[Participants of alpha, beta, and pre-release testing must have "always on" Internet access and, depending on the pre-production test stage, must be a SOLIDWORKS® Gold Partner or a Solution Partner at another level, a hardware vendor that is a SOLIDWORKS partner, a vendor providing services to DS SolidWorks under an appropriate vendor services agreement, on DS SolidWorks Subscription Service, or otherwise allowed by DS SolidWorks to receive a copy of software licensed hereunder.]
The terms and conditions that follow and any other terms that are specific terms relating to identified Software and published at http://www.3ds.com/terms/ost, hereby incorporated by reference, set forth a legal agreement ("Agreement") between Dassault Systèmes SolidWorks Corporation ("DS SolidWorks") and you, the end user, and cover any Alpha, Beta, or Pre-Release version (each, as defined below, a "Non-Commercial Release Version") of different offerings consisting of the computer software known as SOLIDWORKS solid modeling software or other product(s) marketed by DS SolidWorks, which may include, without limitation, the SOLIDWORKS Simulation line of analysis products, SOLIDWORKS Composer and the SOLIDWORKS line of product data management products (each a "Product"). Because these versions have not yet been released for large-scale commercial use, their license terms vary from the standard end-user license terms governing DS SolidWorks products. The following is a general description of the Non-Commercial Release Versions, each of which corresponds to a phase of the Product release cycle:
· Alpha – Pre-production version for functionality evaluation. May be unstable and have critical bugs; should never be used in a production environment or to modify production data.
· Beta – Pre-production version for quality evaluation. More stable than the Alpha version but may be unstable and have critical bugs; should never be used in a production environment or to modify production data.
· Pre-Release – The release candidate for First Customer Ship (FCS) and final quality evaluation. No known critical instability or critical bugs. Except for SOLIDWORKS PDM Standard or Professional and SOLIDWORKS Manage Professional and subject to the strong recommendation that you create backups of all data, including, without limitation, model files and data, you may elect to use the Pre-Release Version of the Product(s), other than SOLIDWORKS PDM Standard or Professional and SOLIDWORKS Manage Professional, in a production environment if you so choose. Under no circumstances should SOLIDWORKS PDM Standard or Professional or SOLIDWORKS Manage Professional be used in a production environment.
· Preliminary Service Pack – Non-public, pre-release version of a designated SOLIDWORKS service pack containing one or more updates and fixes and, in some circumstances, new features and/or functionality; should never be used in a production environment or to modify production data.
The Product release cycle moves through each of these phases in order. Once a Product is released into the next phase, you must discontinue your use of the Product version from the previous stage.
The terms of this Agreement vary depending on the particular Non-Commercial Release Version of the Product you are using. You typically can identify the particular Non-Commercial Release Version you are using by selecting Help > About SOLIDWORKS... (or whichever Product you are using).
The following terms and conditions additionally govern your use of all the Non-Commercial Release Versions of the Products:
1. You are granted a personal, nonexclusive, nontransferable, royalty-free and temporary license to use the Non-Commercial Release Version of the Product during the period from initial delivery of the Non-Commercial Release Version of the Product to you until the release of the next phase version or the availability of a commercial release version of the Product as described below (the "Non-Commercial Release Period"). Such use is solely for your own internal testing purposes. You may not sublicense, resell, transfer, assign, lease, rent (including via a timeshare arrangement) or distribute the Product or the license granted by this Agreement to any third party (other than a third party requiring access to SOLIDWORKS PDM Standard or Professional or SOLIDWORKS Manage Professional via a Web client or directly via a VPN) or remove the Product from the country where you received it. You may not use an Alpha, a Beta, or a pre-release Product to develop add-in applications for distribution to one or more third parties unless you are allowed to do so as a SOLIDWORKS Solution Partner. DS SolidWorks and its licensors retain all right, title, and interest in the Product throughout the world, including, without limitation, copyright. You may not copy, modify or make works derivative of the Product and you may not analyze for purposes competitive to DS SolidWorks or its affiliates, reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Product, as such code contains trade secrets of DS SolidWorks and its licensors.
