IMPORTANT – PLEASE READ CAREFULLY THESE TERMS AND OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”), WHICH CONSTITUTES A BINDING AGREEMENT BETWEEN YOU (OR THE COMPANY YOU REPRESENT) (COLLECTIVELY “YOU” OR “YOUR”) AND MAKERBOT INDUSTRIES, LLC AND ITS AFFILIATES (“MAKERBOT,” “US,” “OUR,” AND/OR “WE”). BY CLICKING ON THE “I AGREE” BUTTON, YOU AGREE TO THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”):
1. AGREEMENT FOR LICENSED SOFTWARE
This Agreement is for MakerBot Print (MakerBot Desktop 4.0) and the MakerBot Replicator 3D Printing Platform, which are software that may be provided separately in downloadable format or in the form of pre-installed, embedded software on a MakerBot product and which includes all associated media, printed materials and “online” or electronic documentation (the “Licensed Software”). You may need devices that meet the system and compatibility requirements for the Licensed Software, which may change from time to time. By downloading the Licensed Software You agree to be bound by the terms of this Agreement. If You do not agree to the terms and conditions of this Agreement or do not have the authority warranted above, do not download or use the Licensed Software.
UPDATES AND MODIFICATIONS
MakerBot may from time to time provide updates to the Licensed Software, but is not under any obligation to do so. Such updates (defined below) will be supplied according to MakerBot’s then-current policies, which may include automatic implementation without any notice to You.
You may need to manually install the updates to the Licensed Software that we may introduce from time to time, in our sole discretion, to use the Licensed Software. The Licensed Software may communicate with MakerBot servers from time to time to check for available updates to the Licensed Products and to the functionality of the Licensed Products, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). Based on the settings for the device You installed the Licensed Software on (the “Device”), when the Device is connected to the Internet, either (a) the Licensed Software will automatically download and install all available Updates; or (b) You may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Licensed Software or portions thereof may not properly operate should You fail to do so. You further agree that all Updates will be deemed part of the Licensed Software and be subject to all terms and conditions of this Agreement.
MakerBot reserves the right to modify this Agreement at any time by posting the modified Agreement at makerbot.com/legal. Such modifications will be effective immediately, and Your continued use of the Licensed Software after such date will constitute Your agreement to be bound by the modified Agreement.
Neither MakerBot nor any of its suppliers is obligated to provide any services, updates or upgrades to the Licensed Software. You shall preserve all copyright and other proprietary rights notices in the Licensed Software and all copies thereof.
NETWORK ACCESS AND REMOTE FUNCTIONALITY
The Licensed Software may allow you to connect the Licensed Software to your Internet wireless service for remote access and function of your Device. Your use of the Licensed Software operates as your consent to the transmission of standard information from your Device (including but not limited to technical information about your Device) for the connection to the Internet.
REMOVAL OF CONTENT
You acknowledge that MakerBot is not responsible or liable in any way for any of Your Files and has no duty to pre-screen Your Files. However, MakerBot reserves the right at all times to determine whether Your Files are appropriate and in compliance with this Agreement, and may pre-screen, move, refuse, modify and/or remove Your Files at any time, without prior notice and in its sole discretion, if Your Files are found to be in violation of this Agreement or are otherwise objectionable.
MakerBot reserves the right to restrict access to the Licensed Software from certain locations. There may be limits on the types of content You can store in the Cloud Library using the Licensed Software, such as file types we do not support. MakerBot reserves the right to set storage limits for the Cloud Library.
For the avoidance of doubt, the Licensed Software and any copies of the Licensed Software are only licensed under this Agreement, and no title in or to the Licensed Software or such copies passes to You. Except for the License, You are granted no other right in or to the Licensed Software, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise. You shall be primarily responsible and liable for the acts and omissions of any access to the Licensed Software on Your behalf.
3. LICENSE RESTRICTIONS
Other than as expressly permitted by the License, You shall not do any of the following: (a) copy or reproduce the Licensed Software; (b) license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Licensed Software or make the Licensed Software available to any third party other than an authorized End User; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects of, the Licensed Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Licensed Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Licensed Software, such as features that restrict or monitor use of the Licensed Software; (f) make a derivative work of the Licensed Software, or use the Licensed Software to develop any service or product that is the same as (or substantially similar to) the Licensed Software; (g) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Licensed Software; and/or (h) use the Licensed Software to infringe, misappropriate or violate any third party’s intellectual property rights, moral rights, privacy or other personal right, or any law.
