anonymized information derived from Customer Output. Tech Soft 3D may use Performance Data as a part of analytical models created to monitor and improve the Tech Soft 3D On-Premise Applications, to develop additional services and offerings, and for all other internal purposes. In addition, Tech Soft 3D may make such Performance Data commercially available; provided, that Tech Soft 3D (a) will take steps to ensure that Customer’s identity will not be discernable to third parties in any such Performance Data, and (b) will not include any Personal Data in any such Performance Data.

5.4. Feedback. If Customer or any of its employees, contractors or agents sends or transmits any communications or materials to Tech Soft 3D by mail, email, telephone, in person or otherwise, suggesting or recommending changes to the Tech Soft 3D Materials, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Customer hereby grants to Tech Soft 3D (on Customer’s behalf, and on behalf of its employees, contractors and/or agents), all right, title, and interest in and to such Feedback, including all intellectual property rights therein, including the right to use and incorporate, without any attribution or compensation to any party, such Feedback (including any ideas, know-how, concepts, techniques, or other intellectual property rights contained therein) for any purpose whatsoever, although Tech Soft 3D is not required to use any Feedback.

5.5. No Implied Licenses. No licenses are granted by either party except for those expressly set forth in the Agreement and all rights not expressly licensed hereunder are expressly reserved. Nothing in the Agreement restricts, or should be deemed to restrict, either party’s right to exercise any rights or licenses received from any third parties or, except as expressly stated herein, to grant other or similar rights or licenses to any third parties.

5.6. Open Source Software. Customer acknowledges and agrees that (a) certain elements of the Tech Soft 3D On-Premise Applications may be subject to “open source” or “free software licenses” (“Open Source Software”) owned by third parties, (b) such Open Source Software is not licensed under Section 2.1, and (c) such Open Source Software is instead licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in the Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of the applicable end-user license for such Open Source Software.

6. Subscription Term, Fees, and Payment.

6.1. Subscription Term and Renewals. Unless otherwise set forth on the applicable Sales Order, each Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least [thirty (30)] days prior to expiration of the then-current Subscription Term. The rates for any Subscription Term renewals shall be Tech Soft 3D’s then-current list Subscription rates.

6.2. Subscription Fees. Customer shall pay all fees, costs and other charges for each Subscription as specified on the applicable Sales Order (collectively, “Fees”) and may purchase additional Subscriptions by entering into additional Sales Orders with Tech Soft 3D. Fees for additional Subscriptions or renewals will be at Tech Soft 3D’s thencurrent list prices for Subscriptions unless otherwise set forth on an Sales Order. If Tech Soft 3D sets a price on an Sales Order for additional Subscriptions, such prices are valid during the then-current Subscription Term.

6.3. Payment Terms. All Fees are as set forth in the applicable Sales Order and shall be paid by Customer within thirty (30) days of receipt of Tech Soft 3D’s invoice unless otherwise specified in the applicable Sales Order. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Tech Soft 3D). Except as set forth in Section 10.1, Fees are non-refundable upon payment. Payments will be made without right of set-off or chargeback. If Customer fails to make any payment when due, without limiting Tech Soft 3D’s other rights and remedies: (a) late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by Applicable Law, whichever is less; and (b) Customer shall reimburse Tech Soft 3D or its designee for all costs incurred by Tech Soft 3D or its designee in collecting any late payments or interest. If payment of any Fee is overdue, Tech Soft 3D may also suspend provision of (as the case may be) the Tech Soft 3D On-Premise Applications, the Professional Services, and/or Support and Maintenance, until such delinquency is corrected.

7. Termination; Suspension.

7.1. Termination. In addition to any other express termination right set forth in the Agreement: (a) Tech Soft 3D may terminate the Agreement or any applicable Sales Order(s), effective on written notice to Customer (i) if Customer fails to pay any amount when due hereunder, and such failure continues more than [five] days after Tech Soft 3D’s or its designee’s delivery of written notice thereof, (ii) if Customer breaches any of its obligations under Section 2.5 or Section 11, or (iii) if Tech Soft 3D’s legal counsel reasonably determines that Tech Soft 3D’s continued performance hereunder will or is likely to violate Applicable Law; or (b) either party may terminate the Agreement (including all related Sales Orders), effective on written notice to the other party, if the other party: (A) fails to cure any material breach of the Agreement (if curable) within thirty (30) days after written notice of such breach; (B) ceases operation without a successor; or (C) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).

