PTC SOFTWARE LICENSING AND MAINTENANCE TERMS & CONDITIONS
The following PTC Customer Software Licensing and Maintenance Services Terms and Conditions ("Terms and Conditions") shall govern the license of PTC Licensed Products and/or Maintenance Services provided by PTC (as defined below) to the Customer as identified in a PTC Product Schedule submitted by Customer and accepted by PTC. These Terms and Conditions are incorporated by reference into the Product Schedule and collectively the Terms and Conditions, Product Schedule and Product Detail Attachments are referred to as the "Terms and Conditions".
(FOR PRE-REGISTERED CUSTOMERS)
1.1 "Concurrent User Licensed Products" means the Licensed Products listed on the applicable Product Schedule as being Licensed on a concurrent user basis.
1.2 "Designated Computer" means the central processing unit(s) designated by Customer to PTC in connection with the installation of the Licensed Products (as may be modified in accordance with Section 3.3 of these Terms and Conditions).
1.3 "Designated Country" means the country of the Installation Address listed on the applicable Product Schedule (subject to change pursuant to Section 3.2), and in which Customer may install, operate, and use a Licensed Product.
1.4 "Designated Network" means the network designated by Customer in connection with the installation of the Licensed Products (as may be modified in accordance with Section 3.3 of these Terms and Conditions).
1.5 "Documentation" means product specific user manuals in printed or electronic form provided with the Licensed Products or made available by electronic means at the time of shipment.
1.6 "Error" means any failure by the Licensed Products to conform substantially to the Documentation provided that Customer informs PTC of such failure in writing and PTC succeeds in replicating such failure after making reasonable efforts.
1.7 "License" means the non-exclusive, non-transferable, right to use a Licensed Product granted in Section 3 during the applicable License Term, without any right to sub-license, subject to the terms and conditions of the PTC Terms and Conditions.
1.8 "License Term" means the time period during which the License shall apply (subject to earlier termination pursuant to Section 9.1), as specified in the applicable Product Schedule.
1.9 "Licensed Products" means, collectively, the computer software products specified in a submitted Product Schedule for use on supported hardware platforms/operating systems in machine readable object code form only, including Documentation, and also any updates, Error corrections and/or New Releases provided to Customer by PTC pursuant to the Warranty specified herein or pursuant to Maintenance Services purchased by Customer.
1.10 "Maintenance Services" means the provision of New Releases, and may also include, depending on the level of Maintenance Services ordered, telephone support, bug fixes and workarounds for the correction of Errors, all as more fully described on Exhibit A.
1.11 "New Release" means a modified or enhanced version of a Licensed Product which is designated by PTC as a new version (as opposed to a bug fix, update or new build to the current release) of the Licensed Products and which is made generally available by PTC to its Maintenance Services customers.
1.12 "Permitted User(s)" means an individual who is authorized by Customer to use the Licensed Products. Permitted Users are limited to Customer's employees, consultants, subcontractors, suppliers, business partners and customers who (i) are not, and are not employed by, competitors of PTC, (ii) are directly involved in the utilization of the Licensed Products for the sole purpose of Customer's internal product development and information management operations at the and (iii) are bound to comply with these Terms and Conditions.
1.13 "Product Schedule" means PTC's standard form "PTC Product Schedule For Pre-Registered Customers" completed by Customer, which incorporates these Terms and Conditions, together with the Product Detail Attachments as applicable, and which specifies for each Licensed Product (i) the Installation Address (including the Designated Country) and (ii) the License Term.
1.14 "PTC" means the subsidiary of Parametric Technology Corporation applicable to the country of incorporation of Customer, as set out in Exhibit B to these PTC Terms and Conditions.
1.15 "Registered User(s)" means the Permitted Users for whom Customer has purchased a License of a Registered User Licensed Product and for whom Customer has issued an LDAP password or whose names or other information Customer has entered into Customer's installed copy of a Licensed Product (as required by such Licensed Product) in order to enable such person to use the Licensed Product.
1.16 "Registered User Licensed Products" means the Licensed Products listed on the applicable Product Schedule as being licensed on a Registered User basis.