The above restrictions are limitations on the License where applicable, and Your full compliance with the above is a condition to the License. For the avoidance of doubt, references in this section to “Licensed Software” shall be taken to mean (i) the Licensed Software, whether in whole or in part; and (ii) any manuals, specifications, and similar documentation related to the Licensed Software, which accompany the Software, or which otherwise are made available by MakerBot, which may change from time to time (“Documentation”).
You acknowledge that the Licensed Software contains information and materials that are confidential and proprietary to MakerBot, and therefore You agree that a breach or threatened breach of the License restrictions set forth above may cause MakerBot to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if MakerBot seeks an injunction, specific performance, or other equitable relief to enforce any provision under this License Restrictions section, MakerBot shall not be required to post a bond or to prove the likelihood of irreparable harm.
To the extent You are given the right, under any law applicable to You, to receive information and/or materials for purposes of making the Licensed Software interoperable with other software products, You shall request from MakerBot (in a detailed writing) access to such information and/or materials, and if MakerBot accepts such request, MakerBot may (in its sole discretion) impose additional conditions on such access and use.
4. OPEN-SOURCE SOFTWARE
The Licensed Software may include third party software components that are incorporated into or distributed with the Licensed Software and are subject to open source and/or pass-through commercial licenses and/or notices (“Open Source Licensed Software” and “Open Source Licensed Software Terms and Notices”, respectively). MakerBot may make available in any Licensed Software Documentation a list (or other index) of such Open Source Licensed Software and Open Source Licensed Software Terms and Notices. Copies of such Open Source Licensed Software Terms and Notices have been reproduced in the electronic documentation found in the Licensed Software by accessing the “About” tab, and You hereby agree to comply with the Open Source Licensed Software Terms and Notices contained therein. You acknowledge that any such Open Source Licensed Software is not licensed under (and is not subject to the terms of) this Agreement, and instead is separately licensed to you pursuant to the Open Source Licensed Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Open Source Licensed Software Terms and Notices, the latter shall control. Any covenants, representations, warranties, guarantees, conditions, indemnities or other commitments made by MakerBot in this Agreement concerning the Licensed Software (if any), are made by MakerBot and not by any authors, licensors, or suppliers of, or contributors to, such Open Source Licensed Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, MakerBot does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Open Source Licensed Software.
5. CONSENT TO USE OF USAGE STATISTICS
You hereby acknowledge that the Licensed Software and Documentation are or may be protected by laws, treaties, and conventions governing intellectual property. All right, title, and interest, including all intellectual property rights, in and to the Licensed Software (including any and all copies thereof but excluding any Open Source Licensed Software included therein) shall be owned and retained by MakerBot or licensors or suppliers. Any rights not expressly granted by MakerBot in this Agreement are expressly reserved by MakerBot or its licensors or suppliers. You acknowledge that you acquire no ownership interest in the Licensed Software by virtue of downloading or using the Licensed Software.
7. DISCLAIMER OF WARRANTIES
THE LICENSED SOFTWARE, ITS DOCUMENTATION, AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY MAKERBOT, ARE PROVIDED TO YOU FREE OF CHARGE AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT, REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY MAKERBOT AND ITS LICENSORS AND SUPPLIERS.
IN ADDITION, NEITHER MAKERBOT NOR ITS LICENSOR OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SOFTWARE, DOCUMENTATION, AND SAID OTHER ITEMS; (B) THAT YOUR USE OF THE SOFTWARE, DOCUMENTATION, OR SAID OTHER ITEMS WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE; OR (C) THAT DEFECTS WILL BE CORRECTED, OR THAT THE LICENSED SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Some jurisdictions do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to You, MakerBot limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.MakerBot warrants that the Licensed Software provides the functionalities set forth in the documentation (the “agreed upon functionalities”) for the limited warranty period following receipt of the Licensed Software when used on the recommended hardware configuration. As used in this Section, “limited warranty period” means two (2) years if you are a consumer using the Licensed Software for noncommercial personal use, and one (1) year for all other users. Non-substantial variation from the agreed upon functionalities shall not be considered and does not establish any warranty rights. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE PROVIDED TO YOU FREE OF CHARGE, FOR EXAMPLE, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, NOT FOR RESALE (NFR) COPIES OF SOFTWARE, OR TO ANY SOFTWARE THAT HAS BEEN ALTERED BY USER, TO THE EXTENT SUCH ALTERATIONS CAUSED A DEFECT.
YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (DISCLAIMER OF WARRANTIES) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MAKERBOT.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL MAKERBOT BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF MAKERBOT UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED TEN U.S. DOLLARS (US$ 10). THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (i) EVEN IF MAKERBOT HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY). YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MAKERBOT.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to You, such exclusions and limitations shall not apply.
