LICENSE AND SERVICES AGREEMENT

READ CAREFULLY:  SKETCHBOOK, INC. (“SKETCHBOOK”) LICENSES THE SKETCHBOOK SOFTWARE (THE “SOFTWARE”) AND RELATED MATERIALS (INCLUDING THE SOFTWARE, THE SUPPLEMENTAL MATERIALS AND THE USER DOCUMENTATION, THE “SKETCHBOOK MATERIALS”) ONLY ON THE CONDITION THAT YOU (“LICENSEE”) ACCEPT ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS LICENSE AND SERVICE AGREEMENT (THIS “AGREEMENT”).  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL, USE, OR COPY ANY OF THE SKETCHBOOK MATERIALS.

DEFINED TERMS:  TERMS THAT ARE CAPITALIZED IN THIS AGREEMENT ARE DEFINED TERMS.  TERMS NOT DEFINED IN THE MAIN BODY OF THIS AGREEMENT ARE DEFINED IN EXHIBIT A AT THE END OF THIS AGREEMENT.

1.  Acceptance

By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Sketchbook Materials, you acknowledge and agree that (a) if accepting on your own behalf, you accept all terms of this Agreement and shall be legally bound by such terms, (b) if accepting on behalf of an entity for which you are authorized to act (e.g., an employer), such entity accepts all terms of this Agreement and shall be legally bound by such terms, and (c) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself.  You may not accept this Agreement on behalf of an entity unless you are an employee or other agent of such entity with the right, power and authority to act on behalf of such entity.

If you are unwilling to accept this Agreement, or you do not have the right, power and authority to act on behalf of and bind an entity or yourself as an individual (if there is no such entity), DO NOT SELECT THE “I ACCEPT” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE SKETCHBOOK MATERIALS. 

2.  License

2.1  License Grant.  Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, Sketchbook grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to Install and Access the Software (in object code only) and the other Sketchbook Materials, solely in accordance with all terms of this Agreement.

2.2  License Types.  Sketchbook offers two types of licenses to the Software.  The “Standard License” is a fully, functional, perpetual (subject to the terms of this Agreement) version of the Software made available to you by our channel partners after payment of applicable fees.  The “Trial License” is a fully functional, time-limited version (as specified at the time of download, or if not specified, the term shall be ten (10) days from Installation) of the Software made available to you by our channel partners without charge but ONLY for the purpose of demonstrating and/or evaluating the capabilities of the Software for licensing of the Standard Edition and not for competitive analysis or commercial use.  Work product and other data created with a Trial License shall terminate upon expiration or termination of the Trial License.  Sketchbook will have no responsibility or liability whatsoever for Licensee’s loss of any work product or other data created pursuant to a Trial License.

2.3  Updates. Sketchbook may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Sketchbook Materials (“Updates”). Licensee acknowledges that installing Updates may be required to continue using the Sketchbook Materials, and Licensee agrees to do so unless Licensee wishes to stop using the Sketchbook Materials.

2.4 Authorized Users.  The Sketchbook Materials may be Installed and/or Accessed only by Licensee and if Licensee is an entity then by its Personnel (each, an “Authorized User”).  Licensee is responsible for compliance with this Agreement by any person who may have Access to the Sketchbook Materials through Licensee whether or not such person is an Authorized User.

2.5 Third-Party Terms of Service and Materials.  Installing or Accessing the Sketchbook Materials may require you to review and approve the terms of service of our third-party channel partners through which the Sketchbook Materials are made available for download.  In addition, the Sketchbook Materials may contain or be accompanied by third-party software, data or other materials that are subject to terms of service that are in addition to the terms set forth in this Agreement.  Such terms may be included or referenced in or with such third-party software, data or other materials (e.g., in the “About box”) or a web page specified by such third party.  Licensee agrees to comply with such terms.  In addition, Licensee will take sole responsibility for obtaining and complying with any licenses that may be necessary to use third-party software, data or other materials that Licensee uses or obtains for use in conjunction with the Sketchbook Materials.  Licensee acknowledges and agrees that Sketchbook has no responsibility for, and makes no representations or warranties regarding, such third-party software, data or other materials or Licensee’s use of such third-party software, data or other materials.

