STK CLOUD - TERMS OF SERVICE

You will be required to agree to the Terms of Service the first time you launch STK Cloud and any time the terms change.

Last modified: June 23, 2020

Provided by Analytical Graphics Inc. (“AGI”), 220 Valley Creek Blvd., Exton, PA, 19341.

THESE TERMS OF SERVICE, TOGETHER WITH ANY APPLICABLE ORDER DOCUMENT(S) AND SUPPLEMENTAL TERMS (COLLECTIVELY THE “TERMS” OR “AGREEMENT”), GOVERN YOUR USE AND ACCESS TO THE SERVICE IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR THE TRIAL VERSION OF THE SERVICE AND ARE A LEGAL AGREEMENT BETWEEN YOU AND AGI.

By clicking the checkbox to indicate your acceptance, and by using the Service, you acknowledge that you have reviewed these Terms and agree to be bound by them. If you are agreeing to these Terms as a representative of an entity, you represent and warrant that you are authorized to enter into the Agreement on behalf of that entity. If you do not agree with all of these Terms, do not access or otherwise use the Service.

AGI may make changes to the Service at any time and reserves the right to revise these Terms from time to time. You will be required to accept the new Terms upon next sign-in. Your continued use of the Service after such changes have been posted will signify your assent to and acceptance of the revised Terms. If you do not agree with these Terms or any of their revisions, you must stop using the Service.

Definitions

“Content” means any data or files that are uploaded to the Service by you, or that you create using the Service. This includes, but is not limited to STK scenarios, objects, reports, graphs, models, blog posts, reviews, quotes, messages, and emails.

“Documentation” means the printed, paper, electronic or online user instructions and help files made available by AGI for use with the Service, as may be updated from time to time by AGI.

“Service” means the STK Cloud Software as a Service, which includes the virtual environment and the applications provided within it, including, but not limited to the Systems Tool Kit (STK) family of products. This Service allows users to access STK in their browser without having to download the product or install a license file.

“Subscription Period” means the period during which you have agreed to subscribe to the Service.

“Supplemental Terms” means additional terms which are incorporated into these Terms and apply to your use of the Service:

“Subscription Plan” means the plan you have chosen to subscribe to, which is billed monthly or annually.

“Upgrade” means modifying the Subscription Plan to which you subscribe while that subscription remains active to a plan of higher cost.

“you” or “your” means the party entering into this Agreement with Analytical Graphics, Inc. and includes the person, entity, or organization who is accessing or using the Services. The person entering into the Agreement represents and warrants that he/she is authorized to enter into the Agreement on behalf of the party, entity, or organization using the Service.

Using our Service

Subject to your compliance with the Terms, AGI grants to you, during your Subscription Period, a limited, non-exclusive, revocable, non-transferable, license to use and access the Service, in accordance with the Documentation, solely for your internal business purposes, and not for the benefit of any other person or entity.

Third Party Products and Services

This Service may be linked to other web services that are not AGI Services, or may contain products or services that are not AGI Services, including, without limitation, web services that provide virtualization of the Service (collectively, “Third-Party Services”). Certain areas of the Service may allow you to interact with such Third-Party Services. You acknowledge and agree that the Third-Party Services may have different privacy policies and terms and conditions, and/or user guides and business practices than AGI, and you further acknowledge and agree that your use of such Third-Party Services is governed by the respective Third-Party Service privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users’ guides and privacy policies of any of Third-Party Services. AGI does not verify, make any representations or take responsibility for such Third-Party Services, including, without limitation, the truthfulness, accuracy, quality or completeness of the services and/or any other activities conducted on or through such Third-Party Services. YOU AGREE THAT AGI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SERVICES OR INFORMATION, PROVIDED BY THE THIRD-PARTY SERVICES OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE THIRD PARTY. Any reference on the Service to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply AGI 's endorsement or recommendation.

User Guidelines & Unauthorized Uses

AGI has established a few ground rules that you must follow when using the Service.

