Autodesk® Green Building Studio® Service Terms of Use
Revised September 30, 2010
IMPORTANT -- PLEASE
READ CAREFULLY THE TERMS OF USE BELOW. BY SELECTING THE
“I ACCEPT” BUTTON ON THE USER LOGIN PAGE OR BY ACCESSING OR
USING THE AUTODESK GREEN BUILDING STUDIO SERVICE
OR ANY PORTION OF THE SERVICE ON THE WEB SITE
OR through AUTODESK’S
OTHER products OR SERVICES,
YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS TOU.
YOU SHOULD PRINT AND KEEP A COPY OF THIS TOU.
These Terms of Use ("TOU")
constitute a legal and binding agreement between Autodesk, Inc. (“Autodesk”)
and the person or legal entity who has received access to the Autodesk
Green Building Studio Service as described herein (“Customer”)
and Customer’s employees, and agents working on Customer’s site
who access the Autodesk Green Building Studio Service using Customer’s
account (“Users”). Customer's and Users’ right to (i) access
and use the Autodesk Green Building Studio Service or any portion thereof
(the “Service”) through a restricted Web site ("Site")
or otherwise, (ii) download, print, transmit, or otherwise use documents
and certain other materials that describe or provide results from the
Service (the "Autodesk Materials"), and (iii) use and
access any customer support services purchased by Customer with respect
to the Service and the Site (“Customer Support Services”)
(the Service, the Site, the Autodesk Materials and the Customer Support
Services are collectively referred to as the "Autodesk Green
Building Studio Solutions") is governed by this TOU.
By logging in to the
Site or by accessing or using any Autodesk Green Building Studio Solutions,
you are agreeing to enter into this TOU and to be bound by and comply
with all of the terms and conditions set forth herein. If you do not
agree to all the terms and conditions of this TOU, do not log in to
the Site or use or access the Autodesk Green Building Studio Solutions.
1. SERVICE ACCESS.
Subject to the terms and conditions of
this TOU, including payment by Customer of all amounts due hereunder,
Autodesk grants a personal, nonexclusive, revocable, nontransferable
license, without the right to sublicense, to Customer and Users to access
and use the Autodesk
Green Building Studio Solutions hosted
on servers owned or operated by Autodesk or its designee during the
Term in connection with Customer’s business purposes. For customers
who purchase a subscription to the Service via a valid order form (the
“Order Form”), the specific Autodesk Green Building Studio
Solutions shall be identified in the Order Form and the usage rights
shall be limited to the number of user licenses for which Customer has
fully paid the applicable license fees to Autodesk. To be eligible
to access and use the Autodesk
Green Building Studio Solutions,
Customer must have either (i) validly purchased a subscription to the
Service via a valid Order Form or have validly received access to the
Service as an Autodesk Subscription benefit, and must be current in
all payments due to Autodesk under such Order Form or as an Autodesk
subscriber, (ii) validly received a Trial Version, Educational Institutional
Version or Student Version subscription from Autodesk, or (iii) validly
received access to the Service or portion thereof from Autodesk through
a separate Autodesk product or service.
Subject to the requirements set forth herein, Customers who validly purchase a subscription to the Service via a valid Order Form or who validly receive access to the Service as an Autodesk Subscription benefit, or who validly receive a Trial Version, Educational Institutional Version or Student Version subscription from Autodesk may provide unique user log-in information to Users who collaborate on Customer’s project to enable such Users to access the Service, up to a maximum number of Users for which Customer has fully paid the applicable license fees or for which Autodesk has authorized access rights (whichever is fewer). In addition, Customers who receive access to the Service through a separate Autodesk product or service may access results by logging on to the Site, and may allow the number of Users authorized by Autodesk to view Customer’s results on the Site. Customer shall be responsible and liable for all Users’ compliance with this TOU and use of the Content and Autodesk Green Building Studio Solutions. Autodesk will not allow more than one individual to access the Autodesk Green Building Studio Solutions at the same time under a single user license. Except as otherwise permitted herein, Customer and its Users will not: (i) rent, lease, lend, assign, sublicense, transfer, distribute, sell or otherwise make available, the Autodesk Green Building Studio Solutions to any third party; (ii) use or permit the Autodesk Green Building Studio Solutions to be used, as part of a service bureau, time-sharing, interactive cable system or otherwise, for the benefit of any third party, or (iii) reverse engineer, decompile, or disassemble the Autodesk Green Building Studio Solutions or permit any third party to do the same. Customer and its Users may not (a) remove, alter, or obscure any proprietary notices, labels, or marks from the Autodesk Materials, or (b) modify, translate, adapt, arrange, or create derivative works based on the Autodesk Materials for any purpose without Autodesk’s prior written authorization. The Autodesk Green Building Studio Solutions may be accessed and used only as a single product and its components may not be separated for access, distribution or use unless expressly permitted by Autodesk.