1.17 "Subscription License Fee" or "Usage License Fee" mean a periodic fee payable with effect from shipment of those Licensed Products specified to be subject to a Subscription License Fee or Usage License Fee in the applicable Product Schedule and that, during the period for which the Subscription License Fee or Usage License Fee is paid only, entitles Customer to (i) use the Licensed Product pursuant to the applicable License and (ii) receive Maintenance Services at the Maintenance Services level specified in the applicable Product Schedule.
2.1 Customer may order Licensed Products and/or Maintenance Services by submitting to a PTC authorized reseller a completed Product Schedule, purchase order and such other order documentation required by the authorized reseller. Acceptance by the authorized reseller of Customer's order shall not constitute acceptance of such order by PTC. The authorized reseller may order such products and/or services from PTC or its designee, which PTC may accept or reject at its sole discretion. An order by the authorized reseller for Licensed Products and/or Maintenance Services on behalf of Customer shall only be deemed accepted by PTC upon the earlier of (a) shipment of the applicable Licensed Products and/or commencement of the Maintenance Services and (b) Upon PTC authorising customer to access the Licensed Products. Upon PTC's acceptance of an order, PTC grants the License as provided for in Section 3 below for the Licensed Products and/or will provide the Maintenance Services described on Exhibit A (at the service level and for the period of service ordered by the Customer). These Terms and Conditions (including any schedules, exhibits, or appendices hereto or thereto) constitutes the complete and exclusive statement of all the terms and conditions between PTC and Customer with respect to the Licensed Products and Maintenance Services.
3. License to Licensed Products.
3.1 License Grant. Subject to the express restrictions in Sections 3.2, 3.3, 3.4, 3.5, and 3.6 below and the other terms of these Terms and Conditions, upon PTC's acceptance of an order for Licensed Products from an authorized reseller, PTC grants to Customer a License to install and use the Licensed Products solely for Customer's internal product development and information management operations for the applicable License Term.
3.2 Certain Restrictions on Use Applicable to All Licensed Products. (a) Customer may only install and operate Licensed Products on computer systems and networks situated in the applicable Designated Country (Countries). Only Permitted Users may access or operate the Licensed Products. Customer may, from time to time, change the Designated Country in which Customer seeks to use a Licensed Product, provided that (i) in each case Customer shall give prior written notice to PTC of any such change, and (ii) upon transferring the Licensed Products to a different Designated Country, Customer pays all applicable PTC transfer fees, as well as any taxes, tariffs or duties that may be payable on such transfer. Customer acknowledges and agrees that PTC may impose, as a condition of such transfer, and Customer shall pay, additional fees for use of Licensed Products in a country other than the original Designated Country; and (b) Customer shall not (save as permitted by this clause), and shall not permit any third party to:
Upon Customer's request, PTC at its sole discretion will (i) provide to Customer (at a reasonable fee) interface information or (ii) consent to Customer's decompilation of the Licensed Products to the extent (in either case) required by applicable law for Customer to ensure that the Licensed Products are interoperable with other software programs.
3.3 Additional Restrictions on Use Applicable to Concurrent User Licensed Products. Customer may only install and operate Concurrent User Licensed Products on the applicable Designated Computers or Designated Networks on computer systems and networks situated in the applicable Designated Country or Countries. Only Permitted Users located in the Designated Country or Countries may access or operate the Licensed Products. Permitted Users who are neither employees nor consultants of Customer, shall use the Concurrent User Licensed Products on Customer's site only. The number of Permitted Users accessing or operating a Concurrent User Licensed Product at any point in time may not exceed the number of Licenses in effect at such time for that particular Licensed Product. Customer may, from time to time, change the Designated Computer or the Designated Network for a Licensed Product, and/or the location thereof, provided that (a) in each case Customer shall give prior written notice to PTC of any such change, and (b) upon transferring the Licensed Products to a different Designated Country, Customer pays all applicable transfer fees, taxes, tariffs or duties that may be payable on such transfer in accordance with section 3.2(a).