You may not or allow others to attempt any of the following actions. If you, or others allowed by you, attempt the following actions, your account may be immediately temporarily suspended or terminated with or without notice:

Trial Version

You have the option of trying the Service at no cost and for a limited duration. The duration of the trial period will be specified during sign-up and is intended to allow new and certain former customers to try the Service. The trial is strictly limited to noncommercial use and shall not be used to derive any financial or strategic business gain.

Free trial eligibility is determined by AGI at its sole discretion and we may limit eligibility or duration to prevent trial version abuse. AGI reserves the right to revoke the trial version and place your account on hold without notice.

Content

Rights You Grant to AGI. In order to provide you, operate, and improve the Service, you hereby grant to AGI a limited non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to host, display, publish, transmit, reproduce, distribute, process, adapt, modify, or prepare derivative works from your Content, or any portion thereof, including to publicly perform and display your blog posts, reviews, quotes, messages or emails, in any form, medium, or distribution method now known or hereafter existing, known or developed. AGI may modify or adapt your Content in order to transmit, display, or distribute them over computer networks and in various media and/or make changes, modify, or adapt the Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services, or media. Under this license, AGI may additionally create Aggregated Statistics (described below) from the Content. You represent and warrant that you have all rights necessary to grant these rights to AGI.

Content Infringing Intellectual Property. AGI reserves the right to remove or disable all Content that appear to constitute infringement of a third party’s copyrights, as long as AGI receives a properly drafted notice. A copy of the Digital Millennium Copyright Act Takedown Notice requirements, the procedure, and an electronic form is published at AGI’s website at www.agi.com/dmca.

Feedback. If you provide feedback, ideas, or suggestions to AGI in connection with the Service, including without limitation, new features, functionality, or the like (“Feedback”), you authorize AGI to use this Feedback without any restriction, attribution or compensation to you. You hereby assign AGI all right, title, and interest in the Feedback.

Property Rights

AGI’s Rights. AGI shall retain all rights, title, and interest in and to the Service, any AGI materials furnished or made available hereunder, any modifications and/or enhancements of the foregoing, all of AGI’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other of AGI’s intellectual property and/or proprietary rights, and with respect to Third-Party Services, the applicable third-party providers own all right, title and interest including all intellectual property rights, in and to the Third-Party Services (collectively, "Intellectual Property Rights").

Notwithstanding any other provisions of the Agreement, AGI may monitor your use of the Service, including the Content you create and provide, and use data and information derived from such monitoring, to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between you and AGI, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by AGI.

You acknowledge that AGI will be compiling Aggregated Statistics and you agree that AGI may (a) make anonymized Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and (c) for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify you, or your personal information.

The rights granted to you to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith.

Your Rights. As between you and AGI, all right, title, and interest in any Content that you upload to the Service or create through the use of the Service is yours. You retain all intellectual property rights to your Content at all times. AGI will not verify or endorse any Content created by you with the Service. You are solely responsible for your Content and the consequences of creating it on the Service. AGI expressly disclaims all liability in connection with your Content.

Payment Terms

Billing. You may purchase and pay for your subscription with a valid credit card. By providing AGI with a credit card, you (i) represent that you are authorized to use the credit card; (ii) the information provided is true and accurate; and (iii) authorize AGI to charge you for the Service. All payments are due in advance of the subscription for a set Subscription Period for the Subscription Plan that you selected. The prices in the Subscription Plan exclude all applicable taxes, which will be calculated at checkout, and any currency exchange settlements. You agree to promptly update your account and other information, including your contact information and payment method details, so that we can complete your transactions and contact you as needed in connection with your transactions.

Renewal and Cancellation. Your payment will automatically renew at the end of the applicable Subscription Period, unless you cancel your Service prior to the end of the then-current Subscription Period. The cancellation will take effect the day after the last day of the current Subscription Period. AGI does not provide refunds or credits for any partial Subscription Periods.

Price Change. AGI may change the price of the Services from time to time and will communicate any price changes to you in advance. Price changes will take effect at the start of the next Subscription Period following the date of the price change. Subject to applicable law, you accept the new price by continuing to use the Service after the price change takes effect.