FOR TRIAL VERSIONS ONLY, THE FOLLOWING PARAGRAPH APPLIES:
Trial Version. If Autodesk identifies your subscription as a demonstration, evaluation, temporary or trial version (“Trial Version”), you may access and use the Autodesk Green Building Studio Solutions only for the purpose of evaluation and demonstration, and for no other purpose. Without limiting the foregoing, you may not use them for competitive analysis, or commercial, professional, or other for-profit purposes. The Trial Version may only be accessed and used for a thirty (30) day trial period, unless otherwise specified by Autodesk in writing.
FOR EDUCATIONAL VERSIONS ONLY, THE FOLLOWING THREE PARAGRAPHS APPLY:
Educational Institution Version: If Autodesk identifies your subscription as an “Educational Institutional Version”, you may access and use the Autodesk Green Building Studio Solutions only for the purpose of instruction and for personal learning purposes, and for no other purpose. Without limiting the foregoing, Educational Institution Versions of the Autodesk Green Building Studio Solutions may not be used for commercial, professional, commercial training or other for-profit purposes.
Student Version. If Autodesk
identifies your subscription as a “Student Version”, you may access
and use the Autodesk
Green Building Studio Solutions only
for personal learning purposes, and no other purpose. Without
limiting the foregoing, Student Versions of the Autodesk
Green Building Studio Solutions may
not be used for commercial, professional, commercial training or other
for-profit purposes. Student Versions of the Autodesk
Green Building Studio Solutions may
not be used by an education institution in a lab environment for instruction
purposes.
Additionally, Student Versions may only be used by faculty, staff members and degree, diploma or certificate-seeking students at qualified educational institutions. For purposes of this paragraph, a degree, diploma or certificate-seeking student means a student who is, at the time of access of the Student Version, enrolled at a recognized educational institution for (i) three (3) or more credit hours in a degree-granting educational program; or (ii) a nine-month or longer certificate program. Upon request by Autodesk, you agree to provide proof of such enrollment.
NOTE: ALL REMAINING PROVISIONS OF THIS AGREEMENT APPLY TO ALL VERSIONS OF the Autodesk Green Building Studio Solutions.
2. REGISTRATION.
Customers and/or Users who validly purchase
a subscription to the Service via a valid Order Form, who validly receive
access to the Service as an Autodesk Subscription benefit, or who receive
a Trial Version, Educational Institutional Version or Student Version
subscription from Autodesk will be required to provide certain contact
and account information as part of a registration process in order to
utilize the Autodesk
Green Building Studio Solutions.
Each Customer and User (i) represents and warrants that all information
submitted by it during the registration process is accurate and (ii)
agrees to update this information to keep it accurate and complete during
the term of this TOU. Customer and each User grants to Autodesk
the right to store on the Site personal contact information provided
by Customer and such Users as part of the registration process.
3. PAYMENT.
The quote set forth in any Autodesk Order
Form may not include any taxes, which may apply to your purchase and
which shall be the responsibility of Customer. Any such taxes required
to be collected by Autodesk shall be added to the amount quoted and
shall appear as a separate item when invoiced by Autodesk.
The right of Autodesk to receive any
payment will not be subject to any abatement, reduction, setoff, defense,
counterclaim or recoup of any amount due or alleged to be due because
of any past, present or future claims of Customer or any User.
