END USER LICENSE AGREEMENT (“EULA”) FOR
MERIDIAN SOFTWARE
CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OF
THE SOFTWARE PROVIDED WITH THIS AGREEMENT CONSTITUTES LICENSEE’S
ACCEPTANCE OF THESE TERMS. REFER TO YOUR SALES AGREEMENT FOR THE SPECIFIC
APPLICATION LICENSE TYPE PURCHASED WHICH WILL DICTATE LICENSEE’S TERMS OF USE
IN SECTION 2 OF THIS AGREEMENT. IF LICENSEE
DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE INSTALLATION
IMMEDIATELY. PROMPTLY RETURN THE
SOFTWARE AND THE ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS AND
CONTAINERS) TO THE LOCATION WHERE LICENSEE OBTAINED THEM.
1.
Software. The term “Software” includes all Meridian Project Systems, Inc. doing
business as Meridian Systems (“Meridian®”) and third party (“Supplier”)
software provided with this license, and includes any accompanying documentation
(the “Documentation”). The term “Software” also includes any updates of the
Software provided to Licensee by Meridian at its option. Subject to the terms
of this Agreement, Meridian grants to Licensee, and Licensee accepts, a
personal, non-exclusive, and nontransferable (except as set forth below)
license to use the object code version of the Software in accordance with the
Documentation.
2.
License Types/Grants/Use.
A.
Definitions:
(i). Authorized
User shall mean a collective reference
to Self-Hosted Users and Meridian Managed and SaaS Hosted Users.
(ii). Hosted User
Information shall refer to personally
identifying information, such as the user’s name, provided by Hosted Users to
Meridian hosted applications. Hosted
User Information shall not mean or be interpreted to be Project Content; and
(iii). Meridian
Content shall mean proprietary
information, materials, databases and other content owned by or licensed to
Meridian, whether or not proprietary, which are made available to each
self-hosted user through Meridian self-hosted Software or to each hosted user
through Meridian SaaS.
(iv). Meridian
Hosted Software applications shall
mean Meridian’s software applications known as Proliance® or Prolog® made
available over the Internet by Meridian through ProjectTalk, Prolog – Managed
Host, Prolog Sky, Proliance ASP, or Proliance – Managed Host, in object code
form only.
(v). Meridian
Self-Hosted Software applications
shall mean Meridian’s software application known as Prolog® or Proliance® in
object code form only, that has been purchased by Licensee.
(vi). Project
Content shall mean any content
originally provided by Licensee, or an authorized user, to Meridian Hosted
Applications, or Meridian Self-Hosted software in the course of its normal use
and operation. Project Content does not
include Hosted User Information.
(vii). Self-Hosted
User shall mean Licensee or Licensee’s
employee, consultant, or independent contractor who has received a valid Site
Key from Meridian provided that for each individual using the Meridian
Self-Hosted Software a separate and valid license for each such individual has
been purchased.
(viii).
SketchUp® Software shall mean software licensed by Trimble Navigation Limited under the
name SketchUp.
B.
Named Users
License(s):
(i). Licensee may use the Software provided that a separate
and valid license has been purchased specifically for each user under this
Agreement. Each user constitutes a Named
User. A Named User can be changed by
Licensee provided that the original Named User ceases using or having access to
the Software and the substitute Named User accepts all the terms and conditions
of this Agreement. No more than one (1)
person shall be a Named User or permitted to use the Software under the same
license at the same time. Named User
License(s) prohibit the use of concurrent, shared or multiple uses of an
individual Software license.
(ii). License
Granted - Named User License (s) – Self- Hosted. Subject to the
terms and conditions of this Agreement, Meridian grants to Licensee a
worldwide, non‑exclusive, non-transferable and non-assignable license for
Self-Hosted users solely to (i) access and execute Meridian self-hosted
Software only using a Site Key, and only for Licensee’s internal business
operations at the Site; and (ii) input, upload, download and modify the
Meridian Content available through Meridian Self-Hosted Software in connection
with the normal course of the operation of Meridian Self-Hosted Software. This license does not include the right to
grant sublicenses or to make derivative works of Meridian Self-Hosted Software.