2. DS SolidWorks will provide you with a Non-Commercial Release Version copy of the Product and, at DS SolidWorks' sole discretion, updated versions of the Product that become available during the Non-Commercial Release Period. The Non-Commercial Release Version may also automatically collect certain usage and system data and emails the data to DS SolidWorks to give DS SolidWorks additional information about stability and the use of the Non-Commercial Release Version and you hereby consent to the above.
3. You agree that the Product and related information provided to you at a Non-Commercial Release Version site are not commercially available or available for any public use whatsoever, and these, together with your testing results, are the confidential and proprietary trade secret information of DS SolidWorks and its licensors ("Confidential Information"). You agree that until the Product or any such information is publicly released by DS SolidWorks, you will take at least the same precautions to protect the confidentiality of the Confidential Information as you take to protect your own confidential information and that you will disclose the Confidential Information only to those of your employees who have a need to use the Product in connection with your internal testing process. You agree not to make Confidential Information available in any form to any third party without the prior written consent of DS SolidWorks and not to use the Confidential Information for any purpose inconsistent with this Non-Commercial Release License Agreement. You agree to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by your employees in violation of the provisions of this paragraph.
4. You acknowledge that you are receiving a Non-Commercial Release Version of the Product that may contain software bugs, errors, or other defects, and you agree that you will not rely on the performance of the Product in your business without adequate back-up, parallel, or contingency measures.
5. Alpha and Beta Versions – You must not use the Alpha or Beta version in a production environment. There is no guarantee that (i) model files or data will be compatible with any or all versions of the Product, or (ii) later versions will neither corrupt files created with earlier versions nor contain critical bugs or instabilities. In addition, the access to or operation of certain Alpha, Beta, or Pre-release Products may terminate ("time out") after a certain period of time. There is no assurance that all functionality that appears in the Alpha, Beta, or Pre-release version will be available in the commercially-released version of the Product.
6. DS SolidWorks and its licensors make no warranties with respect to the Product, DS SolidWorks' services, or any data or materials produced using the Product, including, without limitation, any implied warranties of merchantability, non-infringement, and fitness for a particular purpose. DS SolidWorks does not warrant that the Software or service will meet your requirements or that the operation of the Software will be uninterrupted or error-free or that any Internet tool or service will be completely secure. DS SolidWorks and its licensors shall have no liability, whether in contract, tort, or otherwise, for any damages, including, without limitation, direct, indirect, incidental, special, punitive or consequential damages, arising from the Product, use of the Product, DS SolidWorks' services, or any data or materials produced using the Product.
7. In exchange for the license granted in Section 1 of these terms, you agree to provide comments to DS SolidWorks regarding the performance of the Product, including reporting any errors in the Product, and to suggest improvements to the Product. If you are a user of the Alpha or Beta version of the Product, you also agree (i) to participate in periodic telephone feedback sessions, (ii) to respond to inquiries, and (iii) to provide such other reasonable feedback as DS SolidWorks may request. You acknowledge and agree that DS SolidWorks may incorporate any suggested changes or improvements in any release versions of the Product without further liability to you, and that DS SolidWorks will own all rights in any modifications or improvements it chooses to make to commercially-released versions of the Product as a result of your comments.
8. You agree that the Non-Commercial Release License will be in effect until release of the commercially released version of the Product, unless earlier terminated by DS SolidWorks. DS SolidWorks may terminate this Non-Commercial Release License Agreement at any time, for any reason, effective immediately upon written notice to you. Upon notice from DS SolidWorks to you of such termination, or of the availability of the commercially released version of the Product, you agree to destroy all copies of the Non-Commercial Release Version of the Product(s) and provide certification of their destruction in a form reasonably acceptable to DS SolidWorks. You agree that any use by you of the commercially released version of the Product will be subject to the terms of the DS SolidWorks Corporation License, Online and Subscription Services Agreement and to the published rates for the commercially released version of the Product, copies of which will be furnished to you upon request. All provisions of this Agreement shall survive termination except the provisions of the first sentence of Section 1 and the first and second sentences of Section 7 of this Agreement.