4. USERS.
Autodesk has the right to restrict the
number of Users who submit support requests, have access to the Service or Site or who otherwise have access to or use the Autodesk Green Building Studio Solutions. Fees or other conditions may apply
if you want to add Users beyond Autodesk guidelines. You agree and acknowledge
that all Users shall be bound by the applicable terms and conditions
of this TOU. Autodesk reserves the right, but shall have no obligation,
to verify that Users have been authorized by you and to restrict access
to the Autodesk Green
Building Studio Solutions entitlements
if, in its reasonable judgment, a User cannot be so verified.
5. ALL RIGHTS RESERVED.
Except as expressly provided otherwise
in this TOU, title, ownership, and all rights and interest including,
without limitation, patents, copyrights, trademarks, trade secrets,
and other intellectual property rights, in and to the Autodesk
Green Building Studio Solutions remain
with Autodesk and its licensors. The structure, organization, and code
of the Autodesk Green
Building Studio Solutions and accompanying
materials, if any, are valuable trade secrets of Autodesk and its licensors,
and Customer and/or User shall keep such trade secrets confidential.
No logo, graphic, sound, content or image from the Site may be copied
or retransmitted unless expressly permitted by Autodesk in a separate
writing. The Autodesk
Green Building Studio Solutions are
licensed, not sold.
6. ACCEPTABLE USE AND PRIVACY POLICY.
Customer’s and Users’ use of
the Autodesk Green
Building Studio Solutions is subject
to compliance with Autodesk’s Rules Of Conduct (available at http://usa.autodesk.com/
As part of the Service, Customer and
User data will be submitted and gathered in accordance with Autodesk’s
Privacy Policy, available at http://usa.autodesk.com/
7. RIGHT TO REMOVE OR DISABLE ACCESS.
If Autodesk is made aware of Content
or Customer or User conduct that is, or that Autodesk believes in good
faith may be, (i) libelous, obscene, excessively violent or defamatory,
(ii) a violation of any law, regulation, or rights of a third party,
including, but not limited to, rights under the copyright law and prohibitions
on libel, slander, and invasion of privacy, or (iii) a violation of
Autodesk’s Acceptable Use Policy, Autodesk has the right, but not
the obligation, to immediately remove or disable access to that Content
and/or terminate Customer’s and/or User’s ability to access the Autodesk Green Building Studio Solutions without notice to the Customer.
8. LICENSE BY CUSTOMER AND USERS.
Customer shall ensure that it has the
requisite rights to submit, post, reproduce, publish, distribute, or
otherwise transmit all material, information and media submitted or
uploaded by Customer or its Users on or through the Service and/or Site,
including without limitation building design information and/or gbXML
file(s) uploaded by Customer or its Users (“Content”). Autodesk
acknowledges that it does not own the Content that Customer or its Users
submit to the Service and/or Site in connection with the Autodesk Green Building Studio Solutions.
By submitting, posting, or otherwise
making Content available to Autodesk, or available to any individual
or entity on or through the Service and/or Site, each of Customer and
each User hereby grants Autodesk a non-exclusive, royalty free, paid
up, worldwide, sub-licensable license to use, read, store, publicly
display, publicly perform, reproduce, modify, transmit, distribute,
add information to and otherwise create derivative works of the Content
to enable Autodesk (a) to perform services under this Agreement including,
without limitation, energy, water, and carbon emission and related simulation
services; (b) to qualify products and services of third party vendors
for implementing the building design created by Customer or such User;
(c) to share gbXML file(s) and/or the information content of such
gbXML file(s), with third party entities individually or by category
whom Customer or such User has authorized Autodesk to share such information;
(d) to use and disclose building statistics and analysis results on
an anonymous basis ; and (e) to format, maintain, repair, protect, organize
and otherwise administer the Autodesk Green Building Solutions and otherwise
use such Content in the ordinary course of Autodesk’s, or its designated
third parties’, provision of the Autodesk Green Building Solutions.