(iii). License
Granted - Named User License (s) – Hosted (Software as a Service “SaaS” and
Managed Host). Subject to the terms and conditions of this
Agreement, Meridian grants to Licensee a worldwide, non-exclusive,
non-transferable and non-assignable right to permit Managed Host and SaaS Users
solely to (i) access and use Meridian Software from the Host Site, only
using a password and only for Licensee’s internal business purposes;
(ii) access Meridian Hosted applications
and the Meridian Content as both are located on Meridian’s server; (iii) establish,
maintain, administer and modify the Project Content.
(iv). For Managed Host and SaaS applications, Licensee hereby
grants Meridian, a non-exclusive, non-transferable, royalty free license to
reproduce, display and use the Project Content for Meridian to fulfill its
duties hereunder. Except as provided in
this Section, Licensee shall at all times retain whatever ownership rights
Licensee has in the Project Content, including, without limitation,
Intellectual Property Rights.
C.
Concurrent
User License(s):
(i). The application as a shared
resource that is based on the number of simultaneous users authorized to access
the program at any one point in time
which is managed by the software’s application license manager. For example, in
a five-user concurrent use license, after five users are logged on to the
program, the sixth user is prohibited. When any one of the first five logs out,
the next person can log in.
(ii). License
Granted – Self Hosted. Subject to the terms and conditions of this
Agreement, Meridian grants to Licensee a worldwide, non‑exclusive,
non-transferable and non-assignable license for Self-Hosted users solely to
(i) access and execute Meridian Self-Hosted Software only using a Site
Key, and only for Licensee’s internal business operations at the Site; and
(ii) input, upload, download and modify the Meridian Content available
through Meridian Self-Hosted Software in connection with the normal course of
the operation of Meridian Self-Hosted Software.
This license does not include the right to grant sublicenses or to make
derivative works of Meridian Self-Hosted Software.
(iii). License(s)
Granted – Hosted (Software as a Service “SaaS” and Managed Host) Subject
to the terms and conditions of this Agreement, Meridian grants to Licensee a
worldwide, non-exclusive, non-transferable and non-assignable right to permit
SaaS and Hosted Users to (i) access and use Meridian Software from the
Host Site, only using a password and only for Licensee’s internal business
purposes; (ii) access Meridian Hosted applications and the Meridian Content as both are located
on Meridian’s server; (iii) establish, maintain, administer and modify the
Project Content. For Managed Host and
SaaS applications, Licensee hereby grants Meridian, a non-exclusive,
non-transferable, royalty free license to reproduce, display and use the
Project Content for Meridian to fulfill its duties hereunder. Except as provided in this Section, Licensee
shall at all times retain whatever ownership rights Licensee has in the Project
Content, including, without limitation, Intellectual Property Rights.
D. Licence(s) Granted - Trimble SketchUp APIs.
SketchUp APIs are provided by Trimble Navigation Limited (“Trimble”) according to the terms and conditions for
service which can be located online at http://sketchup.com/developers/tos. These terms and conditions outline Licensee’s rights and responsibilities when using SketchUp
APIs. Additional terms may apply
to the use of an API, including
additional terms of service, terms within the accompanying
API documentation, and any applicable policies or guidelines. If there is a conflict between these terms and the additional terms,
the additional terms apply for that conflict.
If Licensee uses the APIs as an interface
to, or in conjunction with other Trimble products and services, then the terms for such products and services also apply.
3.
Limitations on Use.
(a)
Licensees may not
copy, rent, lease, sell, sublicense, assign, loan, time-share or otherwise transfer
or distribute copies of the Software or the Documentation, except as expressly
set forth in Section 2 ("License Types/Grants/Use"). Licensee may
physically transfer the Software from one computer to another provided that Licensee
does not retain any copies of the Software in excess of the licenses purchased,
including any copies stored on a computer. Licensee may permanently transfer
this license to another user, but only if Licensee transfers or destroys all
copies of the Software, and the recipient agrees in writing to be bound by all
of the terms of this Agreement.