9. Additional License Terms for SOLIDWORKS PDM Standard or Professional and SOLIDWORKS Manage Professional: (a) DS SolidWorks licenses the SOLIDWORKS PDM Professional and SOLIDWORKS Manage Professional software on a SolidNetWork Server License model, a Server + Client Access License [CAL] model, a Per Processor model for Microsoft® SQL Server™ 2008 R2 and prior versions, or a Per Core model for SQL Server 2012 and later versions. You may use the SOLIDWORKS PDM Standard or Professional software within a network or other multi-station/client environment, provided you have one (1) SOLIDWORKS PDM Standard or Professional license per user concurrently connected to the SOLIDWORKS PDM Standard or Professional database or archive server and, with respect to SOLIDWORKS PDM Professional licenses only, to the SOLIDWORKS PDM Professional Web server). The SQL Server 2014 Standard Edition, Runtime Restricted-Use Software license contains other provisions regarding concurrent use. The terms of the SQL Server 2014 Express Edition license and the terms of the SQL Server 2014 Standard Edition, Runtime Restricted-Use Software license are delivered with orders for, respectively, SOLIDWORKS PDM Standard software, SOLIDWORKS PDM Professional and SOLIDWORKS Manage Professional software and are incorporated herein by reference. (b) SOLIDWORKS PDM Professional contains embedded software programs provided by Oracle Corporation and its affiliated companies ("Oracle") (the "Oracle Programs"), and notwithstanding the provisions of Section 1 above, Oracle or its licensor(s) retain all ownership and intellectual property rights to the Oracle Programs and are each a third-party beneficiary of this Agreement. The Oracle Programs are subject to a restricted license and can be used only with their associated application package and cannot be modified by you. Some of the Oracle Programs may contain source code that Oracle may provide as part of its standard shipment of such programs, and such code shall be governed by the terms of this Agreement. (c) Third-party technology that may be appropriate or necessary for use with some of the Oracle Programs is specified in the application program documentation or as otherwise notified by DS SolidWorks, and such technology is licensed to you only for use with the application package under the terms of the third-party license agreement specified in the application package documentation or as otherwise notified by DS SolidWorks and not under the terms of this Agreement. (d) You agree (i) to allow DS SolidWorks to audit your use of the Oracle Programs and (ii) to provide DS SolidWorks with reasonable assistance and access to information in the course of such audit, (iii) to allow DS SolidWorks to report the results of such audit to Oracle or to assign to Oracle DS SolidWorks' right to conduct the audit (without any obligation or liability on Oracle to pay your or DS SolidWorks' costs incurred as a result of the audit). (e) You acknowledge that SOLIDWORKS PDM Professional and SOLIDWORKS Manage Professional each contains software and technical data that are subject to the export control laws of the United States or the United Kingdom, and you agree not to directly or indirectly export, re-export SOLIDWORKS PDM Professional or SOLIDWORKS Manage Professional, i.e., move SOLIDWORKS PDM Professional or SOLIDWORKS Manage Professional from the country in which you first licensed it, without the appropriate United States or foreign government licenses and the written approval of DS SolidWorks and its licensors.
10. Windows Desktop Search: Microsoft Corporation (or based on where you live, one of its affiliates) licenses this supplement to you. You may use a copy of this supplement with each validly licensed copy of Microsoft Windows software identified for use with it (the "Microsoft software"). You may not use it if you do not have a license for the Microsoft software. The license terms for the Microsoft software apply to your use of this supplement.