7.2. Effect of Expiration or Termination. Upon expiration or termination of the Agreement for any reason: (a) any amounts owed to Tech Soft 3D under the Agreement before the effective date of such expiration or termination will be immediately due and payable; (b) Customer shall cease any and all use of the Tech Soft 3D On-Premise Applications, and destroy all copies of the latter and so certify to Tech Soft 3D in writing; (c) each party will return to the other party the Confidential Information of the other party that it obtained during the course of the Agreement; and (d) Customer must certify in writing to Tech Soft 3D that it has returned or destroyed all Tech Soft 3D Confidential Information. In the event that Tech Soft 3D terminates the Agreement, Customer will pay any unpaid fees for the remainder of the Subscription Term(s) under all Sales Orders. For up to 90 days after any expiration or termination of the Agreement, upon Customer’s written request, Tech Soft 3D will make Customer Data available to Customer for download. Customer shall have no obligation to maintain or provide any Customer Data after [90] days of expiration or termination of the Agreement and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. There is no additional charge for delivery of Customer Data to Customer within such 90 day period in standard data formats recognized by Tech Soft 3D. If Customer makes unusual requests for Tech Soft 3D’s assistance in retrieving Customer Data, such as requiring the provision of data in nonstandard formats, Customer may acquire Professional Services at Tech Soft 3D’s then-current hourly rates.

7.3. Suspension of Tech Soft 3D On-Premise Applications. Notwithstanding anything to the contrary in the Agreement, Tech Soft 3D may temporarily suspend or disable the access or right of Customer or any Authorized User to use any portion or all of the Tech Soft 3D OnPremise Applications if: (i) Tech Soft 3D reasonably determines that (i) there is a threat or attack on any Tech Soft 3D Materials, (ii) Customer’s or any Authorized User’s use of Tech Soft 3D Materials disrupts or poses a security risk to Tech Soft 3D Materials or to any other customer or vendor of Tech Soft 3D, (iii) Customer, or any Authorized User, is using Tech Soft 3D Materials for fraudulent or illegal activities, (iv) Tech Soft 3D’ provision of the Tech Soft 3D OnPremise Applications to Customer or any Authorized User is prohibited by Applicable Law or could expose Tech Soft 3D or its network to third-party liability or cause Tech Soft 3D or its network to violate any Applicable Law, (v) Applicable Law make it impracticable or unlawful for Tech Soft 3D to continue to provide the Tech Soft 3D On-Premise Applications to Customer, or (vi) Customer breaches Section 2.5; (b) any vendor of Tech Soft 3D has suspended or terminated Tech Soft 3D’ access to or use of any Third Party Products required to enable Customer to access the Tech Soft 3D On-Premise Applications; (c) in accordance with Section 4.4; or (d) in accordance with Section 6.3 (any such suspension described in subclause (a), (b), (c), or (d), a “Use Suspension”). Tech Soft 3D shall use commercially reasonable efforts to provide written notice of any Use Suspension to Customer and to provide updates regarding resumption of access to the Tech Soft 3D On-Premise Applications following any Use Suspension. Tech Soft 3D shall use commercially reasonable efforts to resume providing access to the Tech Soft 3D On-Premise Applications as soon as reasonably possible after the event giving rise to the Use Suspension is cured. Tech Soft 3D will have no liability for any damage, liabilities, losses (including any loss of Customer Data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Use Suspension.

7.4. Survival. This Section 7.4, Sections 5, 7.2, 7.4, 8.2, 8.3, 9, 10, 11.1, 11.2, 11.3 and 12. as well as any other provision of the Agreement that, by its nature or express terms, is intended to survive (including outstanding payment obligations) shall survive any termination or expiration of the Agreement.

8. Warranties; Disclaimers.

8.1. Mutual. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its state of organization, and it has the right to enter into and perform its obligations under the Agreement; (b) the execution, delivery and performance of the Agreement does not and will not conflict with any other agreement of such party or any judgment, order, or decree by which it is bound; (c) it will comply with all Applicable Law, and satisfy all obligations owed to third parties and/or any governmental authority, in connection with the performance of its obligations hereunder; and (d) it has and shall maintain all rights, authorizations and licenses that are required for it to grant the rights and licenses herein, and to perform its obligations set forth herein.

