END USER AGREEMENT
This End User License Agreement (the “Agreement”) is made between Avenir Software,
Inc., an Alberta corporation with its principal place of business located at
206, 4603 Varsity Drive NW, Calgary, Alberta, Canada, T3A 2V7 (“Avenir”) and you, the
licensee ("You:"; “Licensee”).
IMPORTANT! YOUR USE OF THE AVENIR SOFTWARE INSTALLED ON THIS COMPUTER OR CONTAINED
ON THIS CD-ROM IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PLEASE READ ALL OF THIS AGREEMENT BEFORE USING THE AVENIR SOFTWARE INSTALLED ON
THIS COMPUTER OR CONTAINED ON THIS CD-ROM.
ACCESSING THE AVENIR SOFTWARE INSTALLED ON THIS COMPUTER OR CONTAINED ON THIS CD-ROM
IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES YOUR ACCEPTANCE OF ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AVENIR IS UNWILLING
TO LICENSE THE SOFTWARE TO YOU. YOU MAY NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE
AND YOU SHOULD PROMPTLY CONTACT AVENIR FOR INSTRUCTIONS ON RETURNING THE SOFTWARE.
- Definitions In this Agreement, the following terms shall
have the meanings assigned to them below:
- "Documentation" means the then-current published user
manuals and documentation that Avenir makes generally available for the Software.
- "Software" means (i) the specified machine-readable object
code retail, evaluation and/or learning edition software version of the HeatCAD®
software made generally available by Avenir and (ii) corrections, enhancements,
and upgrades thereto that Avenir may make available under this Agreement (hereinafter
referred to respectively as the "Retail Software", the "Evaluation Software" and
the “Learning Edition Software”) and (iii) all copies of the foregoing.
- License Grant
- Retail Software. If Licensee is licensing Retail Software
from Avenir, subject to the terms and conditions of this Agreement, and in consideration
for the payment of all applicable license fees, Avenir hereby grants to Licensee,
and Licensee accepts from Avenir, a limited, perpetual, non-exclusive, non-transferable,
and non-sublicensable right to install, use, access, run, and otherwise interact
with the Software on a single computer within the scope of license granted herein,
solely in and for Licensee’s own personal use or internal business operations (subject
to limitations set forth in Section 3 ("Restrictions") below), and solely in accordance
with the related Documentation. Licensee may also install, use, access, run, and
otherwise interact with the Software on one additional computer for Licensee’s portable
or home office use, provided that:
- Licensee is the sole user of the Software on any computer on which the Software
is installed,
- Licensee has executed Avenir's then-current secondary-use installation form documenting
Licensee's installation of the Software on an additional computer as per this Section
2(a) and returned same to Avenir, and
- Licensee has paid all required fees.
Licensee may also make one additional copy of the Software solely for non-productive
archival purposes, so long as the copy contains all titles, trade-marks and copyrights
and restricted rights notices as in the original. Nothing in this Agreement entitles
Licensee to receive or grant any rights to the source code for any part of the Software.
- Evaluation Software. If Licensee is licensing Evaluation
Software from Avenir, subject to the terms and conditions of this Agreement, Avenir
hereby grants to Licensee, and Licensee accepts from Avenir, a limited, non-exclusive,
non-transferable, non-sublicensable, revocable right to install, use, access, run,
and otherwise interact with the Software on a single computer within the scope of
license granted herein, solely for Licensee’s trial and evaluation purposes (subject
to limitations set forth in Section 3 ("Restrictions") below), and solely in accordance
with the related Documentation. Nothing in this Agreement entitles Licensee to receive
or grant any rights to the source code for any part of the Software. Licensee may
convert the Evaluation Software to Retail Software at any time during the evaluation
term by completing the activation procedure, as more particularly described at Avenir's
website.
- Learning Edition Software. If Licensee is licensing Learning
Edition Software from Avenir, subject to the terms and conditions of this Agreement,
Avenir hereby grants to Licensee, and Licensee accepts from Avenir, a limited, non-exclusive,
non-transferable, non-sublicensable, revocable right to install, use, access, run,
and otherwise interact with the Software on a single computer within the scope of
license granted herein, solely for Licensee’s learning purposes (subject to limitations
set forth in Section 3 ("Restrictions") below), and solely in accordance with the
related Documentation. Nothing in this Agreement entitles Licensee to receive or
grant any rights to the source code for any part of the Software. Licensee may convert
the Learning Edition Software to Retail Software at any time during the evaluation
term by completing the activation procedure, as more particularly described at Avenir's
website.
- Restrictions. Avenir reserves any and all rights, express
or implied, not expressly granted to Licensee under this Agreement and retains all
rights, title and interest in and to the Software. Licensee agrees that it has no
right whatsoever to modify the Software or any portion thereof in any manner. Licensee
shall not use the Software over a network system. Licensee shall not reverse engineer,
decompile, disassemble, modify, adapt, rent, lease, commercial time-share, loan
or create derivative works based upon the Software or any part thereof.