(b)
Licensee agrees
that it will not decompile, disassemble, or otherwise reverse engineer the
Software, and Licensee will use its best efforts to prevent Licensee’s employees
and contractors from doing so, except to the extent that such restriction is
expressly prohibited by applicable law. Licensee may not modify, adapt, create
a derivative work, merge, or translate the Software without the prior written
consent of Meridian.
(c) Specific third-party Suppliers may be identified in the
Documentation which is sold or licensed by Meridian. Licensee may be required
to agree to additional terms and conditions specific to particular third-party
Suppliers, as described in the Documentation, and are incorporated herein by
reference. Meridian requires Licensee to
1) refrain from improper or unauthorized copying of the third-party Supplier
product(s), or portions thereof, except for reasonable backup purposes; and 2)
refrain from any reverse engineering, decompilation and/or disassembly of the
third-party Supplier product(s), or portions thereof, save to the extent
permitted under any relevant laws. Use
of Microsoft® Bing™ Maps Platform APIs’ (formerly Virtual Earth™ Maps Platform
and Map Control) is limited to the terms and conditions as described under the
Terms of Use for Microsoft® Bing™ Maps Platform APIs: http://www.microsoft.com/maps/product/terms.html.
(d)
If the Software purchased includes Supplier software which integrates a
full or partial copy of third party software into the Software, the Supplier
software may only be used with the Meridian product with which it was provided
and accessing data that is not created or used by the Meridian product is not
permitted.
(e) Licensee may make two (2) copies of the Software for
backup or archival purposes only, so long as Meridian’s and its Suppliers’
copyright notices are reproduced on such copies.
(f) GOOGLE Content: The Trimble SketchUp software allows Licensee to access and view certain
content, including photographic imagery sub-licensed
to Trimble by Google Inc. ("Google") and Google's licensors (the "Google Content"). By using the Software, Licensee does not receive any ownership rights, and Google and/or its licensors retain all ownership
rights in the Google Content. Licensee
may not use, access or allow others to use or access the Google Content in any manner not permitted
under the Terms and
Conditions, unless Licensee
has been specifically permitted to do so by Trimble, Google or by the owner of that Content, in a separate agreement. The Photo
Textures feature provides
access to certain
Google-owned Street View imagery, which has been licensed by Google to Trimble, to enable creation
of photo- textured models (the "Street View Content"). Trimble grants Licensee
a personal, worldwide, royalty-free, non-assignable and non- exclusive sub-license to use,
reproduce, modify, and publicly perform and publicly
display, and create derivative works of the Street View Content as embodied in a model created with the Photo Textures feature (a "Photo Textures Model"). Licensee may not disassociate or separate the Street View Content from the Photo Textures Model. Without Trimble or
Google's prior written authorization, Licensee
may not use or distribute
a Photo Textures Model in a mapping or geographic
application or service (other than a
Google owned and operated service,
such as Google Earth).
4.
Intellectual Property Rights. Licensee acknowledges that Meridian or its Suppliers
retain exclusive ownership of all copyrights, trademarks, patents and/or other
intellectual property rights in and to the Software. Licensee is not granted
any rights in the Software other than the license rights expressly set forth in
Section 2 ("License Types/Grants/Use").
5.
Term and Termination. The term of perpetual software licenses is for the duration of any
copyright in the Software. The term of
flex software licenses is for the duration as stated in the Sales
Agreement. This license automatically
terminates if Licensee fails to comply with any of the terms and conditions of
this Agreement. Licensee agrees that, upon such termination, Licensee will
either destroy (or permanently erase) all copies of the Software, or return the
original Software to Meridian. Licensee may terminate this license at any time
by destroying the Software and any permitted copies. Sections 3, 4, 5, 6, 7, 8, 9, 12, 13and 14
shall survive any termination of the license or this Agreement.
6.