Non-Payment of Recurring Fees. If at any time during the Subscription Period the credit card used for the payment is declined or is no longer available for payment, you remain responsible for any uncollected amounts. You have a fifteen (15) calendar day grace period during which you must update your account with a valid form of payment. If the payment is not settled within fifteen (15) business days, we may suspend your access to the Service until we have successfully resolved the payment or we may cancel the Service. You will be responsible for all reasonable costs incurred by AGI in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. Suspension or cancellation of the Service for non-payment could result in a loss of access to and use of your account and its Content. To update your credit card information, contact Support.

Upgrades. If you choose to Upgrade your Subscription Plan, your current subscription will be terminated and a new Subscription Period will be created reflecting the new Subscription Plan. A prorated credit will be applied to your account for the remaining duration at the time of the upgrade.

Support

Support for the Service is available from AGI’s centralized support staff from 7AM to 7PM (EST), Monday through Friday at 1-800-924-7244 or +1-610-981-8888 or support@agi.com.

Export Compliance

The Service may be subject to U.S. Export Control Regulations and Laws, and to the import or export regulations of other countries. You agree to comply with all such laws and regulations as they relate to access to and use of the Service. You shall not access or use the Service if you are located in any jurisdiction in which the provision of the Service is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and you shall not provide access to the Service to any government, entity, or individual located in any Prohibited Jurisdiction. You represent, warrant, and covenant that (i) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) you are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) you shall not permit others to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions, (iv) you shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located. In the event that transfer of bank funds to AGI results from this Agreement, all transactions shall be exclusively and directly between your bank and AGI’s bank, and shall not be used for transactions in violation of U.S. law, including but not limited to laws administered by the U.S. Department of Treasury, Office of Foreign Asset Control (OFAC). This export control provision shall survive the expiration or termination of this Agreement.

Term and Termination

Unless terminated earlier as provided herein, the term of the Agreement shall commence on the date you are deemed to have accepted these terms and shall continue until the expiration of the Subscription Period or termination of this Agreement.

AGI may temporarily suspend or permanently terminate this Service if you violate any of the terms and conditions of this Agreement, including without limitation, to pay the appropriate fees and any other sums due to AGI pursuant to this Agreement. Any acts of omissions by you that constitute a breach of this Agreement may also result in immediate termination of your subscription. Termination may cause you to no longer have access to your Content.

AGI reserves the right to discontinue the Service temporarily or permanently or terminate this Agreement immediately upon notice to you if: (a) AGI’s relationship with a third party partner who provides software or other technology that AGI uses to provide the Service expires, terminates, or requires AGI to change the way it provides the software or other technology as part of the Service, (b) if AGI believes providing the Service could create a substantial economic or technical burden or material security risk for AGI, (c) in order to comply with the law or requests of governmental entities, (d) AGI determines that it no longer wishes to provide the Service to you, or (e) if AGI determines use of the Service by you or our provision of any of the Service to you has become impractical or unfeasible for any legal or regulatory reason. If AGI terminates the Service, unless for breach of this Agreement on your part and at AGI’s discretion, AGI may provide you with a prorated refund for the remaining Subscription Period. AGI will not be liable for any damages, losses, or other consequences that you may incur as a result of any suspension or termination of the Service of your account.

You may also choose to cancel your account at any time pursuant to the Payment Terms section of this Agreement. However, you remain responsible for all fees and any other sums due to AGI.

The following Sections: Definitions, Payment, Property Rights and Privacy, Warranty, Limitation of Liability, Indemnification, shall survive any termination or expiration of this Agreement.

