SOFTWARE LICENSING AGREEMENT
This Software Licensing Agreement ("Agreement"), is made and entered into by and between 3DFire Pty Ltd ACN 161 932 672 ("Licensor") a company existing under the laws of Australia and the Licensee as defined herein for the licensing and usage of the PipeFAB software.
BACKGROUND AND DEFINITION
PipeFAB is a computer software program for listing and modeling of Pipework. The PipeFAB software ("PipeFAB") may be used only by the Licensee strictly in accordance with the terms and conditions of this Agreement. All references to "PipeFAB" throughout this Agreement shall include the PipeFAB software, and all related files, products, programs, documentation, manuals, additions, and accessories.
The Licensor has developed, and is entitled to license to others including Licensee, a computer software program called PipeFAB, add-in for Revit. The Licensor is the owner of all right, title, and interest in and to PipeFAB software, including all proprietary rights, Intellectual Property rights, concepts and ideas, confidential and trade secret materials, codes, programs, access information, trademarks, service marks, patents, and copyrights.
The Licensee is any person wishing to licence the use of PipeFAB software, and the Licensor has agreed to license such use, pursuant to the terms of this Agreement. Any person or entity signing this Agreement, accepting this Agreement by utilising or activating the User Licence Number and password, or by pressing the "I Agree" button on the Installation Licensing Menu, or otherwise agreeing to or accepting this Agreement, shall be a Licensee. Notwithstanding any other provision of this Agreement, Licensor shall have no obligation to accept or approve any person or entity as a Licensee, to grant a License to use PipeFAB software to any person or entity, or to permit the purchase, leasing, or other utilisation of PipeFAB software in any manner whatsoever. Licensor specifically reserves the right to reject any Licensee with or without cause.
The Licensor has agreed to license PipeFAB software to the Licensee for the Permitted Purpose and the Licensee accepts the licence on the following terms and conditions.
1. GRANT OF LICENSE
When the Licensor receives full payment of the required licence fees from the Licensee, the Licensor hereby grants to Licensee a personal, non-transferable and non-exclusive licence to use, and Licensee accepts from Licensor, a non-exclusive and non-transferable License to use PipeFAB software, subject to the terms and conditions of this Agreement “Licence”. The Licence granted under this Agreement shall apply to any Licensee leasing, purchasing or otherwise acquiring from Licensor the right to use PipeFAB software. Licensee shall not utilise PipeFAB software for any application other than for pipe listing and modelling “Permitted Purpose”.
Licensor is the legal owner of all rights, trademarks, patents, copyrights, title and interest in and to PipeFAB software, including all proprietary rights, Intellectual Property rights, concepts and ideas, confidential and trade secret materials, codes, programs, access information, and service marks, including modifications, enhancements, derivative works or upgrades. PipeFAB software and all accompanying proprietary rights shall remain the property of Licensor. Licensee shall not, by virtue of this Agreement, or otherwise, acquire any right, title or interest whatsoever in PipeFAB software or in the afore mentioned proprietary rights of Licensor. Licensee specifically agrees and acknowledges that the hardware key for PipeFAB software shall, at all times, remain the sole property of Licensor.
The Licensee further agrees that they will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or part PipeFAB software nor anything similar.
3. AUTHORISED LOCATION (S)
Provided the Licensee is not in default of any term of this Agreement, Licensee may change the Authorised Location (s) from time to time, without the consent of the Licensor, by delivering 21 days prior written notice of the change of location to the Licensor together with the written confirmation that Licensee will comply with the following conditions:
- The proposed Authorised Location shall be within the same municipality as the current Authorised Location; and
- The use of the PipeFAB software in the current Authorised Location shall cease by the time of commencement of the use of PipeFAB software at the proposed Authorised Location;
- Otherwise, Licensee may change and Authorised Location only with the prior written consent of Licensor, which shall not be unreasonably withheld.
The Licence permitting Licensee's nonexclusive use of PipeFAB software shall be subject to the following restrictions.