9. CONTENT: GENERAL.
As between Autodesk and Customer, Customer
is solely responsible for all Content and all activities that occur
on the Service and/or Site under Customer’s account, including, without
limitation any comments, information, questions, data, plans, feedback,
ideas, descriptions of processes, or other information submitted, posted,
reproduced, published, distributed, or otherwise transmitted to Autodesk
by Customer or any User through the Service and/or Site. Customer may
use the Autodesk
Green Building Studio Solutions for
lawful purposes only.
Customer is responsible for implementing
sufficient procedures and checkpoints to satisfy Customer’s particular
requirements for accuracy of data input and output. Customer acknowledges
that: (i) Customer will evaluate and bear all risks associated with the
use of any Content, including any reliance by Customer or its Users
on the accuracy, completeness, or usefulness of such Content; and (ii)
under no circumstances will Autodesk be liable in any way for any Content,
including, but not limited to, any errors or omissions in any Content,
or any loss or damages of any kind incurred as a result of Customer’s
or any User’s use, deletion, modification, or correction of any Content.
10. PROTECTION OF CONTENT.
Customer shall maintain backup copies
of the Content submitted to the Service and/or Site. Autodesk makes
no warranties or representations regarding its back-up practices, and
does not warrant that it will be able to restore any lost or damaged
Content or other data. Customer acknowledges that no network security
procedures can assure complete network security or prevent all unauthorized
access to the Service and/or Site and will immediately notify Autodesk
of any known security breaches affecting the Service and/or Site.
11. CONFIDENTIALITY.
11.1 Confidential Information.
As used in this TOU, confidential information shall mean (a) any information
disclosed by a party (“Disclosing Party”) to the other party
(“Receiving Party”) that is marked or designated as “confidential”
or “proprietary” at the time of disclosure, (b) Autodesk Materials,
(c) information related to access to the Service and/or Site, including
Customer’s registration information and account passwords, (d) information
related to Autodesk’s business or operations, product plans or product
prices, and (e) the terms of this TOU (collectively “Confidential
Information”).
11.2 Limitations on Disclosure and
Use of Confidential Information. Receiving Party shall exercise
the same degree of care employed by such party to prevent the unauthorized
disclosure of its own Confidential Information, but in no event employing
less than reasonable care. Confidential Information disclosed under
this TOU shall only be used by Receiving Party in the furtherance of
this TOU or the performance of its obligations hereunder. Receiving
Party may disclose Confidential Information pursuant to any statutory
or regulatory authority or court order, provided Disclosing Party is
given prompt prior written notice of such requirement and the scope
of such disclosure is limited to the extent possible. Notwithstanding
the foregoing, nothing herein shall limit Autodesk’s right to disclose
its standard and other Autodesk Confidential Information to third parties.
11.3 Exceptions. Confidential
Information shall not include information that from and after the date
of disclosure: (i) is or becomes a matter of public knowledge
through no fault of the Receiving Party; or (ii) was rightfully in the
Receiving Party’s possession prior to receipt from the Disclosing
Party free of any obligation of confidence, as shown by Recipient’s
written records; or (iii) was rightfully disclosed to the Receiving
Party by another person without restriction as to use or disclosure;
or (iv) is independently developed by the Receiving Party without use
of or reference to the Disclosing Party’s Confidential Information
as shown by Receiving Party’s written records.
11.4 Independent Development.
Receiving Party reserves the right to independently develop and market
any technology, products or services or pursue business opportunities
that compete with or are similar to those disclosed by Disclosing Party
under this TOU without the use of the Disclosing Party’s Confidential
Information.
12. AUTODESK LIMITED WARRANTY AND DISCLAIMER.
12.1 (i) Autodesk warrants to Customer that, as of the Effective Date and for a period of sixty (60) days thereafter, the Service will provide substantially the features and functions described in the online help documentation for the version of the Service purchased by Customer under normal use and circumstances. Autodesk's entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is, at Autodesk's sole option, to attempt to correct or work around errors, or to refund the license fees actually paid by Customer and terminate this TOU. Customer must notify Autodesk of any claim under the warranty set forth in this Section 12.1(i) within thirty (30) days of occurrence of the event giving rise to such claim.
