VECTORWORKS CLOUD SERVICES
TERMS OF SERVICE
Your use of Vectorworks Cloud Services (the "Service") is subject to your review and agreement to the terms and conditions set forth in this document (the "Terms of Service"). Please read these Terms of Service carefully before accepting them. You, or if applicable, the company or other legal entity you represent (in either case, "You"), must accept these Terms of Service in order to access or use the Service. If You click "Accept", or if You otherwise access or use the Service, You will be deemed to have accepted the Terms of Service, and You be a party to a legally binding contract between You and Nemetschek Vectorworks, Inc. ("Nemetschek", "We", or "Us"). By accepting the Terms of Service, You represent and warrant (i) that You have read and understand the Terms of Service and agree to be bound by them; (ii) if You represent a company or other legal entity, that You have the requisite right, power and authority to bind Your company or other legal entity to these Terms of Service; and (iii) whether or not You represent a company or other legal entity, You have the legal capacity to form a binding contract. If You do not accept these Terms of Service, do not access or use the Service.
1. THE SERVICE
1.1. Use of the Service
Subject to Your compliance with these Terms of Service, Nemetschek grants You a limited, non-exclusive license to submit, post, reproduce, publish, distribute or otherwise transmit, create and view designs, data, information and/or other files or content using the Service (individually and collectively, "Content").
1.2. License Restrictions
Nemetschek reserves all rights not granted to You under these Terms of Service. To the fullest extent permitted under applicable law, You are prohibited from doing any of the following: (a) transferring any or all of the Service, or any rights granted to You by these Terms of Service, to any other person or legal entity; (b) removing, altering or obscuring any copyright, trademark, confidentiality or other proprietary notices, labels or marks from or on the Service; (c) modifying, translating, adapting, arranging or creating derivative works based on the Service; (d) decompiling, disassembling or otherwise reverse engineering the Service; or (e) determining or attempting to determine any source code, algorithms, methods or techniques used or embodied in the Service.
1.3. Access to the Service
Nemetschek reserves the right to control access to the Service, including without limitation through the use of username(s) and/or password(s). You are solely responsible for maintaining the confidentiality of Your username(s) and/or password(s), if any, and are fully responsible for the activities of anyone who accesses the Service using Your username(s) and/or password(s). You agree to notify Nemetschek immediately upon becoming aware of any unauthorized use of Your username(s) and/or password(s).
1.4. Modifications to the Service
Nemetschek reserves the right, in its sole discretion, to modify the Service at any time and from time to time, without notice. Such modifications to the Service may include, without limitation, adding, modifying or removing features and/or functionality, and suspending or discontinuing the entire Service.
1.5. Modifications to these Terms of Service
Nemetschek reserves the right to modify the Terms of Service from time to time, in Our sole discretion, by posting the revised Terms of Service to https://cloud.vectorworks.net/termsofservice ("Terms of Service Page"). The revised Terms of Service will take effect and be legally binding on You upon posting to the Terms of Service Page unless a different effective date is specified in the revised Terms of Service. You are solely responsible for regularly checking the Terms of Service Page for revisions to the Terms of Service. Your continued use of the Service after the effective date of any revision will be deemed to signify Your acceptance of the revised Terms of Service. If You do not agree to any revision to the Terms of Service, You must immediately stop using the Service and notify Nemetschek thereof.
Nemetschek reserves the right to notify You directly (e.g., via email) of any revisions to the Terms of Service, but any such direct notification will in no way affect Our right to modify the Terms of Service by posting revisions to the Terms of Service Page, nor does it affect Your responsibility to regularly check the Terms of Service Page for revisions to the Terms of Service.