2.6 APIs.  Licensee acknowledges and agrees that any API Information (as defined below) and Development Materials (as defined below), unless otherwise specified by Sketchbook in additional or different terms associated with such API Information or Development Materials, (a) are confidential and proprietary to Sketchbook, (b) may not be distributed, disclosed or otherwise provided to third parties, (c) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Sketchbook Materials to which the API Information or Development Materials relate, such as the development and support of applications, modules and components to operate on or with such Sketchbook Materials, and (d) may only be Installed on the same Computer(s) where such Sketchbook Materials are permitted to be Installed.  Notwithstanding the foregoing or Section 4.1 (All Rights Reserved), if Licensee develops any such applications, modules and components in accordance with this Agreement, nothing in this Agreement will prohibit Licensee from using such applications, modules and components with (and porting such applications, modules and components to) other software and hardware (including the software and hardware of third parties), if such applications, modules and components (i) do not incorporate or embody any Development Materials or other Sketchbook Materials (other than the API Information that was used in the development thereof in accordance with this Agreement) and (ii) do not disclose the API Information. For purposes of this Section 2.6 (APIs), (A) “API Information” means the standard applications programming interface (“API”) information generally provided by Sketchbook to licensees of the Sketchbook Materials that specifies the requirements for interfacing to (e.g., invoking or directing the functions of) the software included in such Sketchbook Materials; and (B) “Development Materials” means SDKs and other toolkits, libraries, scripts, reference or sample code, and similar developer materials included in the Sketchbook Materials.

3. License Limitations; Prohibitions

3.1 Limitations and Exclusions.

3.1.1 No License Granted; Unauthorized Activities.  The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement (and this Agreement expressly excludes any right) (a) to any Sketchbook Materials for which Licensee has not paid the applicable fees, (b) to any Sketchbook Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement, (c) for Installation of or Access to the Software outside the scope of the applicable License Type, (d) for Installation of the Sketchbook Materials on any Computer other than a Computer owned or leased, and controlled, by Licensee, unless otherwise expressly authorized in writing by Sketchbook, (e) to distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide all or any portion of the Sketchbook Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by Sketchbook, (f) to provide or make available any features or functionality of the Sketchbook Materials to any person or entity (other than to and for Licensee itself for the purpose specified in the applicable License Type), whether or not over a network and whether or not on a hosted basis, (g) to Install or Access or allow the Installation of or Access to the Sketchbook Materials over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology, (h) to remove, alter or obscure any proprietary notices, labels or marks in the Sketchbook Materials, (i) to decompile, disassemble or otherwise reverse engineer the Sketchbook Materials, or (j) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Sketchbook Materials for any purpose, or (k) to any individual who is not age 16 years or older at the time of download (a child who is less than age 16 years old may not Access or Install the Sketchbook Materials unless the child’s parent or guardian has downloaded the Sketchbook Materials and permitted the child to use the Sketchbook Materials after downloading).

3.1.2 Effect of Unauthorized Use.  Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 3.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”).  Any such Unauthorized Use, and any Installation of or Access to the Sketchbook Materials provided under this Agreement, outside of the scope of the applicable license grants or otherwise not in accordance with this Agreement, constitute or result in infringement of Sketchbook’s intellectual property rights as well as a breach of this Agreement.  Licensee will notify Sketchbook promptly of any such Unauthorized Uses or other unauthorized Installation or Access.

3.2  Circumvention. Licensee may not (a) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Sketchbook in connection with the Sketchbook Materials, or (b) Install or Access the Sketchbook Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by Sketchbook.  Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any tool or technical protection measure provided or made available by Sketchbook for managing, monitoring or controlling Installation of or Access to Sketchbook Materials.

4. All Rights Reserved; Feedback

4.1  All Rights Reserved. Sketchbook and its licensors retain title to and ownership of, and all other rights with respect to, the Sketchbook Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.  Licensee has only the limited licenses granted with respect to the Sketchbook Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise.  Licensee acknowledges and agrees that the Sketchbook Materials are licensed, not sold, and that rights to Install and Access the Sketchbook Materials are acquired only under the license from Sketchbook.  The structure and organization of software included in the Sketchbook Materials, any source code or similar materials relating to such software, any API Information and Development Materials (both as defined in Section 2.6 (APIs)), and any other Sketchbook Materials identified as confidential or proprietary are valuable trade secrets of, and confidential and proprietary information of, Sketchbook and its licensors, and (a) may not be distributed, disclosed or otherwise provided to third parties, and (b) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Sketchbook Materials. 

4.2 Feedback.  Licensee acknowledges and agrees that Sketchbook shall have a perpetual, irrevocable, royalty free, paid-up, transferrable, sublicensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback (as defined below) for any purposes. For purposes of this Section 4.2 (Feedback), “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Licensee (whether in oral, electronic or written form) to Sketchbook related to the Sketchbook Materials.  Sketchbook acknowledges and agrees that (a) you do not have to provide Feedback, and (b) all Feedback is provided “AS IS.”

