DesignBuilder Software Licence
This is a copy of the software Licence agreement that you agree to when you install DesignBuilder.
BEFORE YOU CLICK ON THE "ACCEPT" BUTTON BELOW THIS DOCUMENT AND INSTALL THE SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENCE. BY CLICKING ON THE "ACCEPT" BUTTON AND BY INSTALLING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING THE LICENSEE TO THIS LICENCE FROM THE DATE OF INSTALLATION (INCLUDING ANY EVALUATION PERIOD). IF YOU DO NOT AGREE TO ALL OF THE RELEVANT TERMS OF THIS LICENCE, CLICK THE "DO NOT ACCEPT" BUTTON AND DO NOT INSTALL OR USE THE SOFTWARE.
FOR THE AVOIDANCE OF DOUBT THE SOFTWARE IS NOT FREE OR SHAREWARE.
YOUR ATTENTION IS EXPRESSLY DRAWN TO THE PROVISIONS OF CLAUSE 6 WHICH PROVIDE FOR LIMITATIONS ON OUR LIABILITY.
In this Licence unless the context otherwise requires:
"Acceptance" means the latter of the date upon which the Licensee i) installs the Software and ii) pays the appropriate Licence Fee whereupon an encrypted key code will be sent to the Licensee which permits access to the Software for the appropriate period and an e-mail confirmation will be sent confirming the number of Users purchased and the term "Accept" shall be construed accordingly.
"Additional Fee" means the charges at the Licensor's standard rates from time to time in force on a time and materials basis plus all expenses incurred thereto.
"Evaluation Period" means the date on which the Software is installed onto the System up until the earlier of i) the date immediately prior to Acceptance and ii) the expiry of 30 days from the date of installation.
"Licence Fee" means the fee payable by the Licensee for this Licence to use the Software in conjunction with the System for the number of permitted Users as set out in the Licensor's standard rates from time to time in force.
"Licence Period" means the period from the date of installation of the Software unless or until terminated in accordance with clause 9 save where such requested licence is an annual licence in which case the period shall be from the end of the calendar month in which the Software is Accepted until the expiry of the 12 months from that date For the avoidance of doubt the Evaluation Period shall not form part of this period.
"Licensor" means Designbuilder Software Limited of Stroud House, Russell Street, Stroud, Gloucestershire, GL5 3AN, UK.
"New Release" means any improved modified corrected or enhanced version of the Software that is from time to time offered for use to the Licensee.
"Software" means the relevant module requested in relation to the product know as Designbuilder including electronic associated documentation and any New Release.
"Specified Purpose" means the use of the Software in conjunction with the Systems for the permitted number of concurrent Users to provide thermal modelling simulation and visualisation data.
"System" means a compatible computer system (including network server or like equipment) in conjunction with a suitable graphics adaptor with full Open GL Compatibility and a web browser or secure browser necessary to install, configure and use the Software in accordance with this Licence and the term "Systems" shall be construed accordingly".
"Users" means the maximum number of concurrent users that are permitted to use the Software in conjunction with one or more Systems as detailed in confirmation that will be emailed to you following payment of the appropriate Licence Fee which number of users may from time to time be increased upon receipt in full by the Licensor of the appropriate additional fee and the corresponding e-mail confirmation being forwarded back to the Licensee detailing the number of users then permitted in accordance with the terms of this Licence .
- GRANT OF LICENSE
- Upon Acceptance the Licensor grants the Licensee a non-transferable non-exclusive licence to Use (as hereinafter defined) the Software on the Systems for the Users Provided Always That the Licensee shall only be entitled to Use the Software for the maximum number of concurrent users purchased at that time. Single user licences allow a maximum of 1 activation at any one time.
- Prior to Acceptance and for the duration of the Evaluation Period only the Licensee shall on a non transferable non exclusive basis be entitled to Use the Software on a single User basis on the System but that during such period Software is provided as is without warranty or any kind either express or implied (to the maximum extent permitted by law).
- LICENCE FEE
- The Licensee shall pay the Licensor the Licence Fee upon agreement by the Licensee to purchase the licence referred to in this Agreement.
- The Licence Fee is exclusive of Value Added Tax, import and all other duties and the Licensee shall pay at the rate on the date when supplied with the goods and/or services and in the manner prescribed by law from time to time.
- In the event that the Licensee shall fail to make payment of the Licence Fee when due under this Agreement, the Licensor shall have the right, in addition to other rights and remedies available to it, to charge interest (before as well as after judgement) on the outstanding amount at the rate of 4 per cent per annum above the Bank of England base rate from time to time in force from the due date until actual payment.