8.2. Customer. Customer further represents and warrants that: (a) it owns or has the right to make all Customer Data available to Tech Soft 3D; (b) the posting and use of the Customer Data by or on behalf of Tech Soft 3D hereunder in accordance with the Agreement, including on or through the Tech Soft 3D On-Premise Applications, will not (i) infringe, misappropriate or otherwise violate the intellectual property, privacy, publicity, or other rights of any person or entity or Applicable Law, or (ii) breach any contract between Customer and a third party; and (c) Customer Data will not include any (i) information, documents or technical data that are U.S. Government Classified, Controlled Unclassified Information, ITAR or EAR controlled or otherwise have been determined by the United States Government or by a foreign government to require protection against unauthorized disclosure for reasons of national security, or (ii) data that is “protected health information, including any medical, demographic, visual or descriptive information that can be used to identify a particular patient/individual” and/or any other data subject to the U.S. “Health Insurance Portability & Accountability Act of 1996” and regulations promulgated under that Act.

8.3. DISCLAIMER. TECH SOFT 3D MAKES THE TECH SOFT 3D MATERIALS AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY COURSE OF PERFORMANCE OR TRADE USAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TECH SOFT 3D DOES NOT WARRANT THAT THE TECH SOFT 3D ON-PREMISE APPLICATIONS OR ANY OTHER TECH SOFT 3D MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION), BE ENTIRELY SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERRORS, OR BE FREE FROM LOSS OR DELETION OF DATA. ALL THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY PRODUCTS.

9. LIMITATION OF LIABILITY. EXCEPT FOR (a) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11, (b) LIABILITY CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (c) PAYMENT OBLIGATIONS, AND (d) CUSTOMER’S BREACH OF SECTION 2.5 OR SECTION 4.3, AND WITHOUT LIMITING EITHER PARTY’S OBLIGATIONS UNDER SECTION 10, IN NO EVENT SHALL: (i) TECH SOFT 3D BE LIABLE FOR ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES; (ii) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; OR (iii) EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER TO TECH SOFT 3D UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10. Indemnification.

10.1. Indemnity by Tech Soft 3D. Tech Soft 3D shall indemnify, defend, and hold harmless Customer and its affiliates, and its and their respective directors, officers, employees, agents, successors and assigns (collectively, the “Customer Parties”) from and against any and all losses, damages, liabilities, costs (including reasonable outside attorneys’ fees and court costs) (collectively, “Losses”) incurred in connection with any third-party claim, suit, action, demand, investigation or other proceeding (each, a “Claim”) resulting from any allegation that the Tech Soft 3D On-Premise Applications, to the extent used in accordance with the Documentation and the Agreement, infringes, misappropriates or otherwise violates a third party’s intellectual property rights (except to the extent the alleged infringement, misappropriation or violation arises out of (a) Customer’s failure to use an Update that Tech Soft 3D communicated was required, (b) Customer Data, (iii) use of the Tech Soft 3D On-Premise Applications in combination with data, software, hardware, equipment, or technology not provided by Tech Soft 3D or authorized by Tech Soft 3D in writing, or (iv) modifications to the Tech Soft 3D On-Premise Applications not made by Tech Soft 3D). If Tech Soft 3D reasonably believes (or is notified) that a SaaS Service infringes, misappropriates or otherwise violates a third party’s intellectual property rights, then Tech Soft 3D may, at Tech Soft 3D’ sole discretion, (i) modify or replace the SaaS Service, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use of the SaaS Service, provided that, if Tech Soft 3D determines that neither alternative is reasonably available, then either party may terminate the Agreement, in its entirety or with respect to the affected component or part, by giving the other party at least thirty (30) days’ prior written notice thereof and, as Customer’s remedy therefor, Tech Soft 3D will refund Customer the portion of any prepaid Fees attributable to the terminated portion of the Agreement. This Section 10.1 sets forth Customer’s sole remedies and Tech Soft 3D’ sole liability and obligation for any actual, threatened, or alleged claims that a SaaS Service infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.

10.2. Indemnity by Customer. Customer shall indemnify, defend, and hold harmless Tech Soft 3D and its affiliates, and its and their respective directors, officers, employees, subcontractors, agents, successors and assigns (collectively, the “Tech Soft 3D Parties”) from and against any Losses incurred in connection with any Claim resulting from: (a) the actual or alleged material breach of any of Customer’s representations, warranties or obligations hereunder; (b) the gross negligence or willful misconduct of Customer or its Authorized Users; (c) use of any of the Tech Soft 3D Materials in a manner not authorized by the Agreement; (d) use of any of the Tech Soft 3D Materials in combination with data, software, hardware, equipment or technology not provided by Tech Soft 3D or authorized by Tech Soft 3D in writing; (e) Customer Data; and/or (f) modifications to the Tech Soft 3D Materials made by or on behalf of Customer.