Limited Warranty and Limited Remedy – Self-Hosted
Software. Meridian warrants to the original end user
purchaser only that the Software as delivered at the time of purchase will
substantially conform to the Documentation, and that the original media and
Documentation are free from defects in material and workmanship under normal
use for a period of time from the Licensee’s original purchase date thereof (the “Limited Warranty Period”),
provided the Software is used in accordance with the Documentation and with
compatible computer hardware and operating systems. The Limited Warranty Period for Prolog®
Software is ninety (90) calendar days and for Proliance® Software the Limited
Warranty Period is one hundred and eighty (180) calendar days. The SketchUp software is provided on an “as
is” basis and without warranty of any kind. This limited warranty is void if failure of
the Software has resulted from accident, abuse, or misapplication. Meridian’s
entire liability and Licensee’s sole and exclusive remedy shall be, at Meridian’s
option, either to (a) correct or help Licensee work around or avoid a
reproducible Error or (b) replace defective media or Documentation. An
“Error” is a defect in the Software that causes it not to perform substantially
in accordance with the limited warranty set forth above. Any replacement
Software will be warranted for the remainder of the original warranty period
only.
7.
Third Party Products and Services. Licensee acknowledges that its rights under this
Agreement, in the nature of warranty or otherwise, are solely against Meridian.
NO
SUPPLIER MAKES ANY WARRANTY, ASSUMES ANY LIABILITY, OR UNDERTAKES TO FURNISH TO
LICENSEE ANY SUPPORT OR INFORMATION CONCERNING THE SOFTWARE OR ANY PORTION OF
THE SOFTWARE. Licensee hereby releases all Suppliers from any claims,
damages or losses arising from the use of the Software, regardless of the form
of action. Some of the Trimble
SketchUp software is designed to be used in conjunction with Google's search and other services. Accordingly, Licensee’s use of such Trimble
SketchUp software is also defined by Google's Terms of Service
located at http://google.com/intl/en/policies/terms and Google's
Privacy Policy located at
http://www.google.com/intl/en/policies/privacy.
8.
Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE
SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. ALL OTHER
WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OR THAT THE SOFTWARE’S FUNCTIONS WILL MEET LICENSEE’S
REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT
AS SET FORTH IN THIS AGREEMENT, THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE. If a disclaimer of implied warranties is not
permitted by law, the duration of any such implied warranty is limited to the
time period for the specific Software product purchased, as stated in Section 6
above “Limited Warranty and Limited Remedy” from the date of purchase by the
original Licensee purchaser. Some jurisdictions do not allow the exclusion of
implied warranties or limitations on how long an implied warranty may last, so
such limitations or exclusions may not apply to Licensee. This limited warranty
gives Licensee specific legal rights, and Licensee may also have other rights
which vary from jurisdiction to jurisdiction.
Disclaimer of Warranties – SketchUp Software:
(i).
LICENSEE’S USE OF THE
TRIMBLE SKETCHUP SOFTWARE IS AT LICENSEE’S SOLE RISK. THE SOFTWARE IS PROVIDED
ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND.
(ii).
TRIMBLE MAKES NO
WARRANTY (1) THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, (2) THAT THE
SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (3) REGARDING THE SECURITY,
RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, (4) THAT ANY ERRORS IN
THE SOFTWARE WILL BE CORRECTED AND (5) REGARDING THE RESULTS OR OUTPUT OF THE
SOFTWARE.
(iii).
ANY CONTENT OR MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT
LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR
ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
(iv).
NONE OF THE SOFTWARE IS
INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS,
EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR
TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE
OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE.
(v).
NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM MERIDIAN OR
TRIMBLE OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
9.
Liability Exclusions and Limitations. IN NO EVENT SHALL MERIDIAN OR ANY SUPPLIER
BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL
DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF USE OR INTERRUPTION OF
BUSINESS), OR FOR LEGAL FEES, ARISING OUT OF THE USE OF THE SOFTWARE,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF MERIDIAN HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MERIDIAN’S AGGREGATE
LIABILITY HEREUNDER EXCEED THE LICENSE FEE PAID BY LICENSEE. This
limitation shall apply notwithstanding any failure or inability to provide the
limited remedies set forth above. Some jurisdictions do not allow the exclusion
or limitation of incidental or consequential damages, so the above
limitation(s) or exclusion(s) may not apply to Licensee.
10. Proprietary
Rights-Contracts with Certain U.S. Government Agencies. If the Software
is acquired under the terms of a Department of Defense or civilian agency
contract, the Software is “commercial item” as that term is defined at 48
C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and
“commercial computer software documentation” as such terms are used in 48
C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and
its successors. All U.S. Government end users acquire the Software with only
those rights set forth in this Agreement.
