AVONTUS® SOFTWARE LICENSE AGREEMENT
Avontus Designer™ (previously “Scaffold Designer” and hereinafter “Avontus Designer”) and Avontus Viewer™ (previously “Scaffold Viewer” and hereinafter “Avontus Viewer”), and any former or future nomenclatures for any such products
This Product (as defined below) is intended for use by qualified scaffold engineers, designers and/or competent persons as defined by OSHA and/or other applicable regulatory bodies. Use by unqualified persons may result in DEATH, SERIOUS PERSONAL INJURY, OR PROPERTY DAMAGE. Loads are determined by this Product based on the load-carrying capacity of a single leg. The total loads on individual components (plank, side bracket, etc.) as well as the loading of the scaffold assembly (dead load, live load, wind load, seismic load, etc.) must be considered by any user of this Product. The Product provides no engineering checks or regulatory validation routines. You are entirely responsible for ensuring that the outputs generated by the Product are sufficient for your purposes and that they comply with any applicable laws or regulations. This Product uses default values of 50psf/2kN/m2 and two working levels. It is your responsibility to modify these default values to appropriately match your conditions.
The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Product is licensed, not sold.
1. Grant of License. This Section of the License Agreement describes your limited rights to install and use the Product, as well as various restrictions on such rights. The license rights described in this Section are subject to all other terms and conditions of this License Agreement.
1.1 Installation, Copying and Use. During the term of this License Agreement, Avontus grants You a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to install one copy of the Product on a single computer, device, workstation, terminal, or other digital electronic or analog device (“Device”) for use by a single designated user solely for internal business purposes. From time to time, You may designate a new user of the Product in Your company in lieu of the prior designated user; provided, however, that at no time will You permit more than one user regularly to have access to the Product. If this Product contains documentation that is provided only in electronic form, You may print one copy of such electronic documentation. You may not copy the printed materials accompanying the Product.
1.2 No Network Use. You may not install a copy of the Product on a storage Device, such as a network server, and allow individuals within your business or enterprise to access and use the Product from other Devices over a private network. This license does not give You a right to allow anyone to access or use the Product over the Internet. A license for the Product may not be shared or used concurrently on different Devices.
1.3 Limited Evaluation License. If You have installed and are using the Product, but You or your company have not purchased a commercial version of the Product, your right to continued use of the Product may be limited by time, and the Program’s functionality may be limited to equipment and inventory that is part of a demonstration database provided by Avontus.
1.4 Other Licenses. Your use of content that may be accessed through use of the Product may require additional licenses — please consult the license agreement accompanying such content.
1.5 Reservation of Rights. All rights not expressly granted in this License Agreement are reserved by Avontus.
2. License Restrictions And Limitations.
2.1 Limitations. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of, the Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
2.2 Copy Protection. The Product may include copy protection technology to prevent the unauthorized copying of the Product. It is illegal to make unauthorized copies of the Product or to circumvent any copy protection technology included in the Product.
2.3 Notice of Remote Authentication; Data Storage and Remote Disabling Feature. The Product requires your computers to communicate with computers owned or operated by Avontus to verify authentication codes and to unlock that version of the Product. The process of unlocking the Product will include Avontus receiving from your computer, via electronic means, certain identifying information from that computer (such as operating system version and unique signature information). You hereby consent to the electronic transmission of such identifying information to Avontus, and You agree and consent to the storage of such information on Avontus’ owned or operated computer equipment. You further understand and agree that the Product periodically queries the Avontus authentication server to confirm license compliance, and this process does permit Avontus, in the event of a termination of this License Agreement, to remotely disable the operation of the Product.
2.4 Notice of Error and Feature Usage Reporting to Avontus. The Product will cause your computers to communicate with computers owned or operated by Avontus for purposes of transmitting error reports from crashes or defects within the Product and feature usage reports. Avontus will use such error reports and feature usage reports for improving our products and services.
2.5 Separation of Component Parts. The Product is licensed as a single product.
2.6 Trademarks. This License Agreement does not grant You any rights in connection with any trademarks or service marks of Avontus Software Corporation or any other entity whose software or content You may access through use of the Product.
2.7 No Rental, Leasing, Commercial Hosting, Transfer Or Sublicensing. Except as specifically permitted by Avontus in writing, You may not rent, lease, lend, transfer, sell, distribute or sublicense the Product, or otherwise provide commercial hosting services for the Product, to any third party.
3. Support Services. So long as You or your company have paid the applicable support fees, You will be entitled to receive support from Avontus. The terms of support are provided pursuant to an agreement that is separate from this License Agreement.
4. Term and Termination. The license and rights granted to You under this License Agreement shall remain in effect indefinitely. Notwithstanding the foregoing, and without prejudice to any other rights, Avontus may terminate this License Agreement if you fail to comply with the terms and conditions of this License Agreement. Upon any such termination of this License Agreement, You must destroy all copies of the Product and all of its component parts. Sections 5 through 15 shall survive termination of this Agreement.
5. Intellectual Property Rights. All title and intellectual property rights in and to the Product (including but not limited to any images, stencils, templates, shapes, AutoCAD® content, SmartShapes® symbols, photographs, animations, video, audio, music, text, and “applets” incorporated into the Product), the accompanying printed materials, and any copies of the Product are owned by Avontus or its suppliers. All title and intellectual property rights in and to the content that is not contained in the Product, but that may be accessed through use of the Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This License Agreement grants you no rights to use such content. Your use of such content may require additional licenses — please consult the license agreement accompanying such content.