10.3. Procedure. The party(ies) seeking indemnification under this Section 10 (collectively, the “Indemnified Party”) will provide prompt written notice of the existence of the applicable Claim to the indemnifying Party (the “Indemnifying Party”), provided that the Indemnified Party’s failure to do so shall not diminish the Indemnifying Party’s obligations under this Section 10 except to the extent that the Indemnifying Party is materially prejudiced as a result of such failure. In addition, the Indemnified Party shall (a) reasonably cooperate with the Indemnifying Party with respect to the defense and settlement of such Claim, and (b) permit the Indemnified Party, at its option, to participate in the defense and settlement of such Claim (at its expense and with counsel of its own choosing). Notwithstanding the foregoing, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent (not to be unreasonably withheld or delayed), enter into any settlement of any Claim, unless the settlement (i) is solely for the payment of monies for which the Indemnifying Party shall be responsible, (ii) does not impose injunctive or other equitable relief on any of the Customer Parties or Tech Soft 3D Parties, as applicable, and (iii) includes a complete, unconditional release of each of the Customer Parties or Tech Soft 3D Parties, as applicable, from any liability relating to the settled Claim.

11. Confidential Information; Data Security.

11.1. No Use or Disclosure. From time to time during the Term, either party may disclose or make available Confidential Information to the other party. The receiving party shall not use the disclosing party’s Confidential Information except to the extent necessary to fulfill its obligations under the Agreement. In addition, the receiving party shall not disclose the disclosing party’s Confidential Information to any third party and shall maintain such Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information (a) on an “as-needed” basis to its directors, officers, employees, advisors, agents, subcontractors and/or consultants who are bound by obligations materially similar to this Section 11, provided that the receiving party will remain liable for any breach by any such parties of these provisions and for any damages caused thereby, and (b) to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order, or (ii) to establish a party’s rights under the Agreement, including to make required court filings.

11.2. Return or Destruction. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or, at the disclosing party’s request, destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.

11.3. Expiration. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from expiration or termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.

11.4. Data Availability and Security. During the Term, each party will implement and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the other party’s data in its possession or control as well as any systems integrated pursuant to the Agreement. Such safeguards should be commensurate with the type and amount of such data being stored, processed or otherwise used by such party and should, at a minimum, protect such data against reasonably anticipated threats or hazards, including from unauthorized access, destruction, use, modification, or disclosure. While Tech Soft 3D will use commercially reasonable efforts to provide continuous access to its Service, and to enable the export of Content in other industry standard file formats, Tech Soft 3D does not guarantee that any Customer Data will be available or useable by Customer following the termination of Customer’s Subscription or otherwise. Moreover, Tech Soft 3D does not guarantee the security of any Customer Data. Customer is encouraged to practice effective and data retention practices.

12. General.

12.1. Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.2. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to choice or conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA).

12.3. Disputes; Arbitration. Any claim, dispute or controversy between the parties arising out of or relating to the Agreement, or the making, performance, breach or interpretation of the rights and obligations set forth in the Agreement, including any issue concerning the extent to which a claim, dispute or controversy is subject to arbitration, or any claim, dispute or controversy concerning the applicability, interpretation, or enforceability of these dispute resolution procedures, including any contention that all or part of these procedures is invalid or unenforceable (each, a “Dispute”) shall be resolved exclusively in accordance with the following procedure:

a. On written request from either party, appropriate executive representatives from each party shall meet and attempt to resolve the Dispute through good faith discussions.