5. Privacy; Connectivity; Indemnity

5.1 Privacy and Use of Information.  Licensee acknowledges and agrees that Licensee and/or its agents may provide, and Sketchbook may obtain, certain information and data with respect to Licensee (including, without limitation, personal information) in connection with this Agreement, including, without limitation, information and data provided to or obtained by Sketchbook through the Customer Information Form or otherwise, in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring Installation of and Access to Sketchbook Materials and Services and managing the relationship with Licensee.  Licensee hereby consents to Sketchbook maintaining, using, storing and disclosing such information and data (including, without limitation, personal information, if any) in conformity with Sketchbook’s policies on privacy and data protection, as such policies may be updated from time to time, including without limitation Sketchbook’s Privacy Statement, as currently located at https://www.sketchbook.com/privacy.

5.2 Connectivity.  Certain Sketchbook Materials may facilitate or require Licensee’s access to and use of content and services that are hosted on websites maintained by Sketchbook or by third parties.  In some cases, such content and services may appear to be a feature or function within, or extension of, the Sketchbook Materials on Licensee’s Computer even though hosted on such websites.  Accessing such content or services and use of Sketchbook Materials may cause Licensee’s Computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with a Sketchbook or third-party website—for example, for purposes of providing Licensee with additional information, features and functionality or to validate that the Sketchbook Materials and/or content or services are being used as permitted under this Agreement or other applicable terms.  Such connectivity to Sketchbook websites is governed by Sketchbook’s policies on privacy and data protection described in Section 5.1 (Privacy and Use of Information).  Such connectivity to websites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services.  Sketchbook does not control, endorse, or accept responsibility for any such third-party content or services, and any dealings between Licensee and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Licensee and such third party.  Sketchbook may at any time, for any reason, modify or discontinue the availability of any third-party content or services. Access to and use of certain content and services (whether of Sketchbook or third parties) may require assent to separate terms and/or payment of additional fees.

5.3 Indemnity.  Licensee agrees to defend, indemnify and hold harmless Sketchbook and its licensors and each of their respective officers, directors, and employees (“Indemnified Parties”) from and against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by Indemnified Parties by reason of any claim, suit or proceeding arising out of or in connection with: (a) Licensee’s content, information, or other materials posted, provided, uploaded, submitted, shared, published, distributed, made available, accessible or usable by Licensee on, to, from or through the Software (“User Content”) or use of User Content, including, without limitation, any assertion that User Content or the use thereof may infringe any copyright, trademark, or other intellectual property or other rights of any individual or entity, or are a misappropriation or violation of any individual or entity’s trade secret or other rights, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials, or use thereof caused death or bodily injury or damage to the real or tangible property of any third party; (b) any breach of or failure by Licensee to comply with the terms of this Agreement; or (c) use of the Sketchbook Materials by Licensee (or anyone who accesses the Sketchbook Materials through Licensee).

6. Limited Warranty and Disclaimers

6.1 Limited Warranty.  Sketchbook warrants that, as of the date on which the Sketchbook Materials are delivered to Licensee and for thirty (30) days thereafter or if the license term is shorter, such shorter period (“Warranty Period”), the Sketchbook Materials will provide the general features and functions described in the User Documentation portion of the Sketchbook Materials.  Sketchbook's entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Sketchbook’s option, (a) to attempt to correct or work around errors, if any, or (b) to refund the license fees, if any, paid by Licensee and terminate this Agreement or the license specific to such Sketchbook Materials.  THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6.1 (LIMITED WARRANTY) GIVES LICENSEE SPECIFIC LEGAL RIGHTS.  LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION.  SKETCHBOOK DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.

6.2 General Disclaimer.  EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 6.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKETCHBOOK MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY SKETCHBOOK MATERIALS OR SERVICES.  ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SKETCHBOOK MATERIALS OR SERVICES AND THEIR FEATURES OR FUNCTIONALITY IN THE SKETCHBOOK MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION.  WITHOUT LIMITING THE FOREGOING, SKETCHBOOK DOES NOT WARRANT:  (a) THAT THE OPERATION OR OUTPUT OF THE SKETCHBOOK MATERIALS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER SUPPORT BY SKETCHBOOK OR ANY THIRD PARTY; (b) THAT ERRORS WILL BE CORRECTED BY SKETCHBOOK OR ANY THIRD PARTY; OR (c) THAT SKETCHBOOK OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS.  NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.

