SOFTWARE LICENSE AGREEMENT - eCADSTAR Design Viewer

PLEASE READ CAREFULLY the contents of this Agreement BEFORE DOWNLOADING or INSTALLING and PROCEEDING to use Software (hereinafter defined below) provided on the website Zuken Global Support that Zuken Inc. (hereinafter « Zuken ») operates and the ecadstar.com website that Zuken Limited operates (each website, hereinafter collectively, « Zuken Official Website »)

This Agreement is a legal document governing the use of Software by you, either an individual or a business entity (hereinafter called ‘YOU’) and will be entered into between YOU and Zuken. For the avoidance of doubt, if YOU are entering into this Agreement on behalf of a company, YOU or YOUR refer to that company.

By downloading, installing and/or using Software, YOU will be deemed to have accepted the full terms of this Agreement. If YOU do not accept any term of this Agreement, YOU must NOT download, install and/or use the Software.

• NOTE 1: To the extent the terms and conditions of the English version of this Agreement conflict with the terms and conditions of other language versions of this Agreement, the English version shall prevail.
• NOTE 2: YOU may not access or use the Software if YOU are a direct competitor of Zuken or a Zuken affiliated company, except with a prior written consent from Zuken or a Zuken affiliated company.
• NOTE 3: If YOU access to and use the Zuken Official Website in relation to the use of the Software, YOU agree to be bound by the terms and conditions of use of the Zuken Official Website.

Article 1 (Definition)

Software means machine-readable software program, data, font, file, library (collectively « Programs »), in whole or part, including its renewal version and any associated documentation such as manuals, (including electronic documentation), associated reference and printed materials.

Article 2 (Grant of right)

Subject to the terms of this Agreement, Zuken grants YOU a non-exclusive and non-transferable limited right to use the Software for YOUR own use and internal purposes only for the purpose of viewing the data created by using Zuken CAD/CAM software.

Article 3 (Restrictions)

1. YOU may NOT do any of the following:
(i) sub-license, sell, resell, rent, lease, furnish as collateral or otherwise dispose or share use of the Software;
(ii) modify or create any derivative works of, reverse engineer, decompile or disassemble the Software or otherwise attempt to derive or get access to the source code of the Software or any part thereof, except that such activity is expressly mandated by applicable law notwithstanding this limitation;
(iii) copy, or allow to be copied, the Software, in whole or in part, except as provided in this Agreement;
(iv) use beyond the scope of internal purposes, disclose, transfer or assign to a third party including YOUR affiliates and subcontractors (« Third Party »), or grant a Third Party a right to use a software program which you have developed, that either was developed using this Software, or that uses any parts of this Software without Zuken’s prior written consent;
(v) transfer or assign any of YOUR rights to a Third Party without Zuken’s prior written consent. Any transfer or assignment or purported transfer or assignment of any of your rights to any Third Party will automatically terminate this Agreement;
(vi) use the Software for purposes of benchmarking or distributing the functionality or performance results externally or to third parties or for any competitive purposes; or
(vii) use the Software for the purpose of providing design services, demonstration, training, and application engineering support without Zuken’s prior written consent
All restrictions and obligations imposed upon YOU in relation to the Software shall apply to any backup or archival copies.
2. If YOU do any of the acts prohibited above, either directly or through a Third Party, which results in damage being suffered by Zuken, YOU agree YOU will pay compensation to Zuken by itself or jointly and severally with the Third Party, and indemnify Zuken against all losses suffered and costs incurred by Zuken.

Article 4 (Intellectual property rights)

Intellectual property rights including, without limitation, copyright, patent, trademark, know-how, trade secret relating to the Software shall belong to Zuken or its licensors. YOU will not own or retain any rights other than the right to use the Software in accordance with this Agreement.

Article 5 (No liability)

YOU acknowledge that YOU will use the Software on YOUR own responsibility. Zuken will not be liable to YOU or any third party for any damages arising from the use of the Software or in connection with this Agreement.

Article 6 (Disclaimer)

Zuken disclaims any warranty, express or implied, that the Software is free of defects, and all express or implied warranties of merchantability, fitness for a particular purpose, and non-infringement upon any third party’s intellectual property right in connection with the Software. YOU agree and acknowledge that Zuken has no obligation to correct any defect or otherwise maintain the Software for any reason whatsoever.