2. RESPONSIBILITY FOR CONTENT, Conduct
You acknowledge and agree that You are solely responsible for any and all Content that You store, create and/or modify using the Service, and for Your conduct while using the Service. You may not use the Service to store, create, or modify any Content that: (a) is false or misleading; (b) is defamatory; (c) invades another's privacy; (c) promotes hatred or harm against any group or individual; (d) is obscene; (e) infringes, misappropriates or violates another's rights, including but not limited to intellectual property rights; (f) contains software viruses, harmful materials or any other computer code, files, or programs designed to destroy, interrupt or limit the functionality of any computer software or hardware or telecommunications equipment; (g) violates any laws or regulations; or (h) encourages, promotes or provides instructional information about illegal activities. Nemetschek reserves the right to delete or disable access to any such Content from the Service without notice to You and without liability to You or any third party.
You acknowledge and agree that: (a) You assume all risks associated with the use of any Content, including any reliance by You or any third party on the accuracy, completeness, or usefulness of the Content; (b) under no circumstances will Nemetschek be liable in any way for the Content, including without limitation any errors or omissions in any Content, the accuracy or speed of any calculations or rendering carried out by the Service, or any formatting in Your Content that is unsupported by the Service, or any loss or damages of any kind as a result of the foregoing or otherwise arising from Your storage, use, creation, modification, or deletion of any Content. You should maintain copies of Your Content in locations other than in the Service in accordance with standard backup procedures, and You agree that Nemetschek will have no responsibility or liability for any loss or damages incurred by You or any third party which reasonably could have been prevented by Your maintenance of such copies and/or backups.
You acknowledge and agree that You are solely responsible for Your conduct while using the Service. You may not use or access the Service except as expressly permitted under these Terms of Service. You agree to use the Service for lawful purposes only. You agree not to use the Service in any manner or in connection with any activity that violates any applicable law or regulation, or that violates the privacy or other rights of another person or legal entity. Without limiting the foregoing, You acknowledge and agree that You are responsible for compliance with all applicable privacy and data protection laws related to personally-identifiable information provided to Nemetschek in connection with Your use of the Service.
You agree that You will not: (a) interfere with or disrupt the Service or any servers or networks used in connection with the Service; (b) intentionally gain or attempt to gain access to Content other than Your Content; (c) circumvent or attempt to circumvent the storage, computation time or other limits imposed on Your use of the Service; (d) use any automated means, including but not limited to, agents, robots, spiders or other similar applications, to access or use the Service; (e) use the Service to perform stress or performance testing on the Service; (f) take any action that imposes an unreasonable or excessive burden on Nemetschek's or any third party's infrastructure, including the Service; or (g) use the Service to harass or disparage any person or entity, including but not limited to Nemetschek. Nemetschek will not be liable for any loss or damages incurred by You or any third party arising from or related to Your misuse or abuse of the Service.
3. PROVISION OF THE SERVICE
While Nemetschek may take reasonable measures to protect Your Content from unauthorized access or other security breaches, Nemetschek provides no assurances that such unauthorized access or other security breaches will not occur. Nemetschek is not responsible for any unauthorized access or other breach of security or confidentiality related to Your Content, nor for any loss or damages arising from or related to any such unauthorized access or other breach.
3.2. Physical Location of Content
Nemetschek uses third-party service providers in connection with the Service, who may maintain and store Your Content in locations anywhere around the world. Your Content, or the data incorporated into it, may be subject to legal or contractual restrictions limiting or prohibiting its storage or transmission to particular physical locations. You acknowledge and agree that You are solely responsible for complying with any such restrictions. Nemetschek is not responsible for Your failure to comply with any such restrictions, and will not be liable to You or any third party for any loss or damages resulting from any such failure.
3.3. Service Downtime
Nemetschek does not guarantee that Your access to and use of the Service will be uninterrupted and does not guarantee any minimum availability to the Service. Nemetschek will not be liable to You or any third party for any loss or damages related to or arising out of any period of time during which You are unable to access the Service.
3.4. Geographical Scope
The Service may not be offered, available or fully supported in all regions, countries or jurisdictions of the world. Nemetschek may restrict or limit the Service's availability, in whole or in part, in or to any geographical location(s) or jurisdiction(s), in Nemetschek's sole discretion.