6.3  Disclaimer Applicable to Professional Users.  To the extent the Sketchbook Materials and/or Services are used by Licensee as professional tools, Licensee acknowledges and accepts the Sketchbook Materials and Services have limited capabilities and are in no way a substitute for Licensee’s professional judgment and/or expertise.  The Sketchbook Materials and Services are intended only to assist Licensee with design, ideation, and/or other creative activities and are not a substitute for Licensee’s own independent design, analysis, simulation, estimation, testing, and/or other professional activities, including those with respect to product stress, safety and utility.  Licensee is responsible for the supervision, management, and control of the Sketchbook Materials and Services and the results of using the Sketchbook Materials and Services.  This responsibility includes, without limitation, the determination of appropriate uses for the Sketchbook Materials and Services and the selection of the Sketchbook Materials, Services and other computer programs and materials to help achieve intended results.  Sketchbook will not be liable in any manner whatsoever for the results obtained through use of the Sketchbook Materials or Services. 

6.4 Disabling Access.  LICENSEE ACKNOWLEDGES AND AGREES THAT INSTALLATION OF AND ACCESS TO SKETCHBOOK MATERIALS MAY BE DISABLED BY THE ACTIVATION, SECURITY, AND TECHNICAL PROTECTION MECHANISMS IF LICENSEE TRIES TO TRANSFER ALL OR A PART OF THE SKETCHBOOK MATERIALS TO ANOTHER COMPUTER, IF LICENSEE TAMPERS WITH THE TECHNICAL PROTECTION MECHANISMS OR DATE-SETTING MECHANISMS ON A COMPUTER OR IN THE SKETCHBOOK MATERIALS, IF LICENSEE USES THE SKETCHBOOK MATERIALS PAST AN APPLICABLE FIXED TERM, OR IF LICENSEE UNDERTAKES CERTAIN OTHER ACTIONS THAT AFFECT THE SECURITY MODE OR UNDER OTHER CIRCUMSTANCES AND THAT, IN ANY SUCH EVENT, LICENSEE’S ACCESS TO LICENSEE’S WORK PRODUCT AND OTHER DATA MAY BE AFFECTED. 

7. Limitations of Liability

7.1 Limitation on Type and Amount of Liability.  IN NO EVENT WILL SKETCHBOOK OR ITS LICENSORS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY).  IN ADDITION, THE LIABILITY OF SKETCHBOOK AND ITS LICENSORS ARISING OUT OF OR RELATING TO ANY SKETCHBOOK MATERIALS OR SERVICES WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH SKETCHBOOK MATERIALS OR SERVICES, RESPECTIVELY. 

7.2 Application of and Basis for Limitations.  THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF SKETCHBOOK OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.  ALSO, LICENSEE AGREES THAT ANY FEES CHARGED BY SKETCHBOOK AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 7 (LIMITATIONS OF LIABILITY) AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.

8. Term and Termination

8.1 Term; Termination or Suspension.  This Agreement shall become effective as of the latest to occur of: (a) acceptance of this Agreement by Licensee, (b) payment by Licensee of any applicable fees, or (c) delivery of the Sketchbook Materials.  Licensee may terminate this Agreement if Sketchbook breaches this Agreement and fails to cure such breach within ten (10) days after written notice of the breach from Licensee to Sketchbook at legal@sketchbook.com.  Sketchbook may terminate this Agreement effective immediately if (i) Licensee fails to make a payment to Sketchbook, or (ii) Licensee (or any person who may have Access to the Sketchbook Materials through Licensee whether or not such person is an Authorized User) breaches this Agreement.  Sketchbook will provide Licensee written notice of the breach and termination if, and only if, Licensee has provided its contact information to Sketchbook.  As an alternative to termination, Sketchbook may suspend Licensee’s license as to the Sketchbook Materials, the provision of Services relating to the Sketchbook Materials, and/or other Sketchbook obligations or Licensee rights under this Agreement.  Sketchbook may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors.  This Agreement will terminate automatically without further notice or action by Sketchbook if Licensee goes into liquidation. 

8.2 Effect of Termination of Agreement or License.  Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate and Licensee must cease all use of the Sketchbook Materials and any Services and Uninstall all copies of the Sketchbook Materials.  At Sketchbook’s request, Licensee agrees to destroy or return to Sketchbook all Sketchbook Materials.  Sketchbook reserves the right to require Licensee to show satisfactory proof that all copies of the Sketchbook Materials have been Uninstalled and, if so requested by Sketchbook, destroyed or returned to Sketchbook.