3.4 Additional Restrictions on Use Applicable Registered User Licensed Products. Registered User Licensed Products may only be used by Registered Users. Customer may add and/or substitute from time to time new Registered Users as long as the aggregate number of Registered Users does not exceed at any point in time the number of Licenses in effect at such time for that particular Licensed Product and, provided further, that if an original Registered User returns to Registered User status, a new license fee must be paid to PTC (at PTC's then current rates) before adding such Registered User.
3.5 Third Party Components and Products. Certain of the Licensed Products may contain third party software components for which additional terms apply. In addition, certain third party software products may be distributed by PTC with the Licensed Products and are licensed to Customer directly by the manufacturer of such third party software products. These additional component terms and the terms relating to third party software products licensed to Customer directly by the manufacturer are described on the Schedule of Third Party Terms. Customer agrees that its use of such third party software with the Licensed Products is subject to those Third Party Terms.
3.6 Expiration of License Term. Upon expiration of the License Term, Customer's License shall terminate without further notice and Customer shall have no further rights to use or retain copies of such Licensed Products (including the Documentation). Customer shall return to PTC any copies of the applicable Licensed Product provided by PTC and destroy and/or delete all other copies and backup copies thereof in accordance with section 9
- modify or create any derivative work of any part of the Licensed Products;
- rent, lease, or loan the Licensed Products;
- use the Licensed Products, or permit them to be used, for third-party training, commercial time-sharing or service bureau use;
- disassemble, decompile, reverse engineer the Licensed Products or otherwise attempt to gain access to its source code;
- sell, license, sublicense, publish, display, distribute, disseminate, loan, assign, or otherwise transfer (whether by sale, exchange, gift, operation of law, or otherwise) to a third party the Licensed Products, any copy thereof, or any License or other rights thereto, in whole or in part, without PTC's prior written consent;
- alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices on or in copies of the Licensed Products;
- use PTC's name, logos, or other trademarks without PTC's prior written consent; and
- copy or otherwise reproduce the Licensed Products in whole or in part, except as may be required for their installation into computer memory for the purpose of executing the program in accordance with this Section 3, and except to make a reasonable number of copies solely for back-up purposes (provided that any such permitted copies shall be the property of PTC and shall reproduce all PTC copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices contained in the original copy obtained from PTC).
4. Audit; Reports.
4.1 Audit. To confirm Customer's compliance with the scope of the Licenses, the express restrictions listed in Section 3, and the other terms and conditions of these Terms and Conditions, Customer agrees to allow PTC to audit Customer's use of the Licensed Products, and to provide PTC access to Customer's facilities and computer systems, and cooperation from Customer's employees and consultants, as reasonably requested by PTC in order to perform such audit, all during normal business hours, and after reasonable prior notice from PTC. If an audit discloses that Customer has failed to comply with one or more terms and conditions of the Licenses, and such failure to comply could have in part or in whole been avoided by Customer having paid additional license fees to expand the scope of the License or Licenses (for example, to increase the number of Permitted Users or to designate a new Designated Country), then Customer shall promptly pay PTC such licensing fees (at PTC's then current rates) together with any other applicable fees and, if such unpaid fees exceed the cost to PTC of such audit, then Customer shall, in addition to paying the unpaid fees, also reimburse PTC the full costs of such audit. . All payments due hereunder shall be made directly to PTC.
4.2 Reports. In the case of Registered Use Licensed Products, Customer agrees to provide to PTC a list of Registered Users certified by an authorized representative of Customer as to its accuracy within ten (10) business days of receipt of such a written request from PTC. In any month in which the number of Registered Users of the Licensed Products exceeds the number of Licenses in effect during such month for such Licensed Products, Customer agrees to pay for such excess Registered Users including applicable license and maintenance fees and failure to pay shall be grounds for termination in accordance with Section 9.1(b).
5. Intellectual Property; Confidential Information.
5.1 Proprietary Rights. PTC and its licensors are the sole owners of the Licensed Products and of any copies of the Licensed Products, and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Licensed Products. All copies of the Licensed Products, in whatever form provided by PTC or made by Customer, shall remain the property of PTC, and such copies shall be deemed to be on loan to Customer during the License Term. Customer acknowledges that the License granted under these Terms and Conditions does not provide Customer with title to or ownership of the Licensed Products or any copies thereof, but only a right of limited use under these Terms and Conditions. Customer shall have no rights to the source code for the Licensed Products and Customer agrees that only PTC shall have the right to maintain, enhance, or otherwise modify the Licensed Products except as permitted under Clause 3.2 above. Except for the rights expressly granted herein, no other rights are granted to Customer with respect to the Licensed Products.