- Licensee shall not make or distribute copies of PipeFAB software, or electronically transfer PipeFAB software from one computer to another or over a network;
- Licensee shall not copy, produce, duplicate, distribute, disclose, rent, lease, sublicense, transfer or otherwise make available PipeFAB software to other persons or entities;
- Licensee shall not engage in any use of PipeFAB software which may adversely affect or compromise Licensor's ownership or proprietary rights, or which may jepardise Confidential Information, trade secrets, trademarks, copyrights, or other proprietary rights of the Licensor;
- Licensee shall not make copies of PipeFAB software for any purpose;
- Licensee must not assign or transfer, lease, export or grant a sub license of the PipeFAB software or the licence contained herein to any person except as and when authorised to do so by Licensor in writing;
- Licensee must not network PipeFAB software or otherwise use it on other than Licensee’s computer except as expressly approved by Licensor;
- Licensee shall not alter, modify or remove any proprietary notices, disclosures, disclaimers or labels from PipeFAB software;
- Licensee shall notify all of Licensee's employees, agents, representatives and authorised users of PipeFAB software under the Licence of the terms, conditions and restrictions as set forth in this Agreement;
- Licensee shall not permit individuals or entities other than Licensee to use, PipeFAB software in any manner whatsoever without express written consent of Licensor;
- Licensee shall not reverse engineer, alter, modify, change, enhance, revise, decompile, disassemble, obliterate, destroy, or revise PipeFAB software or any proprietary notices required by Licensor;
- Licensor shall take all reasonable precautions to prevent third parties from using PipeFAB software in any way that would constitute a breach of this agreement including, without limitation, such precautions as Licensee would otherwise take to protect its own proprietary software or hardware or information;
- Licensor shall not use the PipeFAB software to act as a service bureau, in whole or in part, for any other person, including any affiliate of Licensee except when expressly previously agreed with the Licensor;
- Licensee shall not ship, transfer, transport, or export, directly or indirectly, PipeFAB software outside Australia without permission of the Licensor;
- Licensee shall not, either directly or indirectly, engage in or permit any use, duplication or disclosure of PipeFAB software in a manner which is competitive with or injurious to Licensor's business, ownership, proprietary rights or economic interests;
- Licensee shall not use or permit the use of PipeFAB software at any location other than Licensee's authorised premises;
- Licensee shall not deliver custody or control of PipeFAB software to any person or entity without the express written consent of Licensor;
- DATA TRANSFER. Upon each launch of PipeFAB software, the software delivers basic data, including the license number, password, application name, and application version for internal use. Licensee shall not intentionally prevent or attempt to prevent the transfer of the aforementioned data by PipeFAB software, including, without limitation by the use of firewalls, communications blocking software or filtering software, and whenever possible, Licensee shall configure its computer system to allow the transfer of the data.
In the event Licensee engages in or permits any use, duplication, or disclosure of PipeFAB software other than as expressly authorised, Licensee shall be liable to Licensor for damages in a minimum amount of FIFTY THOUSAND AUSTRALIAN DOLLARS (AUS $50,000.00) per unit. Such liability for damages on the part of Licensee shall not operate or be construed as a limitation on Licensee's liability or Licensor's rights and remedies as otherwise set forth in this Agreement or at law. Licensor expressly reserves all rights and remedies including, but not limited to, injunctive relief to restrain Licensee from violating or breaching the terms and provisions of this Agreement.
5. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Licensee acknowledges that Licensee has fully inspected and evaluated PipeFAB software prior to entering into this Agreement;
- The entire risk arising out of the use or performance of PipeFAB software resides and remains with Licensee. Licensor does not warrant the performance, functions, capabilities or results of PipeFAB software, nor has Licensor represented or warranted that PipeFAB software will meet or satisfy Licensee's requirements;
- Except for the restrictions set forth in this Agreement, Licensor has no control over the conditions under which Licensee will or intends to use PipeFAB software, and Licensor does not and cannot warrant the results which may be obtained by such use;
- Licensor shall have no responsibility or liability for defects or problems arising out of the usage of network software, computer hardware, computer operating systems, or the compatibility or interaction of PipeFAB software with other programs or software;
- Licensor does not warrant that the functions contained in PipeFAB software will meet the requirements of Licensee or that the operation of PipeFAB software will be uninterrupted or error free;
- Licensor is not responsible for problems caused by changes in or modification to the operating characteristics of any computer hardware or operating system for which PipeFAB software is procured, nor is Licensor responsible for problems which occur as a result of the use of PipeFAB software in conjunction with software or with hardware which is incompatible with the operating system for which PipeFAB software is procured;
- Licensee acknowledges that Licensor has made no representations or warranties concerning PipeFAB software except as specifically set forth in this Agreement;
- Additional statements such as those made in advertising or presentations, whether oral or written, do not constitute warranties by Licensor and should not be relied upon as such;
- Use of PipeFAB software is at your sole risk. The Licensor’s liability and Licensee’s exclusive remedy under this warranty will be, at Licensor’s sole option and subject to applicable law, providing conforming PipeFAB software, or to terminate the non-conforming PipeFAB software, and provide a prorated refund of any prepaid fees from the period of non-conformance through the end of the remaining term. To the extent permitted by applicable laws, the Licensor disclaims all other warranties and conditions, whether express, implied, statutory or otherwise, including any express or implied warranties of merchantability, satisfactory quality, title, fitness for a particular purpose and non-infringement. Some jurisdictions do not allow the exclusion of certain warranties and conditions, therefore some of the above exclusions may not apply to Licensees located in those jurisdictions.