12. Severability. Licensee acknowledges and agrees that each provision
of this Agreement that provides for a disclaimer of warranties or an exclusion
or limitation of damages represents an express allocation of risk, and is part
of the consideration of this Agreement. Invalidity of any provision of this
Agreement shall not affect the validity of the remaining provisions of this
Agreement.
13.
Audit Rights.
Meridian, or a Meridian designated
agent, (the “Auditor”) may upon five (5) business days written notice to Licensee,
inspect any of Licensee’s facilities where the Software is used and audit
records for the purpose of confirming Licensee’s compliance with the exercise
of the licenses granted in Section 2 “License Types/Grants/Use”. All such audits will be conducted during
reasonable business hours and in a manner that does not unreasonably interfere
with Licensee’s business activities. The
audit shall be performed at Meridian’s sole expense; provided however, that if,
as a result of the Meridian audit, it is determined that Licensee is out of
compliance by five percent (5%) of Licenses Granted and that Licensee owes
Meridian additional fees, then Licensee shall bear the reasonable cost of
Meridian’s audit and pay all past-due fees, in addition to such other remedies
as Meridian may have under the terms and conditions between Licensee and
Meridian.
14.
Data
Collection. Meridian may
provide directly, or through qualified third
parties, corrective and preventative technical support services under the terms
of this Agreement. Licensee expressly consents to the provision and
collection of certain Licensee information and data in connection with the
services. The personal information Meridian collects will be used by
Meridian, and its third party suppliers, to 1) provide the technical support
service(s) or the transaction(s) Licensee has requested or authorized; 2) be
used to request additional information on feedback that Licensee provides about
the product or service that Licensee is using; 3) to provide critical updates
and notifications regarding the pre-release software; or 4) to improve the
product or service, i.e. fixing reported product issues. Licensee expressly consents to Meridian
permitting certain third parties and consultants that it retains to perform
services on its behalf to access Licensee’s information and data solely to
perform the services for Licensee. The Licensee is responsible for
providing any required notices and/or obtaining any required consents relating
to collection and use of such data (including any such consent necessary for
Meridian to provide these services). The Licensee is responsible for taking the
steps necessary to ensure that the Licensee’s use of the services complies with
applicable laws, regulations, and codes of practice. Licensee
acknowledges that to the extent permitted by law, Meridian assumes no
responsibility for storage of Licensee data or information.
Protecting users' privacy is very important to
Meridian and Trimble Navigation Limited. As a condition
of downloading and using the
SketchUp software, Licensee agrees to the terms of the Trimble Privacy
Policy at http://www.trimble.com/privacy.aspx, which may be updated from time to time and without notice. Information collected
by Trimble in connection with Licensee’s use of SketchUp
may be stored and processed
in the United States or any other country in which Trimble or its agents maintain
facilities. Accordingly, by using SketchUp, Licensee
consents to any transfer of such information outside of Licensee’s country. Licensee acknowledges and agrees that Trimble may access, preserve, and disclose Licensee’s account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request,
(b) enforce these Terms and Conditions, including
investigation of potential violations hereof,
(c) detect, prevent,
or otherwise address fraud, security
or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests,
or (e) protect the rights, property or safety of Trimble, its users, and the public. Trimble will not be responsible or liable for the exercise or non-exercise of rights under these Terms and Conditions.
15. General. This Agreement supersedes all prior written statements,
proposals or agreements relative to its subject matter. It may be modified only
by a writing executed by an authorized representative of Meridian. No Meridian
dealer or sales representative is authorized to make any modifications, extensions
or additions to this Agreement. This Agreement is governed by the laws of the
State of California without application of its conflicts of law principles. The
Superior Court of Sacramento County, California and/or the United States
District Court for the Eastern District of California shall have jurisdiction
and venue over all controversies in connection herewith. The United Nations Convention on Contracts
for the International Sale of Goods is specifically excluded from application
to this Agreement.
For any questions, contact:
Meridian Project Systems, Inc.
1720 Prairie City Road, Suite 120
Folsom, California 95630
Toll-Free: (800) 850-2660
FAX: (916)
294-2001