5.2 Confidential Information. Customer agrees that the non-public ideas, and the expressions of those ideas, contained in the Licensed Products comprise trade secrets and confidential and proprietary information and know-how of PTC and its licensors (the "Confidential Information"), and that PTC discloses such Confidential Information to Customer in confidence. During the period these Terms and Conditions is in effect and at all times after its termination, Customer shall maintain the confidentiality of this Confidential Information and shall not disclose or otherwise make available this information to any third party nor use such information except as necessary to exercise Customer's license under Section 3. Customer agrees to take all appropriate and reasonable steps with regard to Customer's employees, consultants, or agents and with regard to Permitted Users and Registered Users to satisfy Customer's obligations under these terms and conditions with respect to use, protection, and security of PTC's Confidential Information. Customer agrees to immediately notify PTC of the unauthorized access to or disclosure or use of the Confidential Information or Licensed Products and to take further steps as may reasonably be requested by PTC to prevent or remedy any such violation.
6. Warranty; Disclaimer of Warranties.
6.1 Warranty. PTC warrants to Customer that it is authorized to grant the License(s) and that, for a period of ninety (90) days following shipment of the Licensed Products to Customer (the "Warranty Period"), the Licensed Products will be free from Errors.
6.2 Sole Remedy. PTC's and its licensors' entire liability and Customer's exclusive remedy for any breach by PTC of the warranty given in Section 6.1 above shall be, at PTC's sole discretion, either to (a) replace the Licensed Product(s), (b) use diligent efforts to repair Errors, provided notice of the Error is received by PTC within the Warranty Period and Customer supplies such additional information regarding the Error as PTC may reasonably request, or (c) if PTC is unable to address the Error as provided in the foregoing clauses (a) or (b), Customer shall be entitled to a full refund of the fees paid by Customer from its authorized reseller for the applicable Licensed Product upon return of such Licensed Product and any copies made thereof. Claims for Errors are excluded in the cases set forth under Section 7.3 a) to e) of these Terms and Conditions.
6.3 No Additional Warranties. No employee, partner, distributor or agent of PTC or any of its resellers or sales agents is authorized to give representations, warranties or covenants greater or different than those contained in this Agreement, except as specifically set forth in a written amendment to this Agreement signed on behalf of Customer by an authorized officer and on behalf of PTC by its legal counsel or European Finance Director.
6.4 Disclaimer of Warranties. Except as expressly stated in this Section 6, PTC disclaims (and Customer waives) all warranties, whether express or implied, written or oral, including any warranty of satisfactory quality, fitness for a particular purpose, and/or non-infringement, and/or any warranty that Customer will achieve any particular return on investment. PTC does not warrant that the operation or other use of the Licensed Products will be uninterrupted or error free or will not cause damage or disruption to Customer's data, computers or networks. The Licensed Products may not be fault tolerant and when used in connection with equipment or systems in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation, air traffic control, direct life support machines, or weapons systems, the failure of the Licensed Products could lead directly to death, personal injury, or severe physical or environmental damage. PTC disclaims all warranties of any kind, express or implied, with respect to Sun Software, Oracle Software and other Third Party Products (described on the Schedule of Third Party Terms), and if any such products are supplied by PTC, they are provided without any warranties except as expressly stated in Section 3.5 above.
7. Indemnification; Infringement.
7.1 PTC's Obligation to Indemnify Customer. PTC, at its own expense, will defend any action brought against Customer based on a claim that any Licensed Product infringes a European patent, copyright or trademark and, at its option, will settle any such action or will pay any final judgment awarded against Customer, provided that: PTC shall be notified promptly in writing by Customer of any notice of any such claim; PTC shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same (save where on the exclusions at 7.3 applies); and Customer shall cooperate fully at PTC's expense with PTC in the defense, settlement or compromise of such claim.