11. Education Licenses: Additional terms and conditions apply to all licenses of SOLIDWORKS Education Edition, Student Edition and Research Edition software. Details are provided here.
12. Export Rules: Export to you of the Product and Documentation is subject to all applicable countries' export and re-export laws and regulations, including but not limited to the export control laws of the United States or the United Kingdom. DS SolidWorks and its licensors shall have no liability towards you if necessary authorizations, licenses or approvals are not obtained. You shall not export or re-export, either directly or indirectly, the Product when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. You hereby warrant to DS SolidWorks that all Products ordered hereunder shall not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical or biological weapons or missile delivery systems, and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. You recognize that your Data may be transferred to or stored in any country. You undertake to abstain from, and shall ensure all users abstain from, processing, storing or uploading on its data-sharing environment any information or data, the export of which is controlled, regulated or subject to any permit or license under any applicable law or regulation. You shall be deemed to be the exporter of your Data. DS SolidWorks may terminate this Agreement and all licenses and access to the Online Services hereunder upon written notice if you violate these provisions.
13. Audit: During the term of this Agreement and for a period of three (3) years thereafter, you shall establish and maintain accurate information records relating to the use of the Product, including, without limitation, the list and location of users accessing and using the Product. When applicable, such information shall include destruction of the Product and the measures put in place by you to protect access to and use of the Product. DS SolidWorks shall have the right - at any time, at its own expense and under reasonable conditions of time and place - to audit and copy these records and/or your use of the Product. You also hereby authorize DS SolidWorks to verify your compliance with the terms of this Agreement. For such purpose, DS SolidWorks may conduct an audit on your premises (or on premises where the Product is installed for your use) during normal business hours, in a manner that minimizes disruption to your business. DS SolidWorks may require you to provide it, or any third party that DS SolidWorks engages to conduct such verification, with machine access, copies of system tools outputs, or other electronic or hard-copy system information as appropriate and allow execution of all appropriate tools generating audit records. If the audit reveals unauthorized use of the Product, you shall promptly pay to DS SolidWorks any amount(s) owed as a result of such unauthorized use at the Product's then-current list price. If such unauthorized use is five percent (5%) or greater of your authorized use with respect to the applicable Product, then, in addition to you paying the applicable charges, you shall reimburse DS SolidWorks for the cost of such audit. By invoking the rights and procedures described above, DS SolidWorks does not waive its right to enforce this Agreement or to protect its intellectual property by any other means permitted by law.
14. Third-Party Hosting: You are authorized to install and use the Product remotely on computers operated by a well-established, reputable third-party service provider, and to appoint such service provider to operate the hardware and manage the Product solely for you and on your behalf; provided, however, (i) only duly authorized users shall have the right to use the Product; (ii) you shall enter into a written agreement with such service provider under which the service provider agrees that its access to the Product is solely for the purpose of providing the services mentioned above to you and is otherwise subject to all of the restrictions and limitations contained in this Agreement; and (iii) such service provider is not a competitor of DS SolidWorks or any affiliate or subsidiary of DS SolidWorks. You acknowledge and agree that the service provider shall be deemed your agent. If you become aware of any actual or suspected unauthorized access, use or disclosure of the Product, you shall immediately terminate the service provider's access to the Product. You shall defend and indemnify DS SolidWorks against any claim, expense, judgment, damage or loss (including reasonable attorneys' fees) that arises out of or in any way relates to any such service provider's access to or use of the Product.
The SQL Server Standard licenses provided with SOLIDWORKS PDM Professional and SOLIDWORKS Manage cannot be moved to a public cloud service, i.e., a computing service offered by a third-party provider over the Internet. Other special restrictions apply with respect to the deployment of SOLIDWORKS PDM Professional and SOLIDWORKS Manage on third-party servers.
15. This Non-Commercial Release Version license contains the entire agreement between you and DS SolidWorks with respect to its subject, and shall be governed by, and construed and enforced in accordance with, the substantive laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of law.