(ii) Autodesk
warrants to Customer that the Customer Support Services will be performed
in a manner consistent with generally accepted industry standards and
practices applicable to support services of a similar nature as the
Customer Support Services. Autodesk’s entire liability and Customer’s
exclusive remedy for breach of the warranty set forth in the preceding
sentence is for Autodesk to use commercially reasonable efforts to correct
or re-perform the non-conforming Customer Support Services in accordance
with generally accepted industry standards and practices applicable
to support services of a similar nature as the Customer Support Services.
Customer must notify Autodesk of any claim under the warranty set forth
in this Section 12.1(ii) within thirty (30) days of occurrence of the
event giving rise to such claim,
12.2 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 12.1 HEREOF,
THE SERVICE AND THE Autodesk
Green Building Studio SOLUTIONS
ARE PROVIDED "AS IS" AND AUTODESK AND ITS SUPPLIERS MAKE NO
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, (i) REGARDING THE USABILITY, SUITABILITY,
CONDITION, OPERATION OR ACCURACY OF THE
SERVICE OR THE Autodesk
Green Building Studio SOLUTIONS,
OR (ii) THAT ACCESS TO OR USE OF THE CONTENT,
THE SERVICE OR
Autodesk Green Building Studio
SOLUTIONS WILL BE AVAILABLE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (iii)
THAT THE
Autodesk Green Building Studio
SOLUTIONS WILL DELIVER CUSTOMER’S DESIRED RESULTS OR MEET CUSTOMER
REQUIREMENTS OR EXPECTATIONS, OR (iv) THAT THE CONTENT, Autodesk Green Building Studio SOLUTIONS AND
THE SERVICE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE
THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. EXCEPT FOR THE
EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12.1, AUTODESK AND ITS
SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY,
TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY,
SECURITY OR ACCURACY. CUSTOMER'S AND USERS’
USE OF THE Autodesk
Green Building Studio SOLUTIONS
AND CONTENT IS AT ITS OWN RISK, AND CUSTOMER ASSUMES FULL RESPONSIBILITY
AND RISK OF LOSS RESULTING FROM USE OF OR INABILITY TO USE THE CONTENT,
THE SERVICE, OR THE Autodesk
Green Building Studio SOLUTIONS.
12.3 GENERAL DISCLAIMER. AUTODESK
GREEN BUILDING STUDIO SOLUTIONS ARE INTENDED TO BE USED BY TRAINED PROFESSIONALS
ONLY. THEY ARE NOT SUBSTITUTES FOR YOUR PROFESSIONAL JUDGMENT OR INDEPENDENT
TESTING. AUTODESK GREEN BUILDING STUDIO SOLUTIONS ARE INTENDED TO ASSIST
WITH DESIGN AND ARE NOT SUBSTITUTES FOR INDEPENDENT DESIGN ANALYSIS,
ESTIMATION, OR TESTING OF DESIGN STRESS, SAFETY, AND UTILITY. DUE TO
THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE AUTODESK GREEN BUILDING
STUDIO SOLUTIONS, THEY HAVE NOT BEEN TESTED IN ALL SITUATIONS UNDER
WHICH THEY MAY BE USED. Autodesk SHALL NOT BE LIABLE IN
ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE
AUTODESK GREEN BUILDING STUDIO SOLUTIONS. PERSONS USING THE AUTODESK
GREEN BUILDING STUDIO SOLUTIONS ARE RESPONSIBLE FOR THE SUPERVISION,
MANAGEMENT, AND CONTROL OF THEIR USE. THIS RESPONSIBILITY INCLUDES,
BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE
AUTODESK GREEN BUILDING STUDIO SOLUTIONS AND THE SELECTION OF OTHER
PROGRAMS AND SERVICES TO ACHIEVE INTENDED RESULTS. PERSONS USING
THE AUTODESK GREEN BUILDING STUDIO SOLUTIONS ARE ALSO RESPONSIBLE FOR
ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE
RELIABILITY AND ACCURACY OF ANY OUTPUT, INCLUDING ANY RESULTS PROVIDED.
13. LIMITATION OF LIABILITY.
AUTODESK’S AND ITS SUPPLIERS’
ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
TOU, THE Autodesk
Green Building Studio SOLUTIONS,
THE SERVICE, AND THE CONTENT SHALL NOT EXCEED, IN THE AGGREGATE, THE
TOTAL OF $10,000 USD.