7.2 PTC's Right to Act to Prevent a Claim. If a claim described in Section 7.1 occurs or, in PTC's opinion, may occur, Customer shall permit PTC, at PTC's option and expense: to procure for Customer the right to continue using the Licensed Product; to modify the Licensed Product so that it becomes non-infringing without materially impairing its functionality; or to terminate the applicable Licenses, accept return of the Licensed Products and grant Customer a credit thereon as depreciated on a straight-line five year basis.
7.3 Exclusions from PTC's Obligation to Indemnify Customer. The foregoing provisions of Section 7.1 notwithstanding, PTC shall have no liability to Customer under this Section 7 or otherwise to the extent that any infringement or claim thereof is based upon: (a) use of the Licensed Product in combination with equipment or software not supplied hereunder where the Licensed Product would not itself be infringing; (b) compliance with designs, plans, instructions, or specifications provided by Customer; (c) use of the Licensed Product in an application or environment for which it was not designed or not contemplated under these Terms and Conditions; (d) use of other than a current release of the Licensed Product(s) provided to Customer by PTC; (e) modifications of the Licensed Product by anyone other than PTC or its employees or agents; or (f) any claims of infringement of any patent, copyright, trade secret, trademark or other proprietary right in which Customer has an interest.
7.4 Customer's Obligation to Indemnify PTC. Customer, at Customer's own expense, will indemnify and hold PTC harmless from and against any damages, liabilities, costs and expenses (including PTC's attorneys' reasonable fees) arising out of any third party claim resulting from any of the circumstances listed in clauses (a), (b), (c), (d), (e), or (f) of Section 7.3 above.
8. LIMITATION OF LIABILITY.
The warranty and indemnification provisions of Sections 6 and 7 state the entire liability of PTC, its parent, subsidiaries and affiliates and each of their directors, officers, employees or agents with respect to the Licensed Products and Maintenance Services, including (without limitation) any liability for breach of warranty, or for infringement or alleged infringement of patent, copyrights, trademarks, trade secrets and other intellectual or proprietary rights by the Licensed Products, or their use. Except as set forth in Section 7.1, above, PTC's maximum liability arising out of, or relating to, the creation, license, supply, functioning, use or non or late supply of the Licensed Products or the provision of Maintenance Services or otherwise relating to these Terms and Conditions, whether based upon warranty, contract, tort, or otherwise, shall not exceed the total fees paid by customer in respect of the matter that gave rise to the claim, namely either the licensed products or maintenance services. In no event shall PTC, its subsidiaries or affiliates, or any of their directors, officers, employees or agents be liable for (A) ANY LOSS OF PROFIT, LOSS OF USE DAMAGES, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF REPUTATION OR LOSS OF ANTICIPATED SAVINGS; (B) ANY LOSS OR INACCURACY OF DATA OR BUSINESS INFORMATION; (C) SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED and (d) any loss caused by the interruption, termination or failed operation of the Internet, third party telecommunication services or third party security features or systems), even if PTC has been advised of the possibility of such damages. Customer agrees not to bring any suit or action against PTC and/or its directors, officers, employees or agents for any reason whatsoever more than one year after the cause of action arises. Customer recognizes that fees paid by Customer for the Licensed Products and Maintenance Services are based in part on the disclaimer of warranty and limitation of liability provisions set forth herein and that, in the absence of Customer's agreement to such terms, the charges for the Licensed Products and Maintenance Services would be significantly higher. The limitations and exclusions set forth in this Section 8 shall not apply to any claim in respect of death or personal injury.
9. Termination of Agreement and of Licenses.
9.1 Events Causing Termination of the PTC Terms and Conditions and all Licenses and/or the Termination of the Maintenance Services. These Terms and Conditions and all Licenses and the provision of Maintenance Services on Licensed Products will terminate:
9.2 Events Upon Termination. Upon termination, Customer shall promptly pay all sums owed to PTC under these Terms and Conditions or to the authorized reseller by Customer, return the original copies of all Licensed Products and Documentation to PTC, destroy and/or delete all copies and backup copies thereof from Customer's computer libraries, storage facilities and/or hosting facilities, and certify in writing by an officer that Customer is in compliance with the foregoing requirements and that the Licensed Products are no in Customer's possession or use.
