2. License Limitations/Prohibitions
2.1 Limitations and Exclusions.
2.1.1 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 JT materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement, (b) for Installation of or Access to the Licensed Materials beyond the applicable license term or outside the scope of this Agreement, (c) for Installation of the Licensed Materials on any computer or device other than as stated herein, unless otherwise authorized in writing by JT, (d) to distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide all or any portion of the Licensed Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by JT, (e) to provide or make available any features or functionality of the Licensed Materials to any person or entity (other than to and for Licensee itself for the purpose specified herein), (f) to remove, alter, or obscure any proprietary notices, labels, or marks in the Licensed Materials, (g) to decompile, disassemble or otherwise reverse engineer the Licensed Materials, or (h) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Licensed Materials for any purpose.

 

2.1.2 Territory. Except as otherwise authorized in writing by JT, the licenses granted in this Agreement are granted only for the United States of America. Nothing in this Agreement permits Licensee (including, without limitation, Licensee’s Personnel, if any) to Install or Access the Licensed Materials outside the U.S.

 

2.1.3 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 2.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any Installation of or Access to the Licensed Materials outside of the scope of this Agreement or otherwise not in accordance with this Agreement, constitute or result in infringement of JT’s intellectual property rights as well as a breach of this Agreement. Licensee will notify JT promptly of any such Unauthorized Uses or other unauthorized Installation or Access​​

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2.2 Circumvention.

 

2.2.1 Licensee may not (i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by JT in connection with the Licensed Materials, or (ii) Install or Access the Licensed Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by JT. 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 JT for managing, monitoring, or controlling Installation of or Access to Licensed Materials.

 

2.2.2 Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by JT, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the JT Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, Installation or Access to the Excluded Materials.

 

2.3 Exceptions to Prohibitions. The prohibitions contained in this Agreement, including this Section 2 (License Limitations/Prohibitions), will not apply to the extent applicable law does not allow such prohibitions to be enforced. 
 

3. All Rights Reserved
JT retains title to and ownership of, and all other rights with respect to, the Licensed 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 Licensed Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Licensed Materials are licensed, not sold, and that rights to Install and Access the Licensed Materials are acquired only under the license from JT. 

 

4. No Warranty; Disclaimers
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JT 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 LICENSED MATERIALS, AND LICENSEE AGREES THAT LICENSEE ACCEPTS THE LICENSED MATERIALS “AS IS.” ANY STATEMENTS OR REPRESENTATIONS ABOUT THE LICENSED MATERIALS AND THEIR FEATURES OR FUNCTIONALITY OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATIONAL PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, JT DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE; (b) THAT ERRORS WILL BE CORRECTED BY JT; OR (c) THAT JT 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 THAT MAY BE IMPLIED BY LAW AND THAT CANNOT BE EXCLUDED, RESTRICTED, OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION.

 

5. Warnings
5.1 Functionality Limitations. The Licensed Materials are commercial professional tools intended to be used by trained professionals only. Particularly in the case of commercial professional use, the Licensed Materials are not a substitute for Licensee’s professional judgment or independent testing. The Licensed Materials are intended only to assist Licensee with its design, analysis, simulation, estimation, testing, and/or other activities and are not a substitute for Licensee’s own independent design, analysis, simulation, estimation, testing, and/or other activities, including those with respect to product stress, safety, and utility. Due to the large variety of potential applications for the Licensed Materials, the Licensed Materials have not been tested in all situations under which they may be used. JT will not be liable in any manner whatsoever for the results obtained through use of the Licensed Materials. Persons using the Licensed Materials are responsible for the supervision, management, and control of the Licensed Materials and the results of using the Licensed Materials. This responsibility includes, without limitation, the determination of appropriate uses for the Licensed Materials and the selection of the Licensed Materials to help achieve intended results. Persons using the Licensed Materials are also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Licensed Materials, including, without limitation, all items designed with the assistance of the Licensed Materials.

 

5.2 Activation Codes and Security.

 

5.2.1 Activation Code Required for Installation/Access and Continued Use. Installation of and Access to the Licensed Materials, and the continued use thereof from time to time, may require activation codes issued by JT. Registration may be required before an activation code is issued by JT. Licensee will provide JT with any information required for such registration and agrees that any information provided to JT will be accurate and current. Licensee will also maintain and update Licensee’s registration information on an ongoing basis. Licensee acknowledges and agrees that JT may use such information in accordance with its privacy policy (as described or referenced on its website).