3.5. Telecommunication Services
You are solely responsible for obtaining access to and paying for all equipment, telecommunications services and other resources necessary for You to access and use the Service.
3.6. Export Control
You acknowledge and agree that Your use of the Service is subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury ("Export Control Laws"). You represent and warrant that (i) You are not a citizen of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, Sudan, Syria and North Korea), (ii) You are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department's List of Specially Designated Nationals and Other Blocked Persons, the U.S. Department of Commerce's Denied Party List, Entity List and Unverified List and the U.S. Department of State proliferation-related lists), and (iii) that no Content created or submitted by You is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that You will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, any Content to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which You may be subject. You are solely responsible for (i) complying with the Export Control Laws and (ii) monitoring them for any modifications.
4. Proprietary Rights
4.1. Nemetschek Property
You acknowledge and agree that the Terms of Service do not grant You any right, title or interest in the Service or any software used to provide the Service, except as expressly provided herein. You acknowledge and agree that Nemetschek and its licensors own all legal right, title and interest in the Service, including but not limited to all patent, trademark, copyright, trade secret and other intellectual property rights in the Service. You further agree that You will take no action to jeopardize, encumber, limit or otherwise interfere with Nemetschek's or its licensors' ownership and other rights therein.
4.2. License to Content
By creating or making Content available to Nemetschek using the Service, You hereby grant Nemetschek, and any third parties Nemetschek engages in connection with its provision of the Service or a portion thereof, the right to use, modify, adapt, reproduce, distribute, and display Content solely to the extent necessary to provide the Service. You represent and warrant that You have all rights necessary to submit, post, reproduce, publish, distribute, and otherwise transmit all Content through the Service.
4.3. Personal Information
Subject to applicable law, Nemetschek may share any name, address and other personal information included in Your Content with third parties (i) in order to comply with applicable law or legal process, or (ii) solely in connection with Our provision of the Service, including without limitation with the distributor responsible for Your Vectorworks Service Select subscription.
4.4. Digital Millennium Copyright Act
Pursuant to Title 17, United States Code, Section 512(c)(2), if You believe that Your work has been used or published in the Service in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Us with a notification pursuant to the Notices provision of these Terms of Service.
To the maximum extent permitted by applicable law, You agree to indemnify and hold Nemetschek, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising out of or in connection with Your use of the Service, including without limitation: (1) an assertion that the Content, or any use thereof, may infringe any copyright, trademark, or other intellectual property rights of any individual or entity, or may constitute a misappropriation of any individual or entity's trade secret, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials; (2) any breach of or failure by You to comply with these Terms of Service or with applicable law; or (3) any actions taken by person(s) using Your username(s) and/or password(s), if any, whether or not access to the Service by such person(s), or the actions taken, were authorized by You. You will not agree to any settlement of any claim under this Section without the prior written consent of Nemetschek, and Nemetschek shall have the right to participate, at its own expense, in the defense of any claim with counsel of its own choosing.
6. Warranty Disclaimer
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
(a) THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEMETSCHEK EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOUR USE OF THE SERVICE AND ANY ASSOCIATED RESULTS IS AT YOUR OWN RISK;
(b) NEMETSCHEK DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS OF THE SERVICE OR YOUR USE THEREOF WILL BE ACCURATE OR RELIABLE; OR (iv) ERRORS IN THE SERVICE WILL BE CORRECTED;
(c) ANY INFORMATION OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS TO BE USED AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT MAY RESULT FROM DOWNLOADING OR OTHERWISE OBTAINING ANY SUCH INFORMATION OR MATERIAL; AND
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEMETSCHEK OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
7. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEMETSCHEK, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES AND AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF NEMETSCHEK HAS BEEN ADVISED BY YOU OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, including without limitation as a result of service downtime; (ii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iii) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (iv) NEMETSCHEK'S ACTIONS OR OMISSIONS IN RELIANCE UPON INFORMATION YOU PROVIDE TO US AND ANY CHANGES THERETO; (v) NEMETSCHEK'S ACTIONS OR OMISSIONS IN RELIANCE UPON NOTICES RECEIVED FROM YOU; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR CONTENT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCESS TO OR USE OF THE SERVICE IN ACCORDANCE WITH THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY TO ALL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF NEMETSCHEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
8. Release and Waiver
To the maximum extent permitted by applicable law, You hereby release and waive all claims against Nemetschek, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners from any and all liability for claims, damages (direct and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with Your use of the Service.
