IMPORTANT - PLEASE READ CAREFULLY
This LICENSE BACKUP SUBSCRIPTION AGREEMENT ("Agreement") constitutes a valid and binding agreement between GEMINI (together with its affiliates, successors and assigns "GEMINI" or "GCS" or "Licensor") and you ("Licensee", "End-User", "Client", "Customer", "you," or "your") for the use of the Gemini CAD Systems Software products. You must read this "LICENSE BACKUP SUBSCRIPTION AGREEMENT" and AGREE to its conditions in order to install and use the Gemini CAD Systems Software.
This LICENSE BACKUP SUBSCRIPTION AGREEMENT shall be considered as an extension of and shall be applied in concordance with the End-User License Agreement (EULA), which is governing the use of Gemini software by the Licensee.
BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE COPYING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. A CONTRACT WILL THEN FORMED BETWEEN GEMINI AND EITHER YOU PERSONALLY, IF YOU ACQUIRE THE SOFTWARE FOR YOURSELF, OR THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE AQUIRING THE SOFTWARE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE GEMINI CAD SYSTEMS SOFTWARE.
INSTALLATION, DOWNLOADING, ACCESS OR OTHERWISE COPYING OR USE OF THIS SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION OR MATERIALS EXCEPT AS PERMITED BY THIS AGREEMENT CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH SOFTWARE, DOCUMENTATION AND MATERIALS. IF YOU INSTALL, DOWNLOAD, ACCESS OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THIS SOFTWARE WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION FROM GEMINI, OR YOU FAIL TO COMPLY WITH THIS AGREEMENT, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. YOU MAY BE LIABLE TO GEMINI AND ITS LICENSORS FOR DAMAGES, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES.
SOFTWARE OBTAINED FROM THIRD PARTIES THAT HAS NOT BEEN AUTHORISED OR ALLOWED BY GEMINI, DIRECTLY OR INDIRECTLY TO SUPPLY SOFTWARE, IS LIKELY TO HAVE BEEN MADE AVAILABLE IN VIOLATION OF GEMINI'S RIGHTS. IN SUCH AN EVENT, GEMINI IS NOT OBLIGATED TO ISSUE AN ACTIVATION CODE OR OTHERWISE PERMIT YOU TO INSTALL OR USE THE SOFTWARE.
This agreement applies to software licenses purchased by Licensee from Gemini, as described by its License Certificate(s) and according to End-User License Agreement.
The use of each licensed software application on a desktop computer is conditioned by a security USD device called DONGLE.
The USB security device (USB DONGLE) is a physical device provided by Gemini CAD Systems which performs the following actions:
It stores a list of licensed Gemini CAD Software products, along with their parameters (add-ons, a number of parallel processing CPU cores, version limit date, start and finish date of the licensing period, the start and finish date of the current activation period).
It grants or denies the use of each Gemini CAD Systems Software application based on stored information; for this purpose, the USB DONGLE communicates with the Gemini Shield desktop application, which must be installed and run on the computer.
It communicates via the Gemini Shield application with the Gemini CAD Systems platform which manages End-Users and Licenses, in order to retrieve updated license information and to report usage data to confirm compliance of the software usage profile with this agreement.
It operates its internal clock to measure time, calendar and time of software usage and runs verifications to prevent tampering with computer's clock and calendar when the activation is time-limited.
It stores and runs parts of the Gemini CAD Systems software which are critical to each application and without which the software cannot operate, and it exchanges data with Gemini CAD Systems Software running in the computer's RAM.
At each moment, the inventory of all licenses purchased by Licensee from Gemini is visible for Licensee on MyCAD platform.
If Licensee wants to use a license, he must transfer it from MyCAD stock to a DONGLE. At that moment, the license is stored in the DONGLE.
If the DONGLE which stores one or several licenses is broken, damaged or irresponsive Licensee can present this dongle to Gemini and Gemini will replace it (under warranty of for a fee representing the value of the dongle as electronic device) and will bring back to the stock on MyCAD platform all licenses stored in the damaged DONGLE.