6. U.S. Government License Rights. Any Product provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. Any Product provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (June 1987) or DFAR, 48 CFR 252.227-7013 (October 1988), as applicable.
7. Export Restrictions. You acknowledge that the Product is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. You agree to defend, indemnify and hold Avontus and its officers, employees and affiliates harmless from and against any claims or losses (including, without limitation, for attorney’s fees) arising from or related to your breach of this Section 7. This indemnity obligation shall continue in perpetuity in the event this License Agreement terminates for any reason.
8. Applicable Law.
(a) Alternative 1 – If You have paid for a Purchased License or for a Subscription License and such payment was made to Avontus Software Corporation in California, United States, then this Section 8(a) shall apply. These terms and conditions are governed by the laws of the State of California. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts located in San Francisco, California. The parties expressly submit themselves to the exclusive jurisdiction of such courts
(b) Alternative 2 – If You have paid for a Purchased License or for a Subscription License and such payment was made to Avontus Software Ltd in England, then this Section 8(b) shall apply. These terms and conditions are governed by the laws of the England. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts of England. The parties expressly submit themselves to the exclusive jurisdiction of such courts.
9. Limited Warranty. Avontus warrants that, for a period of thirty (30) days after You install the Product, the Product shall perform substantially according to any documentation provided with the Product provided, however, that in no event shall this limited warranty extend longer than fifteen (15) days after You purchase the Product. In the event of any breach of this limited warranty, Avontus shall refund the purchase price for the Product, in which case this License Agreement, and your rights to use the Product, immediately shall terminate. Upon such termination, You must destroy all copies of the Product and all of its component parts. This refund provision represents your sole and exclusive remedy for any breach of this limited warranty.
Any supplements or updates to the Product are provided to you “As Is” and with all faults and are not covered by any warranty or condition, express, implied or statutory.
10.Disclaimer of Warranties. The limited warranty that appears in Section 9 above is the only express warranty made to You with regard to the Product, and is provided in lieu of any other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regard to the Product.
The Product will not run in a Citrix, or hosted, environment as use of the Product is not permitted by multiple users.
11. Exclusion Of Incidental, Consequential And Certain Other Damages. To the maximum extent permitted by applicable law, in no event shall Avontus or its suppliers or You be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Product, the provision of or failure to provide Support Services, or otherwise under or in connection with any provision of this License Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Avontus or any supplier, and even if any party has been advised of the possibility of such damages.
12. Limitation Of Liability And Remedies. YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION, WHICH YOU SHOULD READ CAREFULLY.
(a) Alternative 1 – If Section 8(a) applies, then this Section 12(a) shall also apply. Except with respect to indemnification obligations set forth in Sections 5 and 11 and breaches of Section 2.1 and 2.6, notwithstanding any damages that You or Avontus might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Avontus and any of its suppliers for any claims arising from or related to your use of, or inability to use, the Product, or the provision of, or failure to provide, Support Services, and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by for the Product. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
(b) Alternative 2 – If Section 8(b) applies, then this Section 12(b) shall also apply. Except with respect to indemnification obligations set forth in Sections 5 and 11 and breaches of Section 2.1 and 2.6, nothing in this License Agreement shall limit or exclude Avontus’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession); (iv) breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession); or (v) defective products under the Consumer Protection Act 1987. Subject to the foregoing terms set out in this Section 12, Avontus shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this License Agreement; and Avontus’s total liability to You in respect of all other losses arising under or in connection with this License Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount actually paid by You for the Product. The terms implied by sections 13 to 15 of the Sale of Products Act 1979 and the terms implied by sections 3 to 5 of the Supply of Products and Services Act 1982 are, to the fullest extent permitted by law, excluded from this License Agreement.
13. Indemnity. The Product is provided to assist users in drawing scaffold and creating a bill of materials. However, neither Avontus nor its suppliers guarantees the accuracy or adequacy of any OUTPUTS produced by or through the Product, EITHER DIRECTLY OR INDIRECTLY THROUGH OTHER AVONTUS PRODUCTS. Subject to the indemnification obligations of Avontus described below and compliance by Avontus of the terms of this License Agreement, You agree to defend, indemnify and hold Avontus and its officers, employees and affiliates harmless from and against any claims or losses (including, without limitation, for attorney’s fees) arising from or related to any third party claims related to your use of the Product. Avontus agrees to indemnify, defend and hold harmless You from any suits, claims legal expenses, and the settlement amounts resulting from any third party claim asserting patent infringement arising from your purchase or use of the Product
14. Waivers of Subrogation. You and Avontus each waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees for damages or other causes of loss, whether or not such damages or other causes of loss are covered by insurance. A waiver of subrogation shall be effective as to a person or entity even though that person or entity that would otherwise have a duty of indemnification, contractual or otherwise, did not pay an insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
15. General. Avontus may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this License Agreement and may subcontract or delegate in any manner any or all of its obligations under this License Agreement to any third party. You shall not, without the prior written consent of Avontus or otherwise specifically permitted by this License Agreement, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this License Agreement. If any provision or part-provision of this License Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this section shall not affect the validity and enforceability of the rest of this License Agreement. If any provision or part-provision of this License Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. A waiver of any right under this License Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this License Agreement or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Nothing in this License Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, You or Avontus in any way. A person who is not a party to this License Agreement shall not have any rights to enforce its terms. Except as set out in this License Agreement, no variation of this License Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Avontus. This License Agreement is the entire agreement between You and Avontus relating to the Product and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this License Agreement. To the extent the terms of any Avontus policies or programs for support services conflict with the terms of this License Agreement, the terms of this License Agreement shall control.