9.3 Survival. Sections 1, 4, 5, 6, 7, 8, 9, and 10 shall survive termination.
- Automatically and without notice on the following events: (i) Customer's breach of Sections 3, 5, 7.4, or 10.4 of these Terms and Conditions; (ii) a receiver, trustee, liquidator, or such similar officer is appointed for Customer or for any of Customer's properties or assets; (iii) Customer makes a general assignment for the benefit of Customer's creditors; (iv) Customer files a petition for its reorganization, dissolution or liquidation, or such a petition is filed against Customer and is not dismissed within sixty (60) days thereafter; or (v) Customer ceases doing business or commence dissolution or liquidation proceedings; or
- Thirty (30) days after written notice from PTC specifying a breach (other than as listed in 9.1(a) above) of the PTC Terms and Conditions, including failure to make any payment due to authorized reseller in a timely manner,
10.1 Governing Law. The PTC Terms and Conditions shall be governed by and construed in accordance with the laws of England & Wales without reference to conflict of laws principles (and specifically excluding the Uniform Computer Information Transactions Act and the U.N. Convention for the International Sale of Goods) and the parties agree to submit to the exclusive jurisdiction of the English courts.
10.2 Notices. Any notice or communication required or permitted under these Terms and Conditions shall be in writing to the parties at the addresses set forth on the Product Schedule submitted by Customer and accepted by PTC or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received (a) if given by hand, immediately; (b) if given by mail, five (5) business days after posting; (c)if given by express courier service, the second business day following dispatch in the jurisdiction of the sender; or (d) if given by fax, upon receipt thereof by the recipient's fax machine or as stated in the sender's transmission confirmation report as produced electronically by sender's fax machine.
10.3 Assignment, Waiver, Modification. Customer may not assign, transfer, delegate or sublicense any of Customer's rights or obligations under the PTC Terms and Conditions (including without limitation assigning customer's rights hereunder by transferring all or part of Customer's assets; whether pursuant to acquisition, operation of law or otherwise) without PTC's prior written consent, and any such attempted delegation, assignment, transfer or sublicense shall be void and a breach of the PTC Terms and Conditions. No waiver, consent, modification, amendment or change of the terms of these Terms and Conditions shall be binding unless in writing and signed by PTC and Customer.
10.4 Export. Customer hereby warrants and represents that Customer is eligible under applicable U.S. export laws to receive and use the Licensed Products and technical data related thereto and that Customer is not listed on either the U.S. Department of Commerce's entity list or denied persons list or the U.S. Department of Treasury's list of specially designated nationals. Customer shall not export or re-export, directly or indirectly, or provide to any other person or entity for export or re-export, any Licensed Products, or technical data related thereto, without first complying with all applicable export control regulations of any jurisdiction to which Customer or the Licensed Products are subject, including, without limitation, obtaining any necessary export or re-export consent from the U.S. Department of Commerce or other governmental authority. Customer will indemnify and hold PTC harmless against any damage, loss, liability or expense (including attorneys' fees) that PTC may incur as a result of Customer's failure to comply with this Section.
10.5 Severability. It is intended that these Terms and Conditions shall not violate any applicable law and the unenforceability or invalidity of any provision (other than the provisions obligating Customer to make payments to PTC) shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from these Terms and Conditions and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.
10.6 Third Party Beneficiaries. It is agreed by the parties to these Terms and Conditions that PTC's licensors are intended beneficiaries of these Terms and Conditions and have the right to rely upon and directly enforce its terms with respect to the products of such licensors.