In the event of any third party demand, claim, suit, action and/or proceeding against MakerBot, a MakerBot affiliate, and/or any of the foregoing entities’ respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee”), and it is based upon or arises from Your: (a) use of the Licensed Software (or part thereof); (b) breach of any provision of this Agreement; and/or (c) violation of any Law applicable to You, (each of the foregoing, a “Claim”) then, upon written request by MakerBot (to be decided in its sole discretion), You agree to assume full control of the defense and settlement of the Claim; provided, however, that (i) MakerBot reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (ii) You shall not settle any Claim, or admit to any liability thereunder, without the prior express written consent of MakerBot.
In addition, and regardless of whether (or the extent to which) You participated in the defense and/or settlement of a Claim, You agree to indemnify and hold harmless the Indemnitee for and against: (i) any costs and expenses (including without limitation reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and (ii) any amounts awarded against, or imposed upon, the Indemnitee under such Claim, or otherwise paid in settlement of the Claim (including without limitation damages, losses, liabilities, and fines).
This Agreement commences on the Effective Date and will remain in full force and effect unless and until this Agreement is terminated in accordance with this Section (the “Term”).
This Agreement and the License are effective until terminated. MakerBot reserves the right to: (a) immediately terminate this Agreement, or otherwise modify, suspend or discontinue Your access to and use of the Licensed Software (or any part thereof), without any notice to you, in the event You commit any breach under this Agreement; and/or (b) terminate this Agreement for convenience at any time upon e-mail notice to you, which will be deemed given upon transmission.
Your sole remedy in the event You object to any provision of this Agreement or become dissatisfied with the Licensed Software, is to terminate this Agreement.
Promptly upon any termination of this Agreement, You must remove the Licensed Software from your Device in accordance with the following section on Consequences of Termination.
12. CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate; (b) You shall immediately cease all access to and use of the Licensed Software and Documentation; and (c) You shall (unless directed otherwise by MakerBot in writing) promptly uninstall and permanently delete any and all copies of the Licensed Software installed on Your Device, and, as directed in writing by MakerBot, return, permanently delete, or destroy any other information or materials that are proprietary to MakerBot. Thereafter, You may be requested to certify to MakerBot in writing that You have complied with Your obligations in this Section.
Termination of this Agreement shall not affect any right or liability accrued by either You or MakerBot as of the date of termination. Any provision in this Agreement that is stated to survive termination, shall survive, as will Sections 15 (Consequences of Termination; Survival) through 21 (General) inclusive.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and You hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Furthermore, You: (a) agree that any proceedings to resolve or litigate any claim, dispute or controversy will be conducted solely on an individual basis (and not in any class action or class-wide proceeding), and that You may initiate such proceedings only on its own behalf; (b) hereby irrevocably and unconditionally waives the right to litigate such claims, disputes, or controversies in court before a jury; and (c) agree not to participate in claims, disputes, or controversies brought in an attorney general or representative capacity, or in consolidated claims, disputes, or controversies involving another End User. Notwithstanding anything in this Agreement to the contrary, MakerBot may seek injunctive relief, specific performance, and/or other equitable relief in any court worldwide that has competent jurisdiction.
(a) Entire Agreement. This Agreement represents the entire agreement between You and MakerBot with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements with respect to such subject matter.
(b) Assignment. MakerBot may assign this Agreement (or any of its rights and obligations hereunder) without Your consent and without notice.
(c) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (i) the remaining provisions of this Agreement shall remain in full force and effect; and (ii) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
(d) Remedies. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by You or MakerBot under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
(e) Waiver. No failure or delay on the part of You or MakerBot hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
(f) Notices. You agree that MakerBot may send You notice by email, via your Company Account, by regular mail, and/or via postings on or through the Licensed Software. Except as stated otherwise in this Agreement or required by law applicable to You, You agree to send all notices to MakerBot, to email@example.com.
(g) No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (for example, MakerBot affiliates and Indemnitees), there shall be no third-party beneficiaries to this Agreement. You further acknowledge and agree that some of MakerBot’s suppliers and/or licensors may, in their agreements with MakerBot, be entitled to enforce certain rights and usage restrictions against users of the Licensed Software, and, to that extent, such suppliers and licensors shall have the right to enforce such rights and restrictions directly against You.
(h) U.S. Government Restricted Rights. All Licensed Software and Documentation provided to the U.S. Government are provided with the same commercial license rights and restrictions described elsewhere herein.
(i) Export Compliance. You agree to use the Licensed Software and Documentation in compliance with all laws applicable to You. Without limiting the generality of the foregoing sentence, You must not use or otherwise export or re-export any Licensed Software or Documentation in violation of any Export Control Laws. “Export Control Laws” means all export and re-export control laws applicable to You, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.