- Ownership. The Software and the Documentation are protected
by Canadian and international copyright and other intellectual property laws. Avenir
owns and retains all right, title and interest in and to: (a) the Software, including
but not limited to, all copies, versions, Updates and all related Documentation
and any and all copyrights, moral rights, patent rights, trade secret rights and
other intellectual property rights therein, throughout the world; (b) the Avenir
trade-marks and logos; and (c) all Confidential Information (as defined in Section
10 below).
Licensee acknowledges and agrees that installation, downloading or use of the Software
does not transfer to Licensee any ownership, title, or registrable interest of any
kind in the Software and that Licensee shall not acquire any rights to the Software
except as expressly set forth in this Agreement.
- Term and Termination . Regardless of the location of the
Software, Licensee shall be responsible for strict compliance with any and all of
the terms and conditions of the Agreement. This Agreement will terminate automatically
if Licensee breaches any provision of this Agreement or otherwise fails to comply
with any of the limitations or other requirements described in this Agreement. Upon
termination of this Agreement for any reason, Licensee shall immediately cease use
of the applicable Software and destroy or return to Avenir such Software and all
copies thereof. Termination of this Agreement for any reason shall not relieve Licensee
of its obligation to pay all fees that have accrued or have become payable by Licensee
under this Agreement. The provisions of Sections 3, 5, 8, 9, 10 and 14 shall survive
termination of this Agreement.
If Licensee is licensing Evaluation Software, this Agreement is effective beginning
on the date on which the Evaluation Software is installed and terminates after thirty
(30) calendar days.
If Licensee is licensing Learning Edition Software, this Agreement is effective
beginning on the date on which the Learning Edition Software is activated and terminates
after one hundred and twenty (120) calendar days.
- Updates . Avenir may, in its sole discretion, make new
versions and releases of the Retail Software available to Licensee, including corrections,
enhancements and upgrades, if and when it makes them generally available.
- Support . Avenir will provide telephone, Internet and
e-mail support for the Retail Software the term of the License and only when the
Licensee has an active Subscription, subject to the limitations in this Section
7. Avenir will provide only Internet and e-mail support for the Evaluation Software
and Learning Edition Software for the term of the License, subject to the limitations
in this Section 7.
Support shall be provided: (a) through direct telephone and e-mail access, during
Avenir's normal business hours, which are 8:00 AM to 5:00PM MST, Monday to Friday,
(excepting statutory holidays in Alberta and any down-time experienced due to periodic
maintenance or network unavailability); (b) by employees of Avenir who have the
necessary technical expertise and experience to reasonably address Licensee's inquiries;
(c) to one (1) designated representative of Licensee, who may be changed upon written
notice to Avenir; and include, but not be limited to, the following: (i) a direct
response to Licensee with respect to inquiries concerning the performance, functionality
or operation of the Software, (ii) a direct response to Licensee with respect to
problems or performance deficiencies with the Software, (iii) a diagnosis of problems
or performance deficiencies with the Software, and (iv) a resolution of problems
or performance deficiencies of the Software. Additional self-help support, including
"Frequently-Asked Questions", will be provided at Avenir's website.
For the Retail Software, Avenir will only provide the foregoing support for the
then-current version. Provision of support for a previous version of the Retail
Software shall be discontinued on the later of six (6) months after Avenir has made
a new version of the Retail Software generally available, or the date when the Licensees
Subscription expires.
- Limited Warranty. Avenir warrants that for a period of
thirty (30) days from the date on which the Retail Software is activated, (a) the
media provided by Avenir, if any, on which the Retail Software is recorded, will
be free from material defects in materials and workmanship under normal use, and
(b) the operation of the Retail Software, as provided by Avenir, will substantially
conform to the Documentation.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND AVENIR HEREBY DISCLAIMS,
ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY OF SERVICE.
Licensee must report in writing any breach of the foregoing warranties to Avenir
during the warranty period, and Licensee’s exclusive remedy, and Avenir’s sole obligation,
for any such breach of warranty or conditions shall be for Avenir to replace defective
media and to correct or provide a workaround for reproducible errors that cause
a breach of the warranty or conditions within a reasonable time considering the
severity of the error and its effect on Licensee, or, at Avenir’s option, refund
the license fees paid for the nonconforming Software upon return of such Software
to Avenir and termination of the related license hereunder.