Article 7 (Confidentiality)

All documentation, software features and capabilities, object code (including, without limitation, the Software and any content therein), which Zuken or its affiliates may have imparted and may from time to time impart to YOU relating to the Software (the « Confidential Information ») are proprietary and confidential. YOU agree that YOU shall use the Confidential Information solely for permitted purposes in accordance with the terms of this Agreement and that YOU shall not at any time during or after expiry or termination of this Agreement disclose the Confidential Information, whether directly or indirectly, to any Third Party without Zuken’s prior written consent. The confidentially obligations, however, shall not apply to any information which:
(1) was already lawfully in the public domain when disclosed; or subsequently lawfully enters into the public domain other than through disclosure by YOU; or is disclosed by YOU with the prior written approval of Zuken;
(2) was already lawfully in the possession or known by YOU free of any obligations at the time disclosed to YOU, as evidenced by YOUR prior or contemporaneous written or electronic records;
(3) is rightfully received by YOU from a third party without a duty of confidentiality;
(4) is developed independently by YOU without use of Confidential Information, as evidenced by YOUR prior or contemporaneous written or electronic records.
If YOU become compelled by laws, regulations, judicial or governmental order to disclose any confidential information under this Agreement, YOU shall promptly notify Zuken. YOU will cooperate reasonably with Zuken in any proceeding so that an adequate opportunity to protect the confidential information from disclosure, a protective order or other remedy can be given. If any protective order or other remedy cannot be given, YOU shall only disclose that portion of such confidential information required to be disclosed, in the opinion of YOUR legal counsel and make sure that confidential treatment be granted where available. Compulsory disclosures made pursuant to this clause shall not relieve YOU of its obligation of confidentiality and non-use with respect to non-compulsory disclosures.
YOU acknowledge and agree that any breach of this provision by YOU may cause irreparable damage to Zuken for which monetary damages would not be adequate compensation, and that, in the event of such breach or threatened breach, in addition to all other remedies available at law or in equity in any jurisdiction, Zuken shall have the right to seek provisional disposition, preliminary and permanent injunctive relief from an appropriate court, without the requirement of posting a bond.

Article 8 (Termination)

Zuken may terminate this Agreement, and/or claim against YOU for compensation if any of the following acts or omissions occur:
(1) YOU breach any term of this Agreement;
(2) YOU do any act infringing Zuken’s rights under Article 4 of this Agreement;
(3) YOU receive a suspension of transaction from a financial institution, or there is any other suspended payment which is an actual or potential cause of bankruptcy;
(4) Any application for liquidation, corporate reorganization, bankruptcy, or corporate rehabilitation is made against YOU;
(5) YOU receive from a third party a seizure, compulsory execution, or preventive maintenance order et al;
(6) YOU pass a resolution in favor of dissolution, merger, spin-off or divestiture, assignment of business, or any other corporate reorganization;
(7) A majority of voting rights or share in the securities of the whole shareholders of YOU makes a change;
(8) YOU receive from the applicable authorities cancellation or suspension of business permit et al, so that Zuken considers that YOUR performance of this Agreement is difficult;
(9) Zuken considers that there is a reasonable ground for terminating this Agreement.
Notwithstanding the foregoing, any rights and obligations of the parties under this Agreement, which should survive termination in nature, shall survive termination or expiration of this Agreement. Such rights and obligations include License Restrictions, Intellectual Property Rights, Confidential Information, Disclaimer, Exclusion of Liability, Export Restrictions and Miscellaneous provisions.

Article 9 (Export restrictions)

YOU acknowledge and agree that YOU will not re-export the Software to any country, person, entity or end use in contravention of Japanese and UK Export control laws and regulations, US Export Administration Regulations and any other applicable export laws and regulations of any jurisdiction (« Export Laws »). YOU further agree that YOU will never use the Software for development and production of nuclear, biological or chemical weapon or missile, or any other weapons of mass destruction and that YOU will not use the Software for the development and production of conventional weapons, either, unless prior written permit is granted before Zuken’s export. YOU shall defend, indemnify and hold harmless Zuken and its affiliates from and against any damages, fines, penalties assessments, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) asserted by any person or entity against Zuken or its affiliates, directly or indirectly arising out of a breach of this provision by YOU.