IN ADDITION, IN NO EVENT SHALL AUTODESK
OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL,
OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUE OR DATA, OR COST OF COVER
ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE Autodesk
Green Building Studio SOLUTIONS,
THE SERVICE, OR THE CONTENT.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 SHALL
APPLY TO ALL DAMAGES, CLAIMS AND LOSSES, HOWEVER CAUSED AND REGARDLESS
OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT (INCLUDING,
BUT NOT LIMITED TO, WARRANTY OR INDEMNIFICATION CLAIMS), TORT (INCLUDING,
BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF AUTODESK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER
THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
14. TERM, SUSPENSION AND TERMINATION.
The effective date (“Effective Date”)
of the initial term (“Initial Term”) of your subscription will be
the date specified on your Autodesk Order Form or the date Autodesk
has identified as your subscription start date (whichever is earlier)
and, unless otherwise specified by Autodesk, will continue for one (1)
year from the Effective Date. Renewal terms of subscription (each,
a “Renewal Term”) shall commence on an anniversary of the Effective
Date and, unless otherwise specified on your Autodesk Order Form or
otherwise specified by Autodesk, will continue for one (1) year from
the anniversary of the Effective Date immediately following the end
of the Initial Term or the immediately preceding Renewal Term (as the
case may be). The Initial Term and any Renewal Term(s) (if any) of your
subscription are collectively referred to as the “Term”. This TOU
takes effect on the Effective Date, and shall continue during the Term
of your subscription, or, if earlier, until the date on which your subscription
is terminated in accordance with the terms set forth herein. Each
of Autodesk and you may immediately terminate your subscription if either
party fails to perform its obligations under this TOU and such failure
continues for thirty (30) days after written notice by the non-defaulting
party.
Autodesk may suspend or terminate your
subscription if you fail to pay Autodesk or your reseller (as the case
may be) for a subscription or renewal in accordance with their terms.
Autodesk may terminate your subscription at any time for convenience,
in which case Autodesk shall refund that proportion of the subscription
fee you paid which equals the unexpired portion of the then current
term. In addition, Autodesk may terminate your subscription, without
penalty or further obligation, for any reason upon ninety (90) days
prior written notice to Customer.
For free or evaluation subscriptions
to the Autodesk Green
Building Studio Solutions, or for
access to the Autodesk
Green Building Studio Solutions through
an Autodesk software product or service Autodesk may suspend or terminate
your subscription and/or Customer’s and Users’ access to the Autodesk Green Building Studio Solutions in its sole discretion at any time
without notice and without penalty or further obligation.
Should Autodesk elect termination for
any reason other than Customer’s default, Customer shall only be liable
for a pro rata payment for those Autodesk
Green Building Studio Solutions delivered
to Customer prior to the effective date of termination. Termination
is in addition to all other legal or equitable remedies available to
Autodesk. Sections 3, 5, 8, 9, 11, 12.2, 13, 14, 16, 17 and 18.4 shall
survive any termination.
15. EFFECT OF TERMINATION.
Upon termination of this TOU for any
reason, Customer shall cease to access the Autodesk
Green Building Studio Solutions.
Upon termination, Customer and all of Customer’s Users will delete
all Autodesk Materials made available by Autodesk to Customer or its
Users under this TOU, except for analytical results generated by the
Service. Customer may keep one back-up copy of such materials
for archival purposes only. Upon termination of the TOU, all of
Customer’s and each User’s rights hereunder shall cease and Customer
shall remove all Content and data from the Autodesk
Green Building Studio Solutions.
Customer acknowledges and agrees that Autodesk also may delete the Content
and data from the Autodesk
Green Building Studio Solutions (and
all backups thereof), without further notice upon any termination or
expiration of this TOU, and that Autodesk is not liable for any loss
or damage which may be incurred by Customer, Users or any third parties
as a result of such deletion.