- Limitation of Remedies and Damages. IN NO EVENT WILL AVENIR
OR ITS SUPPLIERS OR AFFILIATES OR LICENSEE BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION
OR DATA AND THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. AVENIR’S CUMULATIVE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR
DAMAGES FROM ANY CAUSE RELATED TO OR ARISING FROM THIS AGREEMENT, AND REGARDLESS
OF THE FORM OF THE ACTION, SHALL BE LIMITED TO NO GREATER THAN THE AMOUNT OF FEES
PAID TO AVENIR UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RELATE TO PARTICULAR ITEMS
OF SOFTWARE OR SERVICES PROVIDED BY AVENIR, SUCH LIABILITY SHALL BE LIMITED TO THE
FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICES ONLY. THE PARTIES ACKNOWLEDGE AND
AGREE THAT NO ACTION MAY BE BROUGHT AGAINST AVENIR LATER THAN ONE YEAR AFTER THE
CAUSE OF ACTION OCCURRED, AND EXCEPT AS PROVIDED IN SECTION 8 ABOVE, IN NO EVENT
WILL AVENIR BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY
ANY THIRD PARTY AGAINST LICENSEE OR ITS AFFILIATES.
- Non-disclosure. “Confidential Information” means this
Agreement, the Software, source code, object code and any proprietary tools, proprietary
knowledge, trade secrets, know-how or proprietary methodologies disclosed by one
party (the “Disclosing Party”) to the other party (the “Receiving Party”) and not
generally known by non-party personnel, which the Receiving Party may gain access
to or knowledge of as a result of this Agreement. The Receiving Party shall observe
complete confidentiality with respect to the Confidential Information, and shall
take all reasonable steps to protect the Confidential Information from any use,
reproduction, publication, disclosure, or distribution except as specifically authorized
by this Agreement. The Receiving Party shall promptly notify the Disclosing Party
of any known unauthorized use or disclosure of the Software and will cooperate with
the Disclosing Party in any litigation brought by the Disclosing Party against third
parties to protect its proprietary rights.
- Injunctive Relief. Licensee acknowledges and agrees that
in the event of a material breach of this Agreement, including but not limited to
a breach of Section 3 or 10 of this Agreement, Avenir shall be entitled to seek
immediate injunctive relief, without limiting its other rights and remedies.
- Export Law Assurances. Licensee shall not export or re-export,
or allow the export or re-export of the Software or any copy, portion or direct
product of the foregoing, in violation of any export laws, restrictions, national
security controls or regulations of Canada, the United States or other applicable
foreign agency or authority.
- Usage Verification . At Avenir's request, but not more
frequently than annually, Licensee shall furnish Avenir with a document signed by
Licensee's authorized representative verifying Licensee's usage of the Software.
Licensee shall permit Avenir to review Licensee's deployment and use of the Software
for compliance with the terms and conditions of this Agreement, at Avenir's expense.
Any reviews shall be scheduled at least 15 days in advance, shall be conducted during
normal business hours at Licensee's facilities, and shall not unreasonably interfere
with Licensee's business activities. If Licensee's use of the Software is found
to be greater than contracted for, Licensee will be invoiced for the additional
licenses and the unpaid license fees shall be payable in accordance with this Agreement.
Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject
Software, then Licensee shall also pay Avenir's reasonable costs of conducting the
audit.
- General
- This Agreement shall be governed by and construed in accordance with the laws of
the Province of Alberta and the federal laws of Canada, excluding its conflicts
of laws principles. The parties agree that the United Nations Convention on Contracts
for the International Sale of Goods does not apply to this Agreement. Any action
seeking enforcement of this Agreement or any provision hereof shall be brought exclusively
in the provincial or federal courts located in the Province of Alberta, Canada.
Each party irrevocably submits to the exclusive jurisdiction of such courts.
- Licensee may not assign or transfer its rights or obligations under this Agreement
without prior written consent of Avenir, which shall not be unreasonably withheld,
and any purported assignment without Avenir’s consent shall be null and void. For
greater certainty, any change of control of Licensee, including, without limitation,
by way of merger or amalgamation (regardless of whether Licensee is the surviving
entity) shall be deemed to be an assignment.
- If any provision of this Agreement shall be held by a court of competent jurisdiction
to be contrary to law, that provision will be enforced to the maximum extent permissible,
and the remaining provisions of this Agreement will remain in full force and effect.
- Licensee agrees that Avenir may include Licensee in its listing of customers and
may announce Licensee's selection of Avenir in its marketing communications.
- Performance of any obligation required by a party hereunder may be waived only by
a written waiver signed by an authorized representative of the other party, which
waiver shall be effective only with respect to the specific obligation described
therein.
- Other than for payment obligations, each party will be excused from performance
for any period during which, and to the extent that, it is prevented from performing
any obligation or service as a result of causes beyond its reasonable control, and
without its fault or negligence, including without limitation, acts of God, strikes,
lockouts, riots, acts of war, epidemics, communication line failures, and power
failures.
- This Agreement, constitutes the entire agreement between the parties regarding the
subject matter hereof and supersedes all prior or contemporaneous agreements or
representations, written or oral, concerning the subject matter of this Agreement.
- The parties hereto have expressly required that the Agreement be drawn up in the
English language. Les parties aux presentes ont expressement exigé que la present
convention soit rédigée en langue anglaise.