PTC MAINTENANCE SERVICES TERMS AND CONDITIONS
In addition to the terms above, the following terms and conditions apply to the provision of Maintenance Services by PTC:
- Maintenance Plan; Levels of Maintenance Services. Upon PTC's acceptance of authorized reseller's initial or renewal order for Maintenance Services in respect of Customer's Licensed Products, PTC shall provide Maintenance Services in accordance with these terms for a time period of twelve (12) months (or any other mutually agreed upon time period) (a "Maintenance Plan"). All Maintenance Services are provided subject to authorized reseller's payment for such services at PTC's then current rates. If Customer does not order Maintenance Services to commence on shipment of the Licensed Product(s) and on a continuing basis thereafter, and subsequently wishes to obtain Maintenance Services, Customer must pay (i) the then current fees for Maintenance Services and (ii) the fees for Maintenance Services for any period for which Customer has not purchased Maintenance Services. The levels of Maintenance Services offered and the corresponding services provided thereunder are described on www.ptc.com at:
For Pro/ENGINEER Products: http://www.ptc.com/support/maintenance/maintenance_programs_mcad.pdf
For Windchill Products: http://www.ptc.com/support/maintenance/maintenance_programs_wc.pdf
A Maintenance Plan may not be cancelled by Customer following PTC's acceptance of authorized reseller's order for such Maintenance Plan. With respect to Registered User Licensed Products, annual Maintenance Services ordered by Customer must cover all Licenses granted to Customer for such Licensed Products. PTC is obligated to provide Maintenance Services only during periods for which Customer has paid the applicable Maintenance fees and only in accordance with the level of Maintenance Services Customer has purchased. The services offered under any Maintenance Plan may change from time to time, and PTC may cease to offer such maintenance or Maintenance Plans at any time without notice, subject only to the obligation to refund to Customer the unused portion of any previously paid applicable maintenance fee (as prorated on a monthly basis).
- Telephone Hot Line Support. If Customer purchases Maintenance Services at a level that includes telephone hotline support, PTC shall maintain a telephone hotline that permits Customer to report problems and seek assistance in use of the Licensed Products. The hours during which PTC will provide telephone hotline support will vary depending upon the level of Maintenance Services ordered by Customer. For all levels of Maintenance Services that include telephone hotline support, PTC will provide telephone hotline support in the languages, and during normal business hours for the countries, listed on PTC's website at the website URL listed above. For levels of Maintenance Services that include telephone hotline support during non-business hours, PTC will provide such support in English language only. Regardless of the total number of the Licensed Products licensed by Customer from PTC, Customer is entitled to telephone hotline support only in direct connection with Licenses that are covered by a Maintenance Plan at a level that includes telephone hotline support, at the time Customer requests such support.
- Repair of Errors. With respect to levels of Maintenance Services that include Repair of Errors, PTC shall use diligent efforts to repair Errors or provide workarounds provided notice of the Error is received by PTC during the term of a Maintenance Plan and Customer supplies such additional information regarding the Error as PTC may reasonably request.
- New Releases. PTC will provide Customer with one copy of each New Release for each Licensed Product for which Customer is entitled to Maintenance Services at the time the applicable language version of the New Release is made generally available. PTC reserves the right to make a nominal charge for computer media, shipping and handling with respect to New Releases. Following shipment of the New Release, the previous release shall remain "current" for purposes of these Terms and Conditions for a period of thirty (30) days; thereafter only such New Release will be current.
- PTC is not obligated to perform investigation and/or repair of Errors found by PTC to be in other than a current, unaltered release of the Licensed Products; or caused by Customer's modification of the Licensed Product or use thereof in combination with software not provided by PTC; or caused by improper or unauthorized use of the Licensed Products; or due to external causes such as, but not limited to, power failures or electric power surges.
- PTC shall only be responsible for responding to problems reported by one of the two (2) technical contacts for Customer's main location (which technical contacts and main location have previously been identified in writing to PTC by Customer) and for sending New Releases to the "Central Support Location" designated by Customer in writing. Customer is responsible for the distribution of New Releases to any of Customer's additional locations where Licensed Products are authorized to be used. Customer is responsible for providing to PTC in writing the name, address, phone number, fax number, and e-mail address for each of Customer's designated contacts and Customer's Central Support Location.
- PTC is not obligated to perform any Maintenance Services with respect to modifications or customizations of the Licensed Products, nor with respect to any developments resulting from Customer's use, development or customization of functionality contained within the Licensed Products, all of which are Customer's sole responsibility.