b. If such representatives are unable to resolve the Dispute within five business days after their initial meeting pursuant to Section 12.3(a), or if ten days have passed from the initial meeting request therefor, then the parties shall endeavor to settle the Dispute by confidential mediation conducted in Santa Clara County, California and administered by the Judicial Arbitration and Mediation Service or its successor (“JAMS”). Each party shall be responsible for any out-of-pocket costs it incurs in connection with such mediation, provided that any amounts payable to JAMS (including administrative costs and mediator compensation) shall be borne equally by the parties. c. If the Dispute is not successfully resolved within thirty (30) days after commencement of mediation pursuant to Section 12.3(b) then, at the initiation by either party, the Dispute will be resolved by binding arbitration in Santa Clara County, California, before a single arbitrator from JAMS mutually agreeable to the parties, and, if no agreement is reached on an arbitrator, before the arbitrator from JAMS selected in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures. The arbitration will be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. The arbitration proceedings and arbitration award shall be maintained by the parties and by all participants as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management. The arbitrator shall require exchange by the parties to the arbitration of documents relevant to the issues raised by any claim, defense or counterclaim or on which the producing party may rely in support of or in opposition to any claim, defense or counterclaim, with due regard for eliminating undue burden and expense and the intended lower cost nature of arbitration. At the request of a party, the arbitrator may at his or her discretion order the deposition of witnesses. The decision of the arbitrator shall be binding on all of the parties to the arbitration, and any right to judicial action on any matter subject to arbitration hereunder is hereby waived, unless otherwise provided by Applicable Law. The arbitrator shall be bound by the terms and conditions of the Agreement and shall not extend, modify or suspend any of the provisions of the Agreement. The decision of the arbitrator, which will be issued in a reasoned award, will be enforceable according to the applicable provisions of the California Civil Rules of Procedure. The prevailing party in any arbitration conducted hereunder shall be entitled to recover from the losing party all reasonable fees, costs and expenses for outside attorneys, experts and other third parties (including its share of JAMS administrative costs and arbitrator compensation) incurred by the prevailing party in connection with such arbitration (including any motion to compel arbitration and costs of enforcement of the arbitration award). d. IF FOR ANY REASON THE PROVISIONS OF THE AGREEMENT REQUIRING ARBITRATION ARE DECLARED UNENFORCEABLE, VOID, OR VOIDABLE, OR WITH RESPECT TO ANY ACTION OR JUDICIAL PROCEEDING PERMITTED UNDER SECTION 12.3(c), EACH PARTY HEREBY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY.

12.4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Cover Page of the Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section 12.4) and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); (c) one day after it is sent if by next day delivery by a major commercial delivery service; or (d) upon confirmation of transmission if sent by electronic mail.

12.5. Amendments. Tech Soft 3D reserves the right to modify these Terms at any time and in its sole discretion. Tech Soft 3D will notify Customer of any changes to these Terms by: (i) posting an updated version of these Terms to the Tech Soft 3D On-Premise Applications; (ii) emailing a copy of the updated version of these Terms to Customer at the email address associated with Customer’s Tech Soft 3D account; or (iii) sending Customer a copy of the updated version through Customer’s Tech Soft 3D account, or otherwise notifying Customer when Customer is logged into its Tech Soft 3D account. Customer should regularly review the Tech Soft 3D On-Premise Applications, Customer’s Tech Soft 3D account and the email associated with Customer’s Tech Soft 3D account for any such notices or messages, as Customer’s or its Authorized Users’ continued use of the Tech Soft 3D On-Premise Applications after any such changes were so posted or sent to Customer (as applicable) constitutes Customer’s agreement to such changes.

12.6. Waivers. Except as otherwise set forth in the Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.7. Entire Agreement. The Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

12.8. Interpretation. In the event of an express conflict between the Agreement and any Sales Order, the terms of the Agreement shall govern except to the extent such Sales Order expressly states that it supersedes the specific provision of the Agreement. The section headings used in the Agreement are intended for convenience only, and will not be deemed to affect in any manner the meaning or intent of the Agreement or any provision hereof. Whenever the words “include”, “includes” or “including” are used in the Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. The parties have participated jointly in the negotiation and drafting of the Agreement and each of the parties has had the opportunity to have its legal counsel review the Agreement on its behalf. If an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party because of the authorship of any provision of the Agreement. Unless otherwise expressly provided in the Agreement, each party shall be solely responsible for any and all costs and expenses incurred by such party in connection with its performance hereunder.

12.9. Export Regulation. The Tech Soft 3D On-Premise Applications utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Tech Soft 3D On-Premise Applications or the underlying software or technology to, or make the Tech Soft 3D OnPremise Applications or the underlying software or technology accessible from, any jurisdiction or country to which export, reexport, or release is prohibited by law, rule, or regulation. Customer shall comply with all Applicable Law, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Tech Soft 3D On-Premise Applications or the underlying software or technology available outside the US.

