These terms and conditions govern the sale of products (“Products”), the provision of services and training (“Services”) by TECH-30 and its divisions, subsidiaries and affiliates. These terms and conditions take precedence over Customer’s, subsequent, supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Tech-30’s commencement of performance or delivery shall be deemed or constituted as acceptance of Customer’s, subsequent, supplemental or conflicting terms and conditions. Customer’s execution of the sales quote, issuance of a purchase order, tender of payment, or acceptance of the Products and/or Services from Tech-30, whichever comes first, shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED LEGAL REPRESENTATIVE OF TECH-30.
1. Definitions. As used in this Agreement:
Support Service consists of (a) the provision of Software updates, (b) the provision of telephone support in connection with the Software (c) new versions of software and update patches during the Support Term, (d) Technical software license support, (e) Tech-30 Technical Support, (f) invitations to webinar presentations, (g) access to past webinars on the Tech-30 website, and (h) Tech-30’s newsletter that keeps Customer informed of promotions, product news, and training offerings. Service does not include signature authority.
Support Term shall mean the period of time commencing on the first date of the annual Support cycle as indicated in the Quote and expiring on the Support expiration date indicated on the Quote.
Quote shall mean the applicable Quote provided to Customer, including these terms and conditions.
Subscription Software and Subscription Support refer to annual, automatically renewing contracts for Software and Support which require written agreement to the special Terms and Conditions in the Quote Attachment in the Quotation for Subscription Services form. The Quote Attachment must be approved by the customer and PTC before a Subscription order will be accepted, processed, invoiced, or released.
2. Term of Agreement. The term of this Agreement shall be the Support Term as designated in the Quote. If Customer purchases additional Software licenses during the term of this Agreement, Tech-30 reserves the right to adjust the annual Support term and pro rate the annual Support fees for such add-on Software to be coterminous with the initial Software Support term and billing cycle. Should there be no Support Term, this agreement shall commence on the date of Customer’s signature on the applicable Quote and shall continue for a period of one year.
3. Services Provided. Tech-30 agrees to provide Support Service during the Term of this Agreement to the Customer.
4. License Agreements and Software Purchases. ANY SOFTWARE OR SERVICES PROVIDED TO CUSTOMER BY TECH-30 ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE CLICK WRAP CUSTOMER AGREEMENT, END USER LICENSE AGREEMENT, PTC CUSTOMER AGREEMENT, AND/OR SOFTWARE LICENSE AND SERVICES AGREEMENT) BETWEEN CUSTOMER AND PTC OR OTHER TECH-30 PARTNER (HEREINAFTER, “LICENSE AGREEMENT”). NOTHING HEREIN SHALL BE CONSTRUED OR INTERPRETED TO ALTER, ELIMINATE, OR CHANGE IN ANY MANNER THE RIGHTS AND OBLIGATIONS THEREUNDER.
5. Payment and Taxes. Customer agrees to pay the sum in the Quote. Advertised prices are in U.S. dollars and exclude shipping, handling and taxes unless otherwise noted. All sales are final and all payments hereunder are non-refundable. Any amounts payable pursuant to this quotation are exclusive of all federal, state, local, municipal or other excise, sales, use, property or similar taxes and fees, now in force or enacted in the future and all such taxes and fees shall be paid by the Customer. Customer agrees to indemnify Tech-30 against all claims and that Customer will promptly address and settle tax payment with authorities.
6. Support Renewal Payment Terms. All Support Renewal payments must be paid prior to the commencement of the renewal term. ALL SUMS DUE HEREUNDER MUST BE REMITTED AT LEAST TEN (10) DAYS BEFORE THE RENEWAL DATE STATED IN THE QUOTE. IF ALL SUMS DUE HEREUNDER ARE NOT RECEIVED BY TECH-30 AT LEAST FIVE (5) DAYS BEFORE THE RENEWAL DATE STATED IN THE QUOTE, CUSTOMER WILL BE CHARGED A THREE PERCENT (3%) LATE FEE ON THE PRE-TAX SUBTOTAL OF THE INVOICE.
7. Support Terms. The initial Support Term will commence on the first day of the month following the delivery date of the Software to Customer.Tech-30 expressly disclaims all representations regarding Support and support services fees.
8. Late Support Renewal. Customer must renew its Support agreement prior to the expiration Support Term indicated on the Quote. If Customer has allowed its Support payment to lapse, Customer’s new Support term will be charged from the date of the expiration of the prior Support Term as indicated on the Quote. Additionally, Customer will be subject to a reinstatement fee of twenty-five percent (25%) of the total Support owed for the period between the date of expiration of their prior Support agreement and the effective date of the reinstatement. The start of the new Support agreement will be backdated to the original Support agreements expiration date.