- Right to Subcontract certain Maintenance Services. PTC reserves the right to subcontract, assign or delegate the performance of Telephone Hotline Support and Repair of Errors to a PTC authorized reseller or another third party qualified for delivery of such services to Customer. PTC's obligations to Customer are limited to the obligations and responsibilities set out above. PTC shall have no liability or responsibility in respect of any additional support, offerings, or services of any nature that may be delivered to Customer by the authorized reseller or the respective third party as part of the maintenance services supplied to Customer and all terms in this respect shall be agreed separately between Customer and the authorized reseller or the respective third party.
PTC Licensing Entity
The term "PTC" shall mean the company listed below, opposite the country in which the Customer is incorporated:
|Country of incorporation of Customer
||Licensing Subsidiary of Parametric Technology Corporation
||Parametric Technology GmbH
||Parametric Technology Nederland BV
||PTC Sweden AB
||PTC Sweden AB
||Parametric Technology SA
||Parametric Technology GmbH
||PTC Software and Services (Ireland) Limited
||Parametric Technology Corporation
||Parametric Technology Italia s.r.l.
||Parametric Technology Nederland BV
||PTC Software and Services (Ireland) Limited
||PTC Software and Services (Ireland) Limited
||Parametric Technology Espana SA
||PTC Sweden AB
||Parametric Technology (Schweiz) AG
||Parametric Technology (UK) Ltd
Third Party Component Terms
1. Sun Components
The following terms apply to software and documentation provided by Sun Microsystems, Inc. ("Sun") to the extent any Sun software or documentation ("Sun Software") is included in the Licensed Products, including without limitations Java Runtime Environment, Java Naming and Directory Interface 1.2.1, JavaMail 1.2, JavaBeans Activation Framework 1.0.1, Java Secure Socket Extension 1.0.2, and Java Software Developers Kit:
Customer may not modify the Java Platform Interface ("JPI", identified as classes contained within the "java" package or any subpackages of the "java" package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI.
In the event that Customer creates an additional class and associated API(s) which (i) extends the functionality of a Java platform and (ii) is exposed to third party software developers for the purpose of developing additional software which involves such additional API, Customer must promptly publish broadly an accurate specification for such API for free use by all developers.
Sun Software is confidential copyrighted information of Sun and title to all copies is retained by Sun and/or its licensors. Sun Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility and Sun expressly disclaims any implied warranty of fitness for such uses.
Sun disclaims all express or implied conditions, representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, except to the extent that these disclaimers are held to be legally invalid.
To the extent not prohibited by law, in no event will Sun or its licensors be liable for any lost revenue, profit or data, or for direct, indirect, special, consequential, incidental or punitive damages, however caused and regardless of the theory of liability, arising out of or related to the use of or inability to use Sun Software, even if Sun has been advised of the possibility of such damages.
2. Oracle Components
The following terms apply to software and documentation provided by Oracle Corporation ("Oracle") to the extent any Oracle software or documentation is included in or with the Licensed Products (the "Oracle Software"): Customer understands and agrees that the Oracle Software may only be used in conjunction with the Licensed Products and that Customer will not modify the Oracle Software or publish the results of any benchmark tests run on the Oracle Software. Oracle is a third party beneficiary of this Agreement.
Third Party Products Distributed by PTC for Use With the Licensed Products and Licensed by their respective manufacturers
Certain third party products that are provided with the License Products require a separate license from such third parties to use those third party products ("Third Party Products"). Customer agrees and acknowledges that, to the extent that any such Third Party Products are bundled with the Licensed Products : (i) such third party software is provided on an "as-is", pass-through basis, and as such is provided to Customer without warranty, indemnification, support or other representation by PTC, except as independently provided directly to Customer from the third party licensor; (ii) PTC bears no liability with respect to such products and Maintenance Services for such software will be provided at PTC's discretion; and (iii) Customer may be required to purchase new versions of such products as they become available and supported by PTC.
Currently the following Third Party Products are provided by PTC with certain of the Licensed Products:
- Adobe® Acrobat® Reader. Customer agrees that any copies of Adobe® Acrobat® Reader it receives hereunder are subject to the terms and conditions of the Adobe® Systems Incorporated Electronic End-User License Agreement for Adobe® Acrobat® Reader included therewith.
New Releases may be accompanied by additional Third Party Products.