This Agreement applies only to the case when a DONGLE which stores one or several licenses is MISSING, and the Licensee cannot present it to Gemini for replacement. In this case, Gemini cannot bring the licenses back to MyCAD stock and the missing dongle is still incorporating the licenses, therefore the licenses will no longer be available to be used by Licensee.
This License Backup Subscription Agreement entitles the Licensee, in case a dongle storing one or several licenses purchased from Gemini is missing, to receive back to its MyCAD stock all licenses stored in the missing DONGLE, and to be able to transfer these licenses to another replacement dongle.
License Backup is not contracted in association with nominal licenses but it is contracted in association with holding containers (DONGLES). All licenses stored at a certain moment in a dongle which is subject to this backup agreement are guaranteed for replacement if the dongle is missing.
License backup works based on a system of period verification of dongle status on Gemini servers. When a dongle is subject to a License Backup Agreement, Gemini will set that dongle in "BACKUP MODE", by which dongle will start to perform a monthly online check with Gemini servers to confirm if it is not declared as "missing". This monthly check is made silent without requiring any manual intervention from the user. In case the dongle cannot contact Gemini servers for a period of 30 days or in case the dongle is declared MISSING it will stop working. This operation is described in Article 5.5.A) in the End-User License Agreement
PRICE, PAYMENT AND INVOICING
Price of license backup subscription is based on the number of dongles in which Licensee is storing its licenses. The price for one dongle is 120 Euro / year and the total price is obtained by multiplying the unit price with the number of dongles holding backed-up licenses.
Gemini CAD Systems bills its customers for recurrent subscriptions and services through an online account using its mycad.geminicad.com platform. Accepted payment methods are credit cards issues by MasterCard and Visa. User agrees to pay all applicable subscription and services fees using this online account. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and User is solely responsible for the payment of any such taxes that may be imposed on your use of our products and services. Gemini CAD Systems may correct any billing errors or mistakes that it makes even if it has already requested or received payment through its billing partners or directly. Gemini CAD Systems reserves the right to change its prices for certain products and services - and to institute new charges at any time - upon notice to you, which may be sent by email or posted on the mycad.geminicad.com platform. User agrees to maintain current, complete and accurate information for User's billing account. In addition, User authorizes Gemini CAD Systems and its payment processing partners to obtain updated or replacement expiration dates and card numbers for User's credit or debit card as provided by User's credit or debit card issuer. All fees are final and non-refundable (including in the event any features or functions of any service that User has subscribed to are changed, modified, diminished or removed). User shall be responsible for any applicable foreign transaction fees charged by User's bank.
The License Backup Subscription is invoiced when the related licenses are purchased and paid. Invoice are sent by email to Licensee and are available for download on https://mycad.geminicad.com
AGREEMENT PERIOD, TERMINATION and RENEWAL
The period of this agreement is 1 year. The agreement period runs from the date the subscription is contracted and paid until the same calendar day in the following year.
Backup becomes valid and operational ONLY AFTER THE DONGLE PASSED THE INITIAL CHECKING AND SETTING PROCEDURE, according to chapter 4 in this agreement. Any claim referring to a missing dongle made before that dongle was checked and validated by Gemini will not be solved by Gemini, even if it was made after the backup was contracted and paid.
User's subscription to the products and services offered by Gemini CAD Systems will continue indefinitely until cancelled by User (via the cancellation mechanisms provided on the mycad.geminicad.com on My Subscriptions page). Certain subscriptions have a minimum commitment term, clearly visible for the User when the subscription is started. The User is able to effectively cancel the automatic renewal only at the end of the agreed commitment period. The cancellation option can be expressed prior to this moment but will only be applied at the end of the period. User agrees that Gemini CAD Systems, directly or through its billing partners will continue to charge the saved credit card through the entire commitment period.