Warranty Disclaimer

THE SERVICE (INCLUDING ANY THIRD-PARTY SERVICES), IS PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, INCLUDING BUT NOT LIMITED TO: IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPERTY RIGHTS, QUIET ENJOYMENT, AND SYSTEM INTEGRATION AND/OR DATA ACCURACY. AGI DOES NOT WARRANT THAT THE SERVICE, ITS FEATURES, AND FUNCTIONS WILL MEET YOUR SPECIFIC REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY SYSTEM OR OTHER SERVICES, BE SECURE, BE ACCURATE, BE COMPLETE, BE FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND AGI DOES NOT WARRANT THAT IT WILL CORRECT SUCH DISCREPANCIES. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY, SECURITY, AND PERFORMANCE OF THE SERVICE AND YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. AGI DOES NOT GUARANTEE THE CONFIDENTIALITY OF ANY CONTENT THAT YOU UPLOAD TO, STORE, OR CREATE USING THE SERVICE.

Limitation of Liability

AGI, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRACTORS, AND THIRD-PARTY LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USING, DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AGI BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF AGI KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGI AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, ASSIGNS, AND THIRD-PARTY LICENSORS CUMULATIVE LIABILITY TO YOU, HOWEVER ARISING, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO USE THE SERVICE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

Indemnification

You agree to defend, indemnify, and hold harmless AGI, its officers, directors, shareholders, employees, agents, contractors, and third-party licensors from and against any and all claims, damages, losses, liabilities, costs, and expenses (including, but not limited to attorney’s fees) arising out of or related to: (1) your use and access of the Service in a manner not authorized or contemplated by this Agreement; (2) your violation of any applicable laws or a third party; (3) your violation of any intellectual property rights, privacy, or other rights; and (4) your Content.

Governing Law

U.S. and its territories. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to choice or conflicts of law principles. You agree that all disputes or controversies arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of either the Court of Common Pleas of Chester County, Pennsylvania or the U.S. District Court for the Eastern District of Pennsylvania.

Other countries. Any dispute arising out of relating to this Agreement or the breach thereof that cannot be settled through negotiation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said rules. The language of the arbitration will be English. The place of arbitration shall be at an agreed upon location. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. Either Party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.

U.S. Government End User

If you are a part of an agency, department, or other entity of the United States of America Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service, software or any related documentation is restricted in accordance with the Federal Acquisition Regulation 12.212 for civilian agencies and the Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Service, software and documentation is a "commercial item", "commercial computer software" and "commercial computer software Documentation." The use of the Service, software and documentation is further restricted in accordance with the terms of this Agreement, or any modifications thereto.

Acknowledgements

Severability. Any provision of these Terms found by a court of law to be illegal, invalid, or unenforceable shall automatically be deemed conformed to the minimum requirements of law and it, with all other provisions, shall be given full force and effect. Waiver of a provision in one instance shall not preclude its enforcement on future occasions. Such findings of illegality, invalidity, and/or unenforceability of one or more of the provisions herein shall not affect the remaining provisions.

Injunctive/Equitable Relief. You acknowledge and agree that any unauthorized use of the Service or disclosure of AGI’s intellectual property may cause immediate and irreparable injury to AGI and that, upon the occurrence of such event, AGI will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

Assignment. You may not assign these Terms or any of your rights under this Agreement without the express, prior written consent of AGI. Absent such consent, any attempted assignment is null and void. AGI may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Service.

Attorneys’ Fees. In the event that either party is required to bring an action, suit, arbitration, or other proceeding for the enforcement of any provision of or under this agreement, each party will be responsible for their own costs and expenses, including attorney and professional expert fees.

Independent Contractors. In making and performing this Agreement, you and AGI will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership, or an employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.

Notice. All notices required by or relating to this Agreement shall be in writing and shall be sent by email, provided that you keep confirmation receipt of the transmittal, or by certified mail, to AGI:

Analytical Graphics, Inc.
220 Valley Creek Boulevard
Exton, PA 19341
Attn: Contracts Department
Email: contracts@agi.com

Force Majeure. In no event shall AGI be liable to you, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond AGI’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, epidemics, labor stoppages or slowdowns, failure of public utilities or public transportation systems, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to the Terms and shall not apply to any purchase orders issued in connection.

Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, any other documents, including Supplemental Terms, incorporated herein by reference.