12.10. US Government Rights. Each of the Documentation and the software components that constitute the Tech Soft 3D On-Premise Applications is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Tech Soft 3D On-Premise Applications and Documentation as are granted to all other Customers, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

12.11. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 11 or, in the case of Customer, Section 2.5, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

12.12. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.13. No Third-Party Beneficiaries. Except as expressly set forth herein, the Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

12.14. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic, pandemic (including the novel coronavirus, Covid-19 pandemic), invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (collectively, “Force Majeure Events”). In the event of such failure or delay, the date of delivery or performance will be extended for a period not to exceed the time lost by reason of the failure or delay; provided that the party affected by such delay or failure is using reasonable commercial efforts to mitigate or eliminate the cause of such delay failure or its effects and, if events in the nature of the Force Majeure Event were foreseeable, used commercially reasonable efforts prior to its occurrence to anticipate and avoid its occurrence or effect. Each party shall notify the other in writing promptly of any failure or delay in, and the effect on, its performance.

12.15. Assignment. Customer may not assign the Agreement or assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Tech Soft 3D, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section 12.15 will be null and void. The Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

12.16. Publicity; Attribution. Neither party may issue a public statement, public announcement, press release or publicity or marketing materials regarding the Agreement without the prior consent of the other party. Notwithstanding the foregoing, Elementus may indicate that Customer is a Customer and display Customer’s logo for such purposes on Tech Soft 3D’s website and standard marketing materials. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Tech Soft 3D in writing.

12.17. Counterparts; Signatures. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Faxed or electronic signatures will have the same effect as original signatures.

 

SCHEDULE 1 DEFINITIONS

 

1. “Tech Soft 3D Materials” means the API, the Tech Soft 3D On-Premise Applications, the Documentation, the Tech Soft 3D Systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Tech Soft 3D or any Subcontractor in connection with the Tech Soft 3D On-Premise Applications or Professional Services, that otherwise comprise or relate to the Tech Soft 3D On-Premise Applications, Professional Services or Tech Soft 3D Systems, or that are derived from Tech Soft 3D’s’ monitoring of Customer’s or its Authorized Users’ access to and use of the Tech Soft 3D On-Premise Applications (excluding Customer Data).

 

2. “Tech Soft 3D Systems” means the information technology infrastructure used by or on behalf of Tech Soft 3D in providing the Tech Soft 3D On-Premise Applications and Professional Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Tech Soft 3D or through the use of third-party services.

 

3.“Affiliate” means any entity that Customer, directly or indirectly, controls; an entity that controls Customer; or an entity that is under common control with Customer. For purposes of this provision, “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.

 

4.“Agreement” means the Master Subscription Agreement entered into by and between Tech Soft 3D and Customer and effective as of the date last set forth on the signature page thereof, together with these Terms and all other Exhibits, Schedules and Sales Orders attached hereto and thereto and/or incorporated herein and therein by reference, which constitutes the agreement between Tech Soft 3D and Customer with respect to Customer’s use of and access to the products and services identified in the applicable Sales Order(s).

 

5. “API” means, collectively, all application programming interfaces used by Customer or its Authorized Users to access certain functionality provided by the Tech Soft 3D On-Premise Applications.

 

6. “Applicable Law” means any law, statute, ordinance, order, rule, code, regulation, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, in effect from time to time and applicable to the relevant activities contemplated by the Agreement.

 

7. “Authorized Users” means Customer’s employees consultants, contractors and agents who are authorized by Customer in accordance with the Agreement to access and use the Tech Soft 3D On-Premise Applications purchased under an Sales Order pursuant to the rights granted to Customer hereunder.

 

8. “Customer” means the entity entering into the Agreement with Tech Soft 3D.

 

9. “Customer Failure” means Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement.

 

10.“Customer Systems” means Customer’s information technology infrastructure, including hardware, software, databases (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

 

11. “Confidential Information” means all nonpublic or proprietary data and other information of a party, whether orally or in written, electronic, or other form or media, and which is either (a) marked, designated or otherwise identified as “confidential”, or (b) is of a type which a reasonable person would understand is confidential or proprietary in nature even if not so marked, designated or identified, including trade secrets, customer lists, business proposals and plans, pricing, technical data, product ideas, methods, processes, code, data, inventions, statistics, programs, research, technology, network designs, passwords and sign-on codes, personnel and staffing, and contract and financial information. Without limiting the foregoing, (a) the Tech Soft 3D Materials and the terms of the Agreement (including the Fees and pricing terms) are the Confidential Information of Tech Soft 3D, and (b) Customer Data is the Confidential Information of Customer. Confidential Information does not include information that, at the time of disclosure is: (i) publicly available when disclosed or becomes publicly available without fault of the receiving party; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving party.