 

5.2.2 Disabling Access. LICENSEE ACKNOWLEDGES AND AGREES THAT INSTALLATION OF AND ACCESS TO LICENSED MATERIALS MAY BE DISABLED BY THE ACTIVATION, SECURITY, AND TECHNICAL PROTECTION MECHANISMS IF LICENSEE TAKE ANY ACTION CONTRARY TO THE TERMS OF THIS AGREEMENT AND THE LICENSE, 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. 

 

6. Limitations of Liability

 

6.1 Limitation on Type and Amount of Liability. IN NO EVENT WILL JT 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 JT ARISING OUT OF OR RELATING TO ANY LICENSED MATERIALS WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH LICENSED MATERIALS.

 

6.2 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 (TO PROPERTY, PERSONAL INJURY, OR DEATH) 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 AUTODESK HAS 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 THE LICENSE FEES AND OTHER FEES CHARGED BY JT AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 6 (LIMITATIONS OF LIABILITY) AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 6 (LIMITATIONS OF LIABILITY) ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.​

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7. Refunds. Because the Licensed Materials are digital files, no refunds of any amounts will be made. It is the responsibility of Licensee to read and understand the full item listing before purchasing. Contact JT user support (see the website for details) prior to purchasing to answer any questions. 

 

8. User Responsibilities and Indemnification. JT provides digital CAD files only. JT provides no advice or services for constructing or assembling physical items should Licensee elect to do so based upon the Licensed Materials. JT recommends that Licensee consult with, or engage a professional experienced in, such assembly or construction. Any assembly or construction is the sole responsibility of Licensee, and Licensee must do so safely and in accordance with applicable law, industry standards, and best practices, including without limitation standards or guidelines of the Normen Europäischer Modellbahnen (NEM) and National Model Railroad Association (NMRA), as applicable, and does so at its own risk. JT assumes no liability or responsibility of any kind for Licensee’s assembly or construction.  Licensee is solely responsible to ensure that the operation of any item it assembles or constructs complies with federal, state, and local law, ordinances, and policies. Licensee understands and acknowledges that assembling constructing, using (including riding upon) 1/8 scale model railways, especially live steam (collectively, “Activities”), entail UNKNOWN AND UNANTICIPATED RISKS that could result in PHYSICAL OR EMOTIONAL INJURY, DISEASE, STRAINS, TORN MUSCLES/LIGAMENTS, CUTS, ABRASIONS, CONTUSIONS, CRUSHING, EJECTION, HEAD, NECK AND SPINAL INJURIES, EYE DAMAGE, FRACTURES, SHOCK, TRAUMA, PARTIAL OR TOTAL PARALYSIS, DEATH, AND/OR DAMAGE TO LICENSEE, TO PROPERTY, OR TO THIRD PARTIES. Licensee agrees and promises for itself and on behalf of all persons claiming by, through or under Licensee, including, without limitation, parents, children, successors, heirs, assigns, guarantors, personal representatives, and estate (collectively, the “Licensee Parties”), to ACCEPT AND ASSUME ALL RISKS existing in the Activities should Licensee elect to undertake them based upon any Licensed Materials. On behalf of License and the Licensee Parties, Licensee hereby voluntarily releases, forever discharges, and agrees to fully indemnify (including attorney’s fees, expenses and costs, though appeal), defend and hold JT harmless from and against any and all claims, costs (including attorney’s fees), expenses, liabilities, demands, or causes of action, in any way connected with the Licensed Materials and Licensee’s participation in any Activities, including, without limitation, any such claims that allege NEGLIGENT acts or omissions of JT. Licensee agrees that the release, waiver, and indemnity herein shall apply to any damage or injury claimed by a third party arising from, or related in any way to, the Licensed Materials and any Activities.

 

9. Term and Termination
9.1 Term; Termination or Suspension. Each license under this Agreement, with respect to each specific set of Licensed Materials covered by this Agreement, will become effective as of the latest to occur of: (a) this Agreement becoming effective, (b) payment by Licensee of the applicable fees, excluding licenses (such as evaluation licenses) where no fees are required, and (d) delivery of the specific Licensed Materials. Each of JT or Licensee may terminate this Agreement and Licensee’s license as to Licensed Materials if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach; however, if Licensee is in breach of Section 1 (License) or Section 2 (License Limitations/Prohibitions), JT may terminate this Agreement and Licensee’s license immediately upon written notice. In addition, JT may, as an alternative to termination, suspend Licensee’s license and/or other JT obligations or Licensee rights under this Agreement (or under other terms, if any, relating to materials associated with the Licensed Materials), if Licensee fails to make a payment to JT or otherwise fails to comply with the provisions of this Agreement or other terms relating to any such license. Licensee acknowledges and agrees that JT may assign or sub-contract any of its rights or obligations under this Agreement.