9. Delaying Initial Purchase of Support. If Customer purchases a new license without an initial Support contract, there is a 90 day grace period within which Customer may purchase a new Support contract without incurring any fees or penalties. The new contract will be backdated to the delivery date of the original license. Should Customer purchase an initial Support contract after expiration of the 90 day grace period, Customer will be assessed a twenty-five percent (25%) reinstatement fee on all back Support from the date of the delivery of the original license. No Support is provided during the grace period.
10. Cancellation of Support. Customer can elect not to renew Support for the next Support Term by cancelling the Support contract by submission of written request no less than 60 days prior to the expiration of their Support Term. Tech-30 reserves the right to terminate this Agreement with written notice if Customer fails to comply with any terms of this Agreement or any terms of the License Agreement between Customer and Tech-30, including but not limited to the License Agreement.
11. No Support Reactivation. Should Customer allow their Support contract to lapse and fail to renew their Support contract within a 24 month period past the expiration date, Customer will not be eligible for Support reactivation; only new license purchase will be possible.
12. Customer Responsibilities. Customer shall be solely responsible for all Services performed by Tech-30 personnel for Customer. Customer shall not ask for services beyond the scope of this Agreement. Customer shall accept sole liability for any and all services performed outside the scope of this Agreement. Tech- 30 employees or personnel cannot accept management responsibilities under this Agreement nor shall they have signature authority. Customer agrees to direct the work of Tech-30 personnel at all times and to provide all engineering inputs, assumptions, criteria, constraints or other information necessary to complete assigned project(s). Tech-30 personnel shall not be responsible for any management of any kind including project management nor shall they have authority to approve final products. Customer acknowledges that such work is outside the scope of this Agreement. Customer shall defend, indemnify, and hold Tech-30 harmless from any and all claims, fines, penalties, assessments, liabilities, losses, and expenses, including attorneys’ fees, citation, fines and court costs, and liabilities of every kind arising from work performed under this Agreement.
13. Intellectual Property. Tech-30 shall exclusively own all intellectual property rights to its own deliverables and any intellectual property rights derived therefrom.
14. Preexisting Work. Services articulated herein may require the use of Tech-30 technical data (specifications, formulae, processes and/or computer software) developed at private expense and protected by copyright or other intellectual property rights or considered a trade secret by Tech-30 or third parties (“Preexisting Works”). Such use or reference shall not constitute or imply a grant of a license, a transfer of any title or right, or any other right to use such Preexisting Works. All rights, titles and interest in any Preexisting Works, and in any modifications, enhancements or derivatives thereto utilized in the performance of this Agreement is and shall remain in Tech-30 and its licensors. Preexisting Works provided are intended only for use in relation to the Services provided hereunder. Customer may not, duplicate, redistribute or utilize Preexisting Works whether internally or externally.
All right, title and interest in any data, specifications, systems documentation and code provided by the Customer (“Customer Information”) is and shall remain in the property of the Customer. All right, title and interest in any 3rd party proprietary data or code shall remain with those parties, except that the party disclosing such information, to the extent that it is able to do so, grants the other party a limited license to use such proprietary information under this Agreement.
15. No Warranties. Tech-30 makes no representations or guarantees as to the level of expertise, background and or skills of the Tech-30 employees or contractors utilized in performance of Services hereunder. FURTHERMORE, TECH-30 MAKES NO WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY TECH-30, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. TECH-30 SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY TECH-30 IN FURNISHING SERVICES, TRAINING OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY AND ALL WARRANTIES AND FOR TECH-30’S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE REFUNDING OF THE LESSER OF (A) TOTAL AMOUNT RECEIVED BY TECH-30 FROM CUSTOMER UNDER THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTHS; OR (B) SUM OF CUSTOMER’S SUPPORT AND PREMIUM MAINTENACE SERVICE FEE SET FORTH IN THE QUOTE FOR THE SUPPORT TERM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TECH-30, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, EVEN IF TECH-30 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
TECH-30’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY TECH-30 FROM CUSTOMER UNDER THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTHS. UNDER NO CIRCUMSTANCES SHALL TECH-30 BE LIABLE TO ANY THIRD PARTY HEREUNDER.