Article 10 (U.S. GOVERNMENT RESTRICTED RIGHTS)

The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if YOU are an agency or other part of the U.S. Government, the Software and accompanying documentation constitute “commercial computer software” and “commercial computer software documentation” under (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, as amended, with respect to the Department of Defense and its contractors, or (b) 48 C.F.R. §12.212, as amended, with respect to all other U.S. Government licensees and their contractors. Any use, modification, reproduction, or disclosure by the U.S. Government will be governed solely by the terms of this Agreement and are prohibited except to the extent expressly permitted herein.

Article 11 (Audit)

With reasonable prior written notice, Zuken reserves the right to have audits conducted during YOUR normal business hours in order to verify YOUR compliance with this Agreement.

Article 12 (Third Party Software)

The Software may contain, embed or use certain third party software which is provided in conjunction with the Software (not on a standalone basis). Such third party software shall be subject to the terms and conditions as referred to in the help information of the Software or otherwise the terms and conditions of the click-wrap end user license agreement of such third party software (collectively, the Third Party Software Terms). The Third Party Software Terms are incorporated herein by this reference. However, if there is no Third Party Software Terms, the third party software is provided on an AS IS basis and shall be further subject to the following disclaimer and exclusion of liability provisions.
ZUKEN, ITS LICENSOR (AS APPLICABLE) OR ANYONE DISTRIBUTING SUCH THIRD PARTY SOFTWARE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL ZUKEN, ITS LICENSOR (AS APPLICABLE) OR ANYONE DISTRIBUTING SUCH THIRD PARTY SOFTWARE BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE THIRD PARTY SOFTWARE OR THE USE OF OR OTHER DEALINGS IN THE THIRD PARTY SOFTWARE.

Article 13 (Governing law)

13.1 This Agreement is governed by and construed in accordance with the laws of Japan, without giving effect to any conflict of laws or provisions whether contained in Japanese law or the laws of YOUR current state or country of residence.
13.2 All disputes arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in Yokohama, Japan, provided, however, that Zuken may alternatively and in its sole discretion bring an action against YOU in the courts of any other jurisdiction in which proper jurisdiction over YOU may otherwise be obtained. In any such case, YOU irrevocably consent to the personal and exclusive jurisdiction and venue of the subject courts and waive any other venue to which YOU may otherwise be entitled, and further irrevocably consent to service of process in any such action by mail or in any other manner permitted by the law of the jurisdiction in which the action is brought. The prevailing party in any action or proceeding which arises out of relates to this Agreement shall be entitled to recover its reasonable lawyers’ fees and costs incurred in connection with such action or proceeding and in connection with enforcing any judgment, award or order thereby obtained. YOU also acknowledge and agree that any breach of this Agreement by YOU may cause irreparable damage to Zuken and that, in the event of such breach, in addition to any and all remedies at law, Zuken shall have the right to seek a preliminary injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief.
13.3 Notwithstanding the foregoing, if YOU are located in the People’s Republic of China, Taiwan, Thailand, Indonesia or Vietnam, any dispute, controversy or claim arising out of or relating to this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the Japan Commercial Arbitration Association (« JCAA ») for binding arbitration and shall be finally resolved by arbitration in Singapore conducted in accordance with the Arbitration Rules of JCAA in effect at the time of the application for arbitration. The arbitration proceedings shall be held in Yokohama and conducted in English. The arbitral award shall be final and binding upon both parties with no right of appeal. Nonetheless, nothing contained herein shall prohibit either party from seeking interim protective measures before or during the arbitration proceeding in order to protect its interests or applying to a court of competent jurisdiction for the recognition and enforcement of an arbitral award.

Article 14 (Miscellaneous)

14.1 This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreement. In the event that any term of this Agreement is found to be invalid, unenforceable or illegal, the remainder of this Agreement will remain in full force and effect. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
14.2 Neither this Agreement nor any rights or obligations hereunder may be assigned, transferred or delegated, in whole or in part by YOU without Zuken’s prior written consent. For the avoidance of doubt, a change of ownership or control of YOU through merger, acquisition, split, divestiture or any corporate reorganization including but not limited to any material modification of YOUR controlling parties and/or its management structure shall be deemed to be an assignment under this Agreement.
14.3 No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
14.4 Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.

No. ZECAP2515V