16. INDEMNITY.
Customer agrees to indemnify, defend
and hold harmless Autodesk and its officers, directors, owners, agents,
employees and suppliers (collectively, the "Autodesk
Indemnified Parties") from all damages, losses, liability,
costs and expenses (including, without limitation, reasonable attorneys’
fees) incurred by the Autodesk Indemnified Parties in connection with
any third party claim against an Autodesk Indemnified Party arising
out of or related to any claim that the Content or Customer’s or Users’
use of the Autodesk
Green Building Studio Solutions violates
any applicable law, rule, regulation or the rights of any third party.
Autodesk shall promptly notify Customer of any such claim and shall
cooperate, at Customer’s expense, as reasonably required by Customer
in the defense of any claim. Customer shall have the right to conduct
the defense of any such claim, provided, however, that Autodesk shall
have the right, at its own expense, to participate in the defense of
any matter subject to indemnification hereunder, and Customer shall
not settle any such claim without the consent of Autodesk. Autodesk
reserves the right to assume the exclusive defense and control of any
matter otherwise subject to indemnification by Customer hereunder.
17. ENTIRE AGREEMENT.
This document
(including the documents incorporated by reference herein) contains
the entire agreement and understanding between Customer or User and
Autodesk concerning the subject matter of this TOU, and supersedes all
other prior or contemporaneous communications, representations, advertising,
discussions, negotiations, proposed agreements and all other agreements,
whether written or oral for the Autodesk
Green Building Studio Solutions.
Autodesk has not made and Customer has not relied upon any representations
not expressly set forth in this document in making this TOU.
The TOU may be modified only by a written
agreement duly executed by authorized signatories for each party.
Autodesk may update or modify the terms of the Acceptable Use Policy
or its support policies at any time with or without notice, effective
upon posting the updated version thereof on the Autodesk Green Building Studio Solutions Web page (or any successor or replacement
Web page designated by Autodesk) located on Autodesk’s Website at www.autodesk.com. Customer and Users are responsible for
regularly reviewing such updates. If Customer or User does not
accept a modification by Autodesk to its policies, Customer must notify
Autodesk of its cancellation of its subscription to the Autodesk Green Building Studio Solutions within thirty (30) days, and Customer
or User must immediately discontinue accessing and using the Autodesk Green Building Studio Solutions. If Customer or User continues
to use the Autodesk
Green Building Studio Solutions,
Customer or User will be deemed to have accepted the modifications.
18. GENERAL PROVISIONS.
18.1. Waiver/Severability.
No term or provision hereof will be considered
waived, and no breach excused, unless such waiver is in writing signed
on behalf of the party against whom the waiver is asserted. No
waiver (whether express or implied) will constitute a consent to, waiver
of or excuse of any other, different or subsequent breach. If
and to the extent any provision of this TOU is held illegal, invalid,
or unenforceable in whole or in part under applicable law, such provision
or such portion thereof shall be ineffective as to the jurisdiction
in which it is illegal, invalid, or unenforceable to the extent of its
illegality, invalidity, or unenforceability and shall be deemed modified
to the extent necessary to conform to applicable law so as to give the
maximum effect to the intent of the parties. The illegality, invalidity,
or unenforceability of such provision in that jurisdiction shall not
in any way affect the legality, validity, or enforceability of any other
provision of this TOU in any other jurisdiction.
18.2. Force Majeure.
Except for the failure to make payments,
neither party will be liable for any loss, damage or penalty resulting
from delays or failures in performance resulting from acts of God, war,
terrorism or terrorist act, civil unrest, strikes, lockouts or other
labor disturbances, failure or interruption of a third party internet
connection(s) or infrastructure, supplier delay or other causes beyond
the non-performing party’s reasonable control and not caused by the
negligence of the non-performing party, provided that the non-performing
party promptly notifies the other party of the delay and the cause thereof
and promptly resumes performance as soon as it is reasonably possible
to do so.
18.3. Independent Contractor.
In performing their respective duties
under this TOU, each of the parties will be operating as an independent
contractor. Nothing contained herein will in any way constitute any
association, partnership, or joint venture between the parties hereto,
or be construed to evidence the intention of the parties to establish
any such relationship. Neither of the parties will hold itself out in
any manner that would be contrary to the provisions of this Section
18.3.