8.3 Survival.  Any provision of this Agreement that by its general nature and operation imposes or contemplates continuing obligation, including without limitation to the provisions pertaining to 2.4 (Authorized Users), 2.5 (Third-Party Materials), 2.6 (APIs), 3 (License Limitations; Prohibitions), 4 (All Rights Reserved; Feedback), 5 (Privacy; Connectivity; Indemnity), 6 (Limited Warranty and Disclaimers), 7 (Limitations of Liability), 8 (Term and Termination), and 9 (General Provisions) and Exhibit A shall remain in force and effect notwithstanding any termination or expiration of this Agreement.

9. General Provisions

9.1 Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to its conflicts-of-laws rules.  The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement.  In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the Superior Court of the State of California, County of Marin, or the United States District Court for the Northern District of California in San Francisco.  Nothing in the foregoing will prevent Sketchbook from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.

9.2 No Assignment; Insolvency.  Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Sketchbook’s express prior written consent, which may be withheld in Sketchbook's sole and absolute discretion, and any unauthorized purported assignment by Licensee will be void.  In the context of any bankruptcy or similar proceeding, Licensee acknowledges and agrees this Agreement is and shall be treated as an executory contract that may not be assumed and/or assigned without Sketchbook’s express prior written consent, which consent may be withheld in Sketchbook’s sole and absolute discretion whether pursuant to Section 365(c)(1) of Title 11 of the United States Code or any other applicable law respecting the treatment of executory contracts within bankruptcy. Licensee acknowledges and agrees that Sketchbook may assign or sub-contract any of its rights or obligations under this Agreement at any time.

9.3 Exceptions to Prohibitions; Severability. 

9.3.1 Exceptions to Prohibitions. The prohibitions contained in this Agreement will not apply where and to the extent applicable law does not allow such prohibitions to be enforced.  Licensee may have other rights under the laws of the state or country where the Sketchbook Materials are acquired, and this Agreement does not change Licensee’s rights under the laws of such state or country if and to the extent the laws of such state or country do not permit this Agreement to do so.  Licensee will bear the burden of proof to demonstrate that applicable law does not allow (a) the enforcement of such prohibitions; or (b) this Agreement to change particular rights in a state or country (and that Licensee has not exceeded the bounds of the unenforceable prohibitions and unchangeable rights).

9.3.2 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will 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 will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.

9.4 No Waiver.  No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted.  No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.

9.5 Language.  The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.  If Licensee purchased the license for the Sketchbook Materials in Canada, Licensee agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.

9.6 Third Party Beneficiaries.  Sketchbook’s licensors of the Sketchbook Materials, or any part thereof, are intended third party beneficiaries of this Agreement and shall have the right to enforce, each provision with respect to the Sketchbook Materials, or any part thereof.

9.7 Force Majeure.  Sketchbook will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond Sketchbook’s reasonable control.

9.8 U.S. Government Rights.  For U.S. Government procurements, all Sketchbook Materials are deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation,” as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Sketchbook Materials by the U.S. Government shall be solely in accordance with license rights and restrictions described herein.

9.9 Export Control.  Licensee acknowledges and agrees that the Sketchbook Materials and Services (including any data submitted by Licensee in connection with a Service and any Licensee-specific output generated by a Service) are subject to the export control and trade sanctions laws, rules and regulations of the United States and may be subject to the export control and trade sanctions laws, rules and regulations of other countries, including but not limited to countries where Licensee is located or operates. Together, these United States and other country laws, rules, and regulations are referred to as the “Export Control Laws.” Licensee will comply with the Export Control Laws in all respects. Licensee represents, warrants and covenants that neither Licensee nor Licensee’s Personnel (a) are a citizen or resident of, or located within, a nation or region that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, the Crimean peninsula, Cuba, Iran, Sudan, Syria and North Korea), (b) are identified on any applicable government restricted party lists (including, without limitation, the U.S. Treasury Department's Sectoral Sanctions List and List of Specially Designated Nationals and Blocked Persons, the U.S. Department of Commerce’s Denied Party List, Entity List and Unverified List and the U.S. Department of State’s proliferation-related lists), (c) will, unless otherwise authorized under the Export Control Laws, use Sketchbook Materials or Services in connection with any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear activities, chemical/biological weapons, rocket systems or unmanned air vehicles, or (d) will use the Sketchbook Materials or Services to disclose, transfer, download, export, or re-export, directly or indirectly, any Licensee-specific output generated by the Sketchbook Materials or Services, Licensee content, third party content, or any other content or material to any country, entity, or party that is ineligible to receive such items under the Export Control Laws or other laws or regulations to which Licensee may be subject.  Licensee understands that the requirements and restrictions of the Export Control Laws as applicable to Licensee may vary depending on the Sketchbook Materials or Services provided under this Agreement and may change over time.  If Licensee learns that Sketchbook Materials or Services have been provided to any person or entity in violation of the Export Control Laws, Licensee will notify Sketchbook immediately. If Sketchbook determines that a violation of the Export Control Laws should be disclosed to the applicable export control authority, Licensee shall provide such assistance and information as Sketchbook reasonably requests in connection with such disclosure.