After User's initial subscription period, and again after any subsequent subscription period, User's subscription will automatically continue for an additional equivalent period, at the price User agreed to when subscribing. User agrees that User's account will be subject to this automatic renewal feature. If User cancels a subscription, User may use such subscription until the end of then-current subscription term and the subscription will not be renewed thereafter. However, User will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
By subscribing, User authorizes Gemini CAD Systems and its billing partners to charge User's credit card, debit card or other payment method at such time and again at the beginning of any subsequent subscription period, including any sales or similar taxes imposed on User's subscription payments. Upon the renewal of your subscription, if Gemini CAD Systems does not receive payment, User agrees that Gemini CAD Systems may either terminate or suspend User's subscription and continue to attempt to charge User's payment method provider until payment is received (upon receipt of payment, User's account will be activated and for purposes of automatic renewal, User's new subscription commitment period will begin as of the day payment was received). Brilliant may also seek payment directly from User. Charges may be payable in advance, in arrears, per usage, or as otherwise specified by Gemini CAD Systems when User initially subscribes to products and services.
LICENSE BACKUP ACTIVATION, SECURITY
After contracting a license backup subscription and including one or several dongles into this subscription, Licensee must prove to Gemini that at the moment this service was contracted it has the specified DONGLE in possession. Prior to this step, any claim referring to a missing dongle will not be considered valid, even if it was made after contracting and paying the backup subscription.
To prove the DONGLE(s) are not missing, Licensee will be required to plug each dongle into a computer which has internet access and Gemini Shield application installed and to follow the indicated steps.
Upon successful termination of the process, the dongles are validated as "not missing", are set by Gemini to be in "backup mode" and are eligible for claims if missing.
As described at article 1.3, the License Backup requires Gemini Shield application. Gemini Shield is a desktop software application provided by Gemini CAD Systems which must be installed and run prior to execution of any Gemini CAD Systems Software application and which performs the following actions:
It communicates with the Gemini CAD Systems platform for End-User and Licenses management mycad.geminicad.com to retrieve updated information about licenses, organization and end-users, and transmits this information to be stored into the USB DONGLE.
It performs user authentication by login to the Gemini Identity platform which applies the rules and restrictions defined by organization's policies for that user in terms of data access rights, level of competence and activity logging.
It communicates with the Gemini CAD Systems Software applications to pass on information about license, organization, license conditions and limitations, due payments, news and updates as well as communications by Gemini CAD Systems, which are used by applications to be displayed on start splash.
Activation of the USB DONGLE, user authentication, license and product information updates require permanent internet connection between the Gemini Shield and the Gemini End-User License Management platform on mycad.geminicad.com. If such a connection is not available on the computer where Gemini CAD Systems Software is installed (because of company policies, firewall, lack of internet connection, etc.) the USB DONGLE might not renew its current activation, applications might not operate properly, user authentication and rights management might not be functional or up to date with the policies of the organization. Gemini CAD Systems is not responsible for any consequences resulting from above mentioned situation.
RIGHTS UPON TERMINATION
After the termination of the License Backup Agreement the dongles will return to NO BACKUP MODE. All licenses stored in such dongle are not guaranteed for replacement and don't benefit from backup protection.
Any claim for a missing dongle made by Licensee after the expiration of this agreement are not considered valid even if they refer to a dongle missing while the contract was active.
The Licensor can transfer or assign all rights or obligations under this License Backup Subscription Agreement to another entity in the Licensor's Group without the prior consent of the Licensee.
The Licensee will not sell, distribute, rent, lend or transfer/assign the updates or the right to receive the updates to any party without the prior written consent of the Licensor.
If any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
NOTICES BETWEEN THE PARTIES
Any notice to be given by either party to the other, may be sent as recorded delivery at the address stated in this License Backup Agreement, or such other address given from time to time, in case the address of the Licensor or Licensee has changed.
LAW AND VENUE
The rights and obligations of this License Backup Subscription Agreement shall be constructed in accordance with the laws of Romania. Any dispute, controversy or claim arising out of or in connection with the License Backup Subscription Agreement shall be finally settled in accordance with Romanian Law with The Court of IASI, ROMANIA, as venue.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE Gemini CAD Systems Software, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO GEMINI THE RIGHTS SET FORTH HEREIN.