18.4. Governing Law, Jurisdiction
and Venue.
The Autodesk
Green Building Studio Solutions are
currently controlled by Autodesk and third party vendors from within
the state of California, United States of America. By accessing or using
the Autodesk Green
Building Studio Solutions, Customer
agrees that the statutes and laws of the State of California, without
regard to the conflicts of laws principles thereof, shall govern all
matters relating to Customer’s access to, or use of, the Autodesk Green Building Studio Solutions. Customer and Autodesk specifically
disclaim the U.N. Convention on Contracts for the International Sale
of Goods. No choice of law rules of any jurisdiction apply. The parties
hereby submit to the exclusive personal jurisdiction of and venue in
the Superior Court of the State of California, County of Marin or County
of Santa Clara, and the United States District Court for the Northern
District of California in San Francisco in respect of all claims arising
out of or related to the Autodesk
Green Building Studio Solutions and
the TOU. The TOU is void where prohibited by law, and the right
to access the Autodesk
Green Building Studio Solutions is
hereby revoked in such jurisdictions.
18.5. Export.
In conformity with laws and regulations
of the United States and other countries relating to international trade,
Customer and its employees, agents and Users shall not disclose, export
or re-export, directly or indirectly, any product, documentation or
technical data (or direct products thereof) provided under this TOU
or use the Autodesk
Green Building Studio Solutions to
disclose, export or re-export any Content to any country, entity or
other party which is ineligible to receive such items under U.S. laws
and regulations as modified from time to time by the U.S. Department
of Commerce or the U.S. Department of the Treasury or under other laws
or regulations to which Customer may be subject. Customer shall be
solely responsible for (i) complying with those laws and regulations
and (ii) monitoring any modifications to them.
Autodesk makes no representation that
the Autodesk Green
Building Studio Solutions or Content
are appropriate or available for use in locations outside the United
States, and accessing them from territories where their contents are
illegal is prohibited. Those who choose to access the Autodesk
Green Building Studio Solutions or
Content from other locations do so on their own initiative and risk,
and are responsible for compliance with local laws.
18.6. Notices.
Notices to Autodesk under the TOU 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: Autodesk,
Inc., Attention: Legal Department, 111 McInnis Parkway, San Rafael,
California 94903. Neither party may make any public statement, press
release, or other public announcement relating to the terms of or existence
of the TOU or any relationship between the parties, without the prior
written approval of the other party, except as required by law; provided,
however, that Autodesk may identify Customer as a customer on any Autodesk
customer list published orally, in print or electronically. The
TOU is in the English language only, which language shall be controlling
in all respects, and all versions hereof, in any other language, shall
not be binding on the parties hereto. All communications and notices
to be made or given pursuant to the TOU shall be in the English language
only.
18.7. Links.
The Autodesk
Green Building Studio Solutions may
contain links to third-party Web sites that are not under the control
of Autodesk. When Customer accesses a non-Autodesk Web site, Customer
does so at Customer’s own risk and Autodesk is not responsible for
the accuracy or reliability of any information, data, opinions, advice,
or statements made on these sites; or for the quality of any products
or services available on such sites; or for any damage or loss caused
or alleged to be caused through or in connection with use of or reliance
on the content, goods, or services available on or through any such
link, site, or resource.
18.8. Assignment.
Customer agrees that its rights and obligations
under this TOU may not be transferred or assigned and its duties may
not be delegated directly or indirectly without the prior written consent
of Autodesk in its sole discretion. Autodesk may assign or otherwise
transfer its rights and obligations to successors-in-interest (whether
by purchase of stock or assets, merger, operation of law, or otherwise)
of that portion of its business related to the subject matter hereof.
Any attempted assignment in violation of this Section 18.8 shall be
a material breach of this TOU and shall be void. Subject to the
restrictions set forth in this Section 18.8, all of the terms and conditions
of this TOU shall be binding upon, inure to the benefit of, and be enforceable
by the respective successors and permitted assigns of the parties hereto.
Third Party Terms. The third party terms located at https://gbs.autodesk.com/gbs/Account/ThirdPartyTerms apply to the Autodesk Green Building Studio Service Offering.