Customer acknowledges that Tech-30 shall not under any circumstances be liable or responsible in any manner for any malfunction of or defects in third party software, including, but not limited to third party software sold by Tech-30. Customer’s rights and remedies for all software sold by Tech-30 are outlined in the respective Software License Agreement. Nothing contained herein shall be construed to confer additional rights or remedies on Customer.
16. Indemnification. Customer shall defend, indemnify, and hold Tech-30 harmless from any and all claims, fines, penalties, assessments, liabilities, losses, and expenses, including attorneys’ fees, citation, fines and court costs, and liabilities of every kind arising from any acts or omissions committed by Customer or Customer’s employees and agents. Customer shall be responsible for any and all liabilities of every kind and nature which may be imposed by reason of any asserted or established violation of law, order, rule or regulation by Customer, its employees or agents.
17. Non-Exclusivity. Except as provided herein and except as otherwise expressly agreed to in writing by the parties, the relationship between the parties is non- exclusive. Nothing in this Agreement shall preclude Tech-30 from entering into relationships with any other companies which are similar to the relationship with Customer, nor shall this Agreement preclude Tech-30 from marketing or providing its products or services to any person or entity as the party sees fit, or from independently developing, marketing or selling any products or services that are similar to or compete with the other party’s products or services.
18. Survival. Customer’s obligations under Sections 4, 5, 6, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 shall survive termination of this Agreement.
19. Relationship. In all matters relating to this Agreement, the Parties are acting as independent contractors. No partnership, joint venture or similar relationship is intended or created by this Agreement. Neither party: (a) is the agent of the other, (b) has the authority to bind the other, or (c) shall hold itself out to third parties as having any such authority.
20. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, it shall be deemed severable from, and in no way shall affect the validity or enforceability of, the remaining provisions of this Agreement. If a court/ arbitrator determines that part or all of this Agreement is not valid/enforceable, the Parties agree and request that the Agreement be reformed to make as much of it valid/enforceable as possible.
21. No Assignment. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Tech-30. Any attempted assignment or delegation without written consent or to a competitor of the other party will be void. Notwithstanding the foregoing, Customer acknowledges that Tech-30 may utilize subcontractors in the performance of select duties.
22. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
23. Captions and Headings. Captions and headings used in Agreement are for convenience only, and are not part of this Agreement and shall not be used in construing its meaning.
24. Export. Customer acknowledges that property supplied or developed by either party under the Agreement subject to export controls under the applicable laws and regulations. Customer shall comply with such laws and regulations, and, agrees not to knowingly export, re-export, or transfer property without first obtaining all required governmental authorizations or licenses. Each party agrees to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents.
25. Waiver and Modification. Failure by either party to enforce any provision of this Agreement, will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
26. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to choice of law principles including, but not limited to matters of construction, validity effect or performance.
27. Consent to Jurisdiction and Venue. In the event that any litigation or other legal proceedings shall arise under or in connection with this Agreement, and which are not subject to arbitration hereunder, such litigation or other legal proceeding shall be conducted in the federal, state or local courts located within Orange County, California. Furthermore, the Parties consent to jurisdiction and venue in any federal, state or local court located in Orange County, California, and the Parties hereby waive any defenses or objections thereto, including defenses based on the doctrine of forum non conveniens.
28. Solicitation of Employees. Customer agrees that during the term of the Agreement and for a period of twelve (12) months immediately following the termination of the Agreement for any reason, whether with or without cause, it shall not, either directly or indirectly, solicit, induce, recruit or encourage any of Tech-30s employees to leave their employment with Tech-30. If Customer breaches this Section, Customer shall be liable to Tech-30 for one (1) year of the employee’s billable market rate.
29. Force Majeure. Neither party will be in default of this Agreement or be liable for any delay or failure in performance resulting directly or indirectly from any cause beyond its reasonable control; provided however, that either party who fails because of force majeure to perform its obligations hereunder will, upon the cessation of the force majeure, take all reasonable steps within its power to resume compliance under the Agreement with the least possible delay.
30. Hazardous Materials. The scope of Tech-30s services for this Agreement does not include any responsibility for detection, remediation, accidental release, or services relating to waste, oil, asbestos, lead, or other hazardous materials, as defined by Federal, State, and local laws or regulations.
31. Compliance with Laws. Tech-30 and Customer shall each perform its activities under this Agreement in compliance with all applicable federal, state, provincial and local government requirements, including environmental, licensing and permit laws, rules, regulations, orders and ordinances; provided, however, that each party is responsible for the laws, rules regulations and requirements applicable to its own business and independently interpreting those laws.