PipeFAB software is designed to assist users in pipe modeling, drawings annotation and producing of cutting sheets (Pipe fabrication report). Users must independently review, evaluate, check and verify all cutting sheets. 3DFire Pty Ltd shall not, under any circumstances, be responsible or liable for any miscalculations, error, or other inaccuracies resulting from use of PipeFAB software, or user's failure to review, evaluate, check or verify pipe cutting sheets. In addition, PipeFAB software shall not, under any circumstances, be responsible or liable for any consequential, incidental or other damages or costs whatsoever arising out of the use of PipeFAB software, including, but not limited to lost profits, business interruption or lost revenue or lost income.
6. LIMITATION OF LIABILITIES AND REMEDIES
Licensor shall have no liability or responsibility for any design, pricing, estimating, hydraulic calculation result, stock listing computation, elevation, result, product, or other work resulting from Licensee's use of PipeFAB software. Licensee shall indemnify and hold Licensor harmless from any and all claims, causes of action, loss, damage, or liabilities claimed or asserted by any third party or entity for any design, pricing, estimating, hydraulic calculation result, stock listing computation, evaluation, product, result, or other work resulting from Licensee's use of PipeFAB software.
Any content or data made by third parties and used in PipeFAB is not responsibility of 3DFire Pty Ltd to upkeep and maintain.
This Agreement sets forth Licensor's entire liability and the Licensee's exclusive remedy with respect to the License or the use of PipeFAB software. The limitations of damages and remedies set forth herein are fundamental elements of the basis of the bargain between Licensor and Licensee. Licensee acknowledges that Licensor would not be able to provide PipeFAB software as agreed without such limitations.
Licensee acknowledges that PipeFAB software and all accompanying proprietary rights constitute confidential trade secrets. Licensee shall, at all times, take all steps necessary to preserve and protect Licensor's ownership and proprietary rights in and to PipeFAB software. Licensee shall also take steps necessary to prevent any unauthorised use, duplication or disclosure of PipeFAB software, and to prevent any conduct or activities which may adversely affect, compromise or jeopardise Confidential Information, trade secrets, trademarks, copyrights, or other proprietary rights of the Licensor. Licensee shall be liable and responsible for any and all damages, loss, costs or expenses suffered or incurred by Licensor as a result of Licensee's failure to preserve and protect the confidentiality of PipeFAB software and/or Licensor's proprietary rights.
8. LICENSOR'S REMEDIES
The rights and remedies available to Licensor under this Agreement or under applicable law are cumulative and not exclusive. Licensor shall be entitled to exercise or pursue any and all rights and remedies whether set forth in this Agreement or otherwise permitted by law, including, but not limited to, commencement or maintenance of a lawsuit or other proceedings against Licensee seeking injunctive relief to restrain Licensee from violating or breaching the terms and provisions of this Agreement. Licensee acknowledges that an award of money damages would not adequately compensate Licensor for any breach or violation of Licensee's obligation to maintain the confidentiality of PipeFAB software and to preserve and protect Licensor's proprietary rights, that Licensor would suffer irreparable injury upon any such breach or violation by Licensee, and that recourse to injunctive or other equitable relief is authorised and necessary in order to protect the confidentiality of PipeFAB software business, trade secrets, and proprietary rights of Licensor.
9. GENERAL PROVISIONS
Licensee acknowledges that this Agreement is a complete statement of the agreement between Licensee and Licensor, and that there are no other prior or contemporaneous understandings, promises, representations, or agreements regarding the services to be performed by Licensor.
- (Amendment & Modification) - This Agreement may not be amended or modified except in a writing;
- (Provision of this Agreement) - If any provision of this Agreement is deemed invalid or unenforceable under applicable law, then it is to that extent, deemed omitted and the remaining provisions of this Agreement will continue in full force and effect;
- (Validity & Performance) - The validity and performance of this Agreement shall be governed by the laws of New South Wales, and the parties submit to the jurisdiction of the Courts of NSW under Australia law;
- (Waiver or Modification) - The failure of Licensor to enforce any of its rights under this Agreement upon one or more occasions, or to exercise any of its rights, shall not be deemed a waiver or modification of such rights. The provisions of this Agreement, which by their terms, require or contemplate performance by the parties after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion;
- (Relationship) – Nothing in this Agreement constitutes or is deemed to constitute a partnership, joint venture or agency between parties. Licensee is not an agent or representative of Licensor, and Licensee shall have no express or implied authority to act on behalf of Licensor at any time;
- (Disputes/Delinquent accounts) - You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may also suspend or terminate your PipeFAB software access if you do not pay undisputed fees, and you agree to reimburse PipeFAB software for all reasonable costs and expenses incurred in collecting delinquent amounts;
- (Compliance with Laws) – Each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, and data protection laws and regulations. Notwithstanding any other provision in this Agreement, the Licensor may immediately terminate the Agreement for noncompliance with applicable laws.