9.10 Entire Agreement.  This Agreement and any other terms referenced in this Agreement constitute the entire agreement between the parties (and merge and supersede any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof, except that particular Sketchbook Materials may be subject to additional or different terms associated with such Sketchbook Materials.  The parties acknowledge that, in entering into this Agreement, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement.  

9.11 Changes to Agreement.  Licensee acknowledges and agrees that Sketchbook may add to or change the terms of this Agreement from time to time and it is Licensee’s responsibility to check these terms from time to time to ensure Licensee remains in compliance with all terms of this Agreement.  Sketchbook will use commercially reasonable efforts to provide written notice of changes to Licensee before they are effective; however, its failure to do so shall not relieve Licensee of its responsibility to review periodically the terms of this Agreement as provided in this Section 9.11 (Changes to Agreement).  Any other modifications to this Agreement will be invalid unless agreed to in a writing signed by an authorized representative of Sketchbook.

EXHIBIT A

Definitions

1. “Access” or “Accessible” means, with respect to a computer program or other materials, (a) to use or execute the computer program or other materials or (b) to use or otherwise benefit from the features or functionality of the computer program or other materials.

2. “Computer” means (a) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (b) a software implementation of such a device (or so-called virtual machine).

3. “Customer Information Form” means a form completed by or on behalf of Licensee and submitted to Sketchbook, directly or indirectly, in connection with Licensee’s order, use or interest in Sketchbook Materials or Services.

4. “Install” and “Installation” means, with respect to a computer program or other materials, to copy the program or other materials onto a hard disk or other storage medium.

5. “License Type” means either a Standard License or Trial License as each is described in Section 2.2 (License Types) and in each case subject to all terms of this Agreement.

6. “Personnel” means Licensee’s (a) individual employees and (b) independent contractors who Install and Access the Sketchbook Materials only on and through Computers owned or leased and controlled by Licensee.

7. ”Services” means services (including the results of services) provided or made available by Sketchbook, including, without limitation, support services (including user forums), storage, simulation and testing services, training and other benefits.

8. “Services Terms” means the terms for Services set forth at a location where a user may order or register for, or that is displayed in connection with ordering or registering for, such Services (e.g., a web page), including, without limitation, the fees applicable to the Services.

9. “Supplemental Materials” means materials, other than the Software and related User Documentation, that are distributed or made available by Sketchbook for use with the Software.  Supplemental Materials include, without limitation, (a) content, such as sample drawings and designs, modules for drawings and designs, and representations of elements used in drawings and designs (e.g., buildings, parts of buildings, fixtures, furniture, bridges, roads, characters, backgrounds, settings and animations), (b) background materials, such as building codes and descriptions of building practices, (c) tools for rendering the output of the Software, such as fonts, and (d) Development Materials, application programming interfaces (APIs), and other similar developer materials (including API Information).

10. “Uninstall” means to remove or disable a copy of Sketchbook Materials from a hard drive or other storage medium through any means or otherwise to destroy or make unusable a copy of the Sketchbook Materials.

11. “User Documentation” means the explanatory or instructional materials for the Software or Supplemental Materials (including materials regarding use of the Software or Supplemental Materials), whether in printed or electronic form, that Sketchbook incorporates into the Software or Supplemental Materials (or the packaging for the Software or Supplemental Materials) or otherwise provides to its customers when or after such customers license, acquire or Install the Software or Supplemental Materials.

If you have any questions about this Agreement, please email legal@sketchbook.com. For product support or general questions, please contact support@sketchbook.com

[Sketchbook License and Service Agreement Version 1.1; last updated: Jan 12, 2022]