You acknowledge and agree that releases, waivers, warranty disclaimers, limitations of liability and indemnities provided herein are a fundamental basis of the bargain between You and Nemetschek, and are a material part of the consideration received by Nemetschek for the provision of the Service pursuant to these Terms of Service, and Nemetschek would not have entered into these Terms of Service in the absence of such releases, waivers, warranty disclaimers, limitations of liability and indemnities.
9. Exclusions and Limitations
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS IN SECTIONS 6, 7 AND 8 WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Term and Termination
These Terms of Service become effective on the date You first accept the Terms of Service, and will continue in force until terminated as set forth herein. Either Nemetschek or You may terminate the Terms of Service at any time, with or without notice. Upon termination of the Terms of Service for any reason, any and all rights You have under these Terms of Service will expire, and You must immediately cease all use of the Service. After termination, Nemetschek may, but is not obligated to, provide You with access to the Service for a reasonable time solely to the extent necessary to permit You to retrieve Your Content from the Service, and Nemetschek reserves the right to limit Your access to any features of the Service not related to Your retrieval of Your Content. Upon termination, and after the reasonable time described in the immediately preceding sentence (if any), Nemetschek shall have the right, but not the obligation, to delete any Content at any time without notice to You and without liability to You or any third party.
11.1. Entire Agreement
These Terms of Service constitute the entire agreement between You and Nemetschek regarding Your access to and/or use of the Service and supersede all prior or contemporaneous communications and/or proposals regarding such access and/or use.
11.2. Choice of Law and Venue
Any dispute arising from these Terms of Service and the relationship between You and Nemetschek shall be governed by the laws of the State of Maryland, without regard to its conflict of law provisions, but the Maryland Uniform Computer Information Transactions Act does not apply to these Terms of Service. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within the State of Maryland with respect to all claims, suits or proceedings arising from or related to the Service or these Terms of Service.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Service, and the remainder of these Terms of Service shall continue in full force and effect.
11.4. No Waiver by Nemetschek
Any failure by Nemetschek to enforce any provision of the Terms of Service shall not constitute a waiver thereof, but will apply solely to the instance to which such failure was directed.
Notices to Nemetschek pursuant to these Terms of Service shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to Nemetschek Vectorworks, Inc., 7150 Riverwood Drive Columbia, MD 21046, USA, Attention: Cloud Services Manager. Notice by Nemetschek will be sent to You at the contact information You have provided to us, as updated from time to time. You acknowledge and agree that We may rely upon the contact information You have provided to Us as being accurate, complete and reliable, and Nemetschek is not responsible for any inaccuracy thereof and shall have no liability for any loss or damages to You or a third party arising from or related to such inaccuracy.
The section headings used in these Terms of Service are for convenience only and are not to be given any substantive effect.
These Terms of Service may be translated into languages other than English. In the event of any inconsistency between the English-language version of these Terms of Service and translations thereof, the English-language version will control.
The rights and obligations set forth in these Terms of Service shall survive termination of these Terms of Service to the extent that the survival of such rights or obligations is necessary to permit their complete fulfillment or discharge. Without limiting the preceding sentence, Sections 5-9 of these Terms of Service shall survive termination.