16. Terms Applicable to European Union (EU), Iceland, Liechtenstein, and Norway Residents:
"Applicable Data Protection Legislation" means, as from 25 May 2018, the Regulation (EU) 2016/679 (General Data Protection Regulation) and any delegated and implementing acts adopted in accordance with the General Data Protection Regulation and the member state's laws specifying the provisions of the General Data Protection Regulation applicable to the Processing implemented.
"Controller", "Data Subject", "Personal Data", "Process/Processing", "Processor" and "Personal Data Breach" shall have the same meanings as in the Applicable Data Protection Legislation.
"Sub-Processor" means any Processor appointed by DS SolidWorks or by any other Sub-Processor of DS SolidWorks that receives, from DS SolidWorks or from any other Sub-Processor of DS SolidWorks, Personal Data for the sole and exclusive purpose of Processing activities to be carried out on your behalf in accordance with the terms of this Agreement and the terms of a written subcontract if applicable.
· to the maximum extent permitted by applicable law or for the duration of licensed use of the Software, whichever is longer, Process Your Personal Data in accordance with this Agreement and your written reasonable instructions, which shall in all circumstances be consistent with this Agreement;
· ensure that any and all persons who are authorized to Process Your Personal Data are bound by appropriate obligations of confidentiality;
· reasonably assist you in ensuring compliance with your obligations as a Data Controller regarding sections 32 to 36 of the General Data Protection Regulation, taking into account the nature of Processing as described in this Agreement. If DS SolidWorks has reason to believe that a Personal Data Breach affecting you has occurred, DS SolidWorks will (i) notify you of the Personal Data Breach promptly after DS SolidWorks becomes aware of such Personal Data Breach, and (ii) provide you with all relevant and available information to allow you to comply with your notification obligations with competent supervisory authority;
· reasonably assist you to fulfill your obligations in response to requests from Data Subjects to exercise their rights under Applicable Data Protection Legislation in a manner consistent with the use of the Software and DS SolidWorks' role as a Processor.
· make available to you all information in DS SolidWorks' possession needed to demonstrate your compliance with your obligations as required by the Applicable Data Protection Legislation and reflected in this section and, in the event compliance with Applicable Data Protection Legislation cannot be evidenced through the appropriate documentation provided by DS SolidWorks, allow for an audit. You shall notify DS SolidWorks in writing of any such audit at least thirty (30) days in advance by indicating the audit's scope, which shall be limited to assessing your compliance when the documentation provided by DS SolidWorks does not demonstrate such compliance, such audit shall be conducted by an independent auditor chosen by you at your cost and shall be performed not more than once every twelve (12) months;
· keep a list of the Sub-Processors that will be involved in the Processing of Your Personal Data due to the Processing activities implemented on your behalf and inform you of any intended changes concerning the addition or replacement of other Sub-Processors, thereby giving you the opportunity to object to such changes. You will be notified at least fifteen (15) days in advance before authorizing any new Sub-Processor to Process Your Personal Data with a mechanism to obtain notice of that update, except in case of emergency. You may reasonably object to DS SolidWorks' use of a new Sub-Processor if (i) such new Sub-Processor Processes Your Personal Data, and (ii) you demonstrate that you have a legitimate interest and notify DS SolidWorks, in writing, within fifteen (15) days after your receipt of the notice, it being understood and accepted that, in the absence of an objection from you, you shall be deemed to have accepted the Sub-Processor. If you notify DS SolidWorks of your objection related to the new Sub-Processor within the above timeframe, you may terminate the Software affected by this change of Sub-Processor within fifteen (15) days after DS SolidWorks' receipt of such notice; and
· upon termination or expiration of this Agreement, delete or return all of Your Personal Data to you, at your option, and delete all existing copies, except where applicable law requires retention of such Personal Data or where such Personal Data is necessary for proof purposes during the applicable statute of limitation.