10. INTERPRETATION / DEFINITIONS
- “Agreement” means this licence agreement and any amendments in writing.
- “Confidential Information” means all information in whatsoever form that it is:
a) Marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;
b) Is designated, described or referred to by the discloser in any document or correspondence as confidential, secret, private or not to be disclosed;
c) The receiving party knows or ought to know is confidential;
d) Received by the parties, in connection with this Agreement, confidential and sensitive information relating to the other party. The parties must keep such information confidential, using it strictly for authorised purposes only and not disclose it to anyone without the other party’s approval in writing; Specifically, the Licensee will:
a. Maintain effective security measurements to keep the information secure;
b. Tell the Licensor immediately on finding out about any suspected or actual unauthorised use of disclosure of such information; and
c. Upon termination of this Agreement, promptly return any Confidential Information of or relating to the Licensor;
but does not include any information which prior to the date of this Agreement was lawfully in the public domain or which the discloser has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party;
- “Intellectual Property Rights” means all rights in copyright, circuit layout, designs, trademarks, patents and all other rights in Intellectual Property as definite in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not;
- ”Person” means an individual, corporation, partnership, joint venture, trust, unincorporated organisation, the Crown or any agency or instrumentality thereof or any other jurisdiction entity recognised by Australian Law;
- “Use” means use/load, adapt/modify, run.
12 DEALING WITH AGREEMENT DISPUTES
The Licensor and Licensee must promptly inform each other upon becoming aware of any complaint about the other party of its services or any other issue or dispute relevant to the subject matter of the Agreement (Dispute).The notification must specify the details of the Dispute sufficiently to allow the other party to respond to the Dispute.
- Except where urgent relief is required, a party must not commence legal proceedings unless it has complied with this clause;
- All Disputes will be dealt with by authorised representatives of each party, who must use their best endeavours to resolve the Dispute by negotiation;
- If a Dispute has not been resolved within 14 business days following notification of the Dispute, or a longer period agreed between the parties, the Dispute must be referred to a mediator appointed by the Australian Commercial Duties Centre in Sydney, or an alternative expert mediator agreed between the parties;
- If the Dispute cannot be resolved within 30 business days of referral, then either party may terminate the mediation process by notice;
- The Parties agree to share costs in connection with retaining a mediator under this clause.
Continue to Perform
- Despite the existence of a Dispute, the Parties agree to perform their obligations under the Agreement, unless the nature of the Dispute renders it impossible to do so.
Licensor shall be entitled and Licensor reserves the right to terminate this Agreement and the Licence granted to Licensee with or without cause upon Licensor's reimbursement to Licensee of all monetary consideration paid by Licensee to Licensor for PipeFAB software and for training. In addition, this Agreement and the License granted to Licensee shall terminate automatically in the event Licensee fails to comply with any of the terms or conditions of this Agreement. Licensor shall not be required to notify Licensee of the termination of this Agreement or the License. Licensor may, however, at its sole option, elect to notify Licensee of the termination of this Agreement or the License, and the termination shall be effective immediately upon such notification. Any termination of this Agreement by Licensor shall not be interpreted or construed as a waiver of any claims, causes of actions, damages or losses suffered or incurred by Licensor, all of which are expressly reserved. Upon termination of this Agreement and/or the License, all rights granted to Licensee under this Agreement and/or the License shall terminate immediately, Licensee shall immediately return PipeFAB software and all electronic media, manuals, and hardware keys to Licensor, and Licensee shall thereafter refrain from any use, duplication or disclosure whatsoever of PipeFAB software. Upon any termination of this Agreement and/or the License for Licensee's failure to comply with the terms or conditions of this Agreement, Licensee shall not be entitled to claim or receive a refund or return of any fees or other considerations paid to Licensor.
14 EXISTING CUSTOMER UPGRADES
The continual usage of any free PipeFAB software upgrade provided to existing PipeFAB software customers is conditioned and contingent upon said customers continuing to subscribe to maintenance agreements with Licensor and to payment of all applicable maintenance fees.
15 LICENSEE'S ACCEPTANCE
Licensee hereby agrees to and accepts all of the terms and conditions of this Agreement and the accompanying Licence. Licensee acknowledges that Licensee has carefully read and fully understands all of the provisions of this Agreement and Licensee's obligations hereunder. Licensee expressly agrees and acknowledges that this Agreement shall apply to either a lease or purchase of PipeFAB software.
By entering a license key below, you hereby agree to the terms and conditions set forth in the Software licensing Agreement.