 

9.2 Effect of Termination of Agreement or License. Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate. Upon termination or expiration of any license granted to Licensee, Licensee must cease all use of Licensed Materials to which such license applies and permanently Uninstall all copies of the Licensed Materials. At JT’s request, Licensee agrees to destroy or return to JT all Licensed Materials. JT reserves the right to require Licensee to show satisfactory proof that all copies of the JT Materials have been Uninstalled and, if so requested by JT, destroyed or returned to JT or the Reseller from which they were acquired. 

9.3 Survival. The terms of this Agreement that would naturally survive termination shall survive termination or expiration of this Agreement. 

 

10. General Provisions

 

10.1 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 JT’s prior written consent, which may be withheld in JT’s sole and absolute discretion, and any purported assignment by Licensee is void. In the context of any bankruptcy or similar proceeding, this Agreement is and will be treated as an executory contract under 11 U.S.C. § 365(c)(1) and may not be assigned without JT’s prior written consent, which may be withheld in JT’s sole and absolute discretion.

 

10.2 Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx, or DHL), except that Licensee may not provide notice to JT of a JT breach or provide notice of termination of this Agreement by electronic mail.

 

10.3 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the state of Utah without reference to conflicts-of-laws rules. Application of the United Nations Convention of Contracts for the International Sale of Goods is hereby expressly excluded. Each party agrees that any claim, action, or dispute arising under or relating to this Agreement or Activities (defined below) will be brought exclusively in the state and federal courts located in Summit County, Utah, to whose exclusive jurisdiction the parties consent and waive any objection to venue. The parties each WAIVE THEIR JURY TRIAL RIGHT with respect to any such claim. Nothing in the foregoing will prevent JT from bringing an action for infringement of intellectual property rights in any jurisdiction where such infringement is alleged to occur.

 

10.4 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.

 

10.5 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.

 

10.6 Construction. Ambiguities in this Agreement will not be construed against the drafter.

 

10.7 Force Majeure. JT 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 JT’s reasonable control.

 

10.8 Entire Agreement. This Agreement and any other terms referenced in this Agreement constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising, or understandings) with respect to the subject matter hereof. 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. Licensee acknowledges and agrees that JT may add to or change the license terms from time to time, provided that JT will provide written notice of the additions or changes (and may permit Licensee to terminate) before the additions or changes are effective as to Licensee. Terms stipulated by Licensee in any communication by Licensee that purport to vary this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of JT. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of JT.

 

Exhibit A Definitions

“Access” or “Accessible” means, with respect to a digital file, (a) to use or execute the file or (b) to use or otherwise benefit from the features or functionality of the file.
“Agreement” means this License Agreement, including all exhibits and schedules thereto, as the License Agreement may be amended from time to time in accordance with the terms thereof.
“Install” and “Installation” means, with respect to a digital file, to copy the program or other materials onto a hard disk or other storage medium.
“Licensed Materials” means any digital or electronic file (a) downloaded by clicking on the “I accept” button or other button or mechanism associated with this Agreement or by otherwise indicating assent to this Agreement, (b) delivered prepackaged with this Agreement, or (c) otherwise accompanied by this Agreement, provided that Licensee has paid (and continues to pay) the applicable fees. Licensed Materials includes, without limitation, any error corrections, patches, service packs, updates and upgrades to, and new versions of, the Licensed Materials that JT provides or makes available to Licensee under Licensee’s then-current license. 
“Licensee” means (a) the company or other legal entity on behalf of which Licensed Materials are acquired, if the Licensed Materials are acquired on behalf of such an entity (e.g., by an employee, independent contractor, or other authorized representative), or (b) if there is no such entity, the individual who accepts this Agreement (e.g., by selecting the “I accept” button or other button or mechanism associated with this Agreement or otherwise indicating assent to this Agreement, or by Installing, downloading, accessing, or otherwise copying or using all or any portion of the Licensed Materials). For clarification, “Licensee” refers only to a single, specifically identified legal entity or individual, and does not include any subsidiary or affiliate of any such legal entity or individual or any other related person.
“Previous Versions” means, as to any then-current release of Licensed Materials, a prior release of the Licensed Materials as to which such then-current release is a successor or substitute (as determined by JT).