32. Entire Agreement. This Agreement along with the License Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter with exception of the License Agreement.
The applicable Tech-30 quotation constitutes an invitation to enter an order for the Product(s) as detailed in the applicable quote. Any modifications to the Product details will require a new quotation. You may accept this offer and execute this order by providing a purchase order as requested in the applicable Sales Quote and signing the applicable quote as an authorized agent of your company. All orders are reviewed by Tech-30 for acceptance. Pricing is in US dollars and does not include sales tax, other applicable taxes, or shipping.
Governing Terms: Customer hereby agrees that the items included in this order are subject to the terms and conditions of the applicable documents posted on http://www.ptc.com/legal-agreements. The applicable documents are the “On Premise License Agreement and Related Documents” for perpetual and subscription software licenses, the “Cloud/SaaS Terms and Related Documents” for Cloud and SaaS Services, and the “Support Documents and Success Plans” for Support Services and Success Plans, etc. Customer acknowledges it has read those documents and hereby agrees to be bound by them. Any licensing basis acronyms in the table above are explained in the PTC Licensing Basis Table document posted at https://www.ptc.com/en/documents/legal-agreements/on-premise-license-agreements, which document also contains licensing basis information and usage restrictions applicable to this order. In the event of a conflict between this Quote and the applicable agreement(s), the terms and conditions of this Quote will prevail. Other than the line items that serve to order the products and services described above, in no event shall any terms of a purchase order or other documents issued by Customer modify or become part of this Agreement.
Renewals: The items ordered in this Quote shall automatically renew at the end of each term without the need for additional paperwork unless Customer, the PTC reseller or PTC notifies each other party in writing of non-renewal prior to the renewal date. For subscriptions that are three months long, the renewal period will be additional three-month periods. For all other subscriptions, the renewal period will be additional one year terms. The fee for each renewal may be increased and, in such event, Customer shall be informed of the fee increase approximately sixty days or more prior to the renewal date. Notwithstanding the foregoing, if this order is designated as a “Premium Plus Conversion” above, any Guided Success Plan(s) that is/are included in this order for no additional charge (as specified in the tables above) will not renew.
Remix: At each anniversary of the subscription commencement date during the term of the subscription, Customer may, by giving PTC written notice at least 60 days prior to such anniversary date, change its subscription license mix by exchanging subscription licenses included in this Quote for other subscription licenses that (a) are currently sold by PTC, and (b) that are from the same Product Grouping, on a dollar-for-dollar basis (based on the then-current list prices of the products being exchanged). Product Groupings mean the following groupings of PTC products: Internet of Things products, Service Lifecycle Management products, PLM/ALM products, Vuforia products, and CAD products (but PTC’s Creo products that are, or that have embedded, technology from Ansys are not included and are not eligible for exchange). Thus, for example, Creo CAD products could be exchanged for other Creo products or for Mathcad products, but not for Windchill PLM products. Such exchange rights are subject to the following conditions: (i) no refunds or credits will be issued as a result of any exchange; (ii) at the time of the proposed exchange, the products to be obtained via exchange is still commercially available from PTC, (iii) no exchange rights will be available for products that were included at no charge as part of any special promotional program or any bundled product item, (iv) exchange is not allowed to or from eLearning products and/or customer success offerings, and (v) if exchange rights are exercised with respect to products for which PTC is providing cloud (or hosting) services for Customer, PTC will not be obligated to provide cloud/hosting services for the new products unless PTC provides cloud/hosting services for such products generally, and the fees for PTCs cloud/hosting services may be increased by PTC depending on PTCs fees for providing cloud/hosting services for such changed products. Subscription licenses cannot be remixed with Cloud/SaaS products.
Upgrades/Amendments: Where the table of Licensed Products above includes items with negative quantities, that signifies that such Licensed Products are being upgraded or removed from Customer’s license entitlement. In such case, Customer may no longer use such Licensed Products.
Overage: Each month, PTC will monitor Customer’s usage, data storage and other parameters, as specified in the PTC Cloud and SaaS Offering Specific Provisions set forth at http://www.ptc.com/legal-agreements. Customer hereby agrees to pay fees for overages. Overage fees will be invoiced and due monthly in arrears.
Forfeiture of Existing Perpetual Licenses: Customer hereby irrevocably relinquishes all rights, licenses and interests in all commercial software products previously purchased by Customer from the software vendor listed below (the “Discontinued Software”) as detailed in the table below, and Customer hereby agrees to de-install and discontinue use of all such Discontinued Software.
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