 

12. “Customer Data” means information, data (including Personal Data), and other content, in any form or medium, that is stored, retrieved, submitted or otherwise transmitted by or on behalf of Customer or an Authorized User through the Tech Soft 3D On-Premise Applications or otherwise provided directly to Tech Soft 3D under the Agreement by Customer, its Authorized Users or any third parties acting on Customer’s behalf. For the avoidance of doubt, Customer Data excludes Performance Data.

 

13. “Documentation” means the online user guides, manuals, specifications and other related documentation provided by Tech Soft 3D for the Tech Soft 3D On-Premise Applications, as updated from time to time.

 

14. “Exception” means: (a) scheduled maintenance (such as upgrades to hardware, network device operating systems or configurations, or application server operating systems; upgrades or configuration changes to hosted applications; upgrades or configuration changes to database software; or upgrades or configuration changes to virtual software management systems); (b) access to or use of the Tech Soft 3D OnPremise Applications by Customer or its Authorized Users that does not comply with the Agreement and the Documentation; (c) Customer Failure or any deficiency or failure of Customer Systems; (d) failure, interruption, outage or other problem with servers, services, software, hardware, systems, networks, facilities or other matters that are not within control of Tech Soft 3D or its subcontractors or agents; (e) a Force Majeure Event; (f) a denial of service attack or unauthorized access (i.e., hacking), or attempting to prevent such events; (g) emergency fixes not tied to a previous defect or current or previous production release that has gone through user acceptance testing, which is requested or approved by Customer and is necessary for Customer’s business operations or compliance with law; or (h) suspension of the Professional Services or access to the Tech Soft 3D On-Premise Applications, or termination of the Agreement, in accordance with the terms hereof.

 

15.“Performance Data” means all data (a) regarding installation, registration, and use of the Tech Soft 3D On-Premise Applications, and (b) related to performance of the Tech Soft 3D On-Premise Applications, including response times, load averages, usage statistics, activity logs and metadata. For the avoidance of doubt, Performance Data excludes Customer Data or Customer-specific output resulting from the use of the Tech Soft 3D OnPremise Applications (“Customer Output”), but may include aggregated or anonymized information derived from Customer Output.

 

16. “Personal Data” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, or any other information that is regulated as ‘personal information’ or ‘personal data’ under Applicable Law.

 

17. “Professional Services” means professional consulting, implementation and/or configuration services purchased by Customer in the applicable Sales Order and relating to assistance with Tech Soft 3D On-Premise Applications installation, deployment or usage, or development or delivery of additional related software or technology.

 

18. “Tech Soft 3D On-Premise Applications” means the proprietary Tech Soft 3D products and services that may be set forth on an Sales Order and subsequently made available by Tech Soft 3D (but excluding Third Party Products or infrastructure), as updated from time to time.

 

19.“Sales Order” means an Tech Soft 3D standard ordering document referencing the Agreement and reflecting the Tech Soft 3D On-Premise Applications, Professional Services, and Support and Maintenance (as applicable), purchased by Customer, as may be embodied in this original Agreement, or in separate or subsequent Sales Orders to such Agreement.

 

20. “Sales Order Effective Date” means the later to occur of (a) Sales Order signed by Customer and Tech Soft 3D, and (b) the date of access granted to the Tech Soft 3D On-Premise Applications, if any.

 

21.“Subscription” means the Customer’s right to access and use the relevant Tech Soft 3D On-Premise Applications and Support and Maintenance on a subscription basis, as and to the extent listed on a mutually executed Sales Order.

 

22.“Subscription Term” means the duration of a Subscription as set forth on an Sales Order or as specified in Section 6.1.

 

23.“Support and Maintenance” means the applicable support and maintenance services as may be provided by Tech Soft 3D.

 

24.“Third Party Products” means materials and information, in any form or medium, including any Open Source Software or other software, documents, data, content, specifications, products, equipment or components of or relating to the Tech Soft 3D On-Premise Applications that are not proprietary to Tech Soft 3D.