Software Update Subscription Agreement


IMPORTANT - PLEASE READ CAREFULLY

This SOFTWARE UPDATE AGREEMENT ("Agreement") constitutes a valid and binding agreement between GEMINI (together with its affiliates, successors and assigns of "GEMINI" or "GCS" or "Licensor") and you ("Licensee", "End-User", "you," or "your") for the use of the Gemini CAD Systems Software products. You must read this "SOFTWARE UPDATE AGREEMENT" and AGREE to its conditions in order to install and use the Gemini CAD Systems Software.
This SOFTWARE UPDATE 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 BE 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.

UPDATE SUBSCRIPTION

This Update Subscription Agreement entitles the Licensee to replace and utilize the software applications licensed by Gemini by its License Certificate to the latest version of the Software, including service packs and hot fixes made available by Gemini on its website www.geminicad.com.

This Update Subscription Agreement applies only to the Licensee which must have purchased the Software to be maintained under this agreement; must comply with the valid End-user license agreement; and must at all times comply with this Update Subscription Agreement in order to utilize any released version including hot fixes and service packs (in the following referred as "updates").

The Licensee is obliged to follow all instructions given by the Licensor regarding installation and use of the updates. Furthermore, it is the responsibility of the Licensee to ensure that the updates, the functions of the updates, the effect of the updates and the documentation fulfill the Licensee's requirements and the Licensor hereby renounce all liability in relation to this.

PRICE, PAYMENT AND INVOICING

For 1 year upfront payment, the price for the Update Subscription is 10% per year of the total value of licenses used by Licensee, calculated based on the license value in the territory where the licensee is registered and is using the license multiplied by the quantity of each license used by the Licensee.

For monthly subscription payment the price for the Update Subscription is 1% per month (resulting a total 12% per year) of the total value of licenses used by Licensee, calculated based on the license value in the territory where the licensee is registered and is using the license multiplied by the quantity of each license used by the Licensee. Monthly subscription is available only in selected territories and it is subject to severe limitations in case of termination because of Licensee before the completion of the first year, as described at article 4.3 in this agreement

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.

Only for selected territories, Upfront Payments for one year exceeding the value of 1000 Euro, the Licensee can opt for bank transfer payment. In this case, Gemini will issue a proforma invoice based on which the Licensee will make the bank payment in Gemini's account. For bank payments, Gemini will charge a processing fee which will be displayed by MyCAD platform during the contracting and payment procedure. The Software Update Subscription Agreement will become valid only after the confirmation of payment by Gemini, which will be visible by Licensee on MyCAD platform.

The price is calculated and presented to the Licensee by MyCAD web platform where this update subscription is contracted from Gemini

The Update Subscription is invoiced when the related licenses are purchased and paid. Invoice are sent by email to Licensee and are available for download on 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.

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). Gemini CAD Systems 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.

RIGHTS UPON TERMINATION

After the termination of the Update Subscription Agreement the Licensee is not entitled to utilize, implement, download or in any other way use any updates released AFTER the Update Subscription Agreement has been terminated.

If the Licensee requires utilizing any updates after the termination of the Update Subscription Agreement, the Licensee must sign a new Update Subscription Agreement from the date of termination of the previous Update Subscription Agreement.

In case Licensee opted for Monthly payments and this agreement is terminated before the completion of the first subscription year (12 months) because of Licensee by impossibility to operate the recurring monthly payments by any reasons (including but not limited to: insufficient funds, invalid card, etc.), Licensee will lose all rights to use the new versions of software as described at chapter 1 . Licensee will roll-back to the right of using, the previous versions according to its License Certificate and, if applicable, the latest Software Update Subscription Agreement which was completed to the minimal one-year period.

LIMITED WARRANTY

The Licensor does not guarantee that the Licensee can fully utilize all service packs and hot fixes and it does not warrant or guarantee any of the following:

Retrospective compatibility between updates and new versions/releases and their functionality, or between linguistic or country specific functionality.

The Licensee's full functionality of the updates and new versions/releases.

That updates and new versions/releases will not conflict with any changed functionality/other modifications conducted in the Licensee's software, i.e. that they will be fully functional after the installation of the updates.

The Licensor shall not be liable to the Licensee for any loss or damage whatsoever or however caused arising directly or indirectly in connection with this License Agreement, the Software, its use or otherwise.

The Licensor expressly excludes liability for any indirect, special, incidental or consequential loss or damage that may arise in respect of the Software, its use or in respect of equipment property, or for loss of profit, business revenue, goodwill or anticipated savings.

In the event that any exclusion contained in this Update Agreement shall be held to be invalid for any reason, and the Licensor becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the actual annual Update fee paid by the Licensee.

In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the Software, and the Licensee notifies the Licensor (in writing) of the error within 30 (thirty) days from delivery, the Licensor shall use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not comply. These are the sole remedies and are PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Licensor or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.

It is a precondition for any liability by the Licensor for errors in the Software or updates that the error can be recreated in a test environment by the Licensor.

WHERE ANY LIABILITY HAS BEEN LIMITED IN THIS LICENSE AGREEMENT, THE LIMITATIONS SHALL HAVE MAXIMUM EFFECT PERMITTED BY APPLICABLE LAW.

ASSIGNMENT

The Licensor can transfer or assign all rights or obligations under this Update 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.

SEVERABILITY

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 Update 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 Update 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 Update 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.