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 208,
5010 - 4th Street NE, Calgary, Alberta, Canada, T2K 5X8 ("Avenir") and you, the
licensee ("You:"; "Licensee"). With regards to proprietary information that is supplied
by Viega North America, this Agreement is also made between Viega LLC, a Delaware
corporation with its principal place of business located at 301 North Main St. Suite
900, Wichita KS, USA, 67202 ("OEM") and You.
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 OEM edition software version of the PlumbingCAD®
software made generally available by Avenir or OEM and (ii) corrections, enhancements,
and upgrades thereto that Avenir or OEM may make available under this Agreement
(hereinafter referred to respectively as the "Retail Software", the "Evaluation
Software" and the "OEM 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.
- OEM Edition Software. If Licensee is licensing OEM Edition
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, 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 or OEM Edition Software at any
time during the evaluation term by completing the activation procedure, as more
particularly described at Avenir's or OEM'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
11 below). For OEM Edition Software, OEM owns and retains all right, title and interest
in and to: (a) OEM product information and materials; (b) OEM design methods and
calculations; and (c) the OEM trade-marks and logos.
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, 9, 10, 11 and 15 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. The full functionality
of the Evaluation Software shall terminate ("Trial Expiry") on the earliest of:
(a) forty-five (45) Sessions of the Evaluation Software, where the act of opening
the Evaluation Software on Licensee's computer shall be deemed to constitute one
"Session"; (b) forty-five (45) Projects undertaken using the Evaluation Software,
where the initiation of one design project using the Evaluation Software shall be
deemed to constitute one "Project", or (c) thirty (30) calendar days. Following
the Trial Expiry, Licensee may continue to use the Software features that remain
enabled subject to the terms and conditions of this Agreement.
If Licensee is licensing OEM Edition Software on a subscription basis, this Agreement
is effective beginning on the date on which the OEM Edition Software is activated.
After the expiry of Your subscription license ("Subscription Expiry"), the OEM Edition
Software may cease to function or certain features and functionality may cease to
function. Following the Subscription Expiry, Licensee may continue to use the Software
features that remain enabled subject to the terms and conditions of this Agreement.
- Updates. Avenir may, in its sole discretion, make new
versions and releases of the Software available to Licensee, including corrections,
enhancements and upgrades. In order to optimize the Software Avenir may, at its
discretion and without notice, add, modify or remove features from the software
at any time. You shall have the right to receive these updates during the period
when Your subscription is active.
- Product Installation and Activation. There may be technological
measures in this Software that are designed to prevent unlicensed or illegal use
of the Software. You agree that Avenir may use these measures to protect Avenir
against software piracy. This License Agreement and the Software containing enforcement
technology may require activation as further set forth in the Documentation. If
so, the Software may only operate for a finite period of time prior to Software
activation by You. During activation, You may be required to provide Your unique
installation ID from within the installed Software and computer configuration over
the Internet to verify the authenticity of the Software. If You do not complete
the activation within the finite period of time set forth in the Documentation,
or as prompted by the Software, the Software may cease to function until activation
is complete; at which time the Software functionality will be restored. In the event
that You are not able to activate the Software over the Internet, or through any
other method specified during the activation process, You may contact Avenir using
the information provided by Avenir during activation, or as set forth herein.
- Support. Avenir will provide telephone support for the
Retail Software for a period of ninety (90) days following activation, and Internet
and e-mail support for the term of the License, subject to the limitations in this
Section 8. Avenir will provide only Internet and e-mail support for the Evaluation
Software for the term of the License and for the OEM Edition Software while Your
subscription is active, subject to the limitations in this Section 8.
Where applicable Support shall be provided: (a) through direct telephone and e-mail
access, during Avenir's normal business hours, which are 9:00 AM to 4:00 PM 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", may be provided at Avenir's
website or the OEM's website.
Any such Technical Support shall be provided in Avenir's sole discretion without
any guarantee or warranty of any kind. It is solely Your responsibility to complete
a backup of all Your existing data, software and programs before receiving any Technical
Support. In the course of providing the Technical Support, Avenir may determine
that the technical issue is beyond the scope of the Technical Support. Avenir reserves
the right to refuse, suspend or terminate any of the Technical Support in its sole
discretion.
Avenir will only provide the foregoing support for the then-current version of the
Software. Provision of support for previous versions of the Software shall be discontinued
three (3) months after Avenir has made a new version of the Software generally available.
- Limited Warranty. Avenir warrants that for a period of
thirty (30) days from the date on which the Software is activated, (a) the media
provided by Avenir, if any, on which the Software is recorded, will be free from
material defects in materials and workmanship under normal use, and (b) the operation
of the 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 OR THE OEM 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 OR OEM'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 OR OEM ACCORDINGLY 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
OR OEM LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION OCCURRED, AND EXCEPT AS PROVIDED
IN SECTION 9 ABOVE, IN NO EVENT WILL AVENIR OR OEM 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 11 of this Agreement, Avenir or OEM 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.