- For the avoidance of doubt where the Licensee has purchased this Licence for more than one User in accordance with the terms set out herein there shall be no refund of any part of the Licence Fee if the Licensee subsequently decides not to use all the Users paid for.
- ISSUE AND USE OF SOFTWARE AND LICENSEE'S UNDERTAKINGS
- For the purposes of this Licence, "Use" shall mean and include:
- (a) Utilisation of the Software by copying transmitting or loading the same into permanent memory (e.g. hard disc CD ROM or other similar storage devise) of such part of the System for processing of the System instructions or statements contained in such Software; and
- the copying of the Software which is in machine-readable form for Use by the Licensee on such part of the System for the purposes only of understanding the contents of such machine-readable material and for back-up;
Provided That no more copies will be in existence under any Licence at any one time than contemplated under the provisions of clause 1.1 without prior written consent from the Licensor or as otherwise permitted by law.
- using the Software on the Systems for the Specified Purpose only.
- The Licensee undertakes not to perform any of the acts referred to in subclause 3 except to the extent and only to the extent permitted by law and only then for the specific limited purposes stated in such applicable law or herein contained.
- The Licensee undertakes:
- not to copy the Software otherwise in accordance with Clause 1 above;
- not to translate, adapt, vary, modify, lease, rent, loan, redistribute, sublease, sublicense or create derivative works from the Software;
- not to disassemble, decompile or reverse engineer the Software save to the extent permitted by law;
- not to provide or otherwise make available the Software to any person other than the Licensee's employees without prior written consent from the Licensor;
- not to display the Software on a public bulletin board, file transfer protocol site, word wide web site, chat room or by any other unauthorised means;
- not to use the Software for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, trojan horse, cancelbot or any other destructive or contaminating program;
- not to use the Software in conjunction with any hardware and or software in an environment of a hazardous nature requiring failsafe performance which shall (without limitation) include the operation of communication systems, air traffic control direct line support machines or such other similar high risk environments;
- In addition, the Licensee undertakes:
- to maintain accurate and up-to-date records of the number and location of all copies of the Software;
- to supervise and control Use of the Software in accordance with the terms of this Licence;
- to ensure that its employees, agents and other parties who will Use the Software are notified of this Licence and the terms hereof prior to such employee, agent or party using the same.
- to reproduce and include the copyright notice or confidentiality or proprietary legends of the Licensor as it appears in or on the Software on all copies;
- within fourteen (14) days after the date of termination or discontinuance of this Licence for whatever reason, to return or destroy (as the Licensor shall instruct) the Software and all updates, upgrades or copies.
- when using the Software to comply with all reasonable and proper stipulations requests, terms and conditions formalities and/or otherwise on any third parties' web sites from time to time in force.
- when using the Software to comply with all applicable laws and regulations from time to time in force in any relevant territory or environment to which the use of the Software in conjunction with the System may be subject to.
- to keep track of their licence and activations and deactivate their licence before any resets, hard disk wiping, new software installation etc. The licensor reserves the right to charge for any extra activations requested as a result of not deactivating the licence in such cases.
- For the purposes of this Licence, "Use" shall mean and include:
- During the Licence Period the Licensor shall;
- provide advice by email and/or online on the Use of the Software; and
- use all reasonable endeavours (by e-mail or online only) to respond to any request relating to the diagnosis of faults in the Software and the rectification of such faults.
- at the Licensor's sole discretion from time to time issue fixes in respect of faults communicated to the Licensor in relation to the Software.
- at the Licensor's sole discretion issue a New Release.
Provided always where the Licensee has licensed the Software on an annual, basis the rights to support referred to in this clause 4 shall cease 12 months after Acceptance.
- The Licensor may continue to provide support referred to in clause 1 above notwithstanding that the support arises (directly or indirectly) as a result of circumstances described in clause 5.3 below. The Licensor shall in such circumstances be entitled to levy an Additional Fee in accordance with this clause 4.4.
- Without prejudice to clause 2 the Licensor shall be entitled to levy an Additional Fee in the manner set out in clause 4.4 if support referred to in clause 4.1 above is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee's request to have been unnecessary.
- An Additional Fee shall be levied by the Licensor monthly in arrears and shall be payable by the Licensee (together with value added tax thereon) within 30 days of receipt of an invoice therefore. In the event that the Licensee shall fail to make payment of the Additional Fee (in whole or part) when due under this Agreement, the Licensor shall have the right, in addition to other rights and remedies available to it, to charge interest (before as well as after judgement) on the outstanding amount at the rate of 4% per annum above the base rate of Lloyds TSB Bank Plc from time to time in force from the due date until actual payment.
- The Licensor will only provide support for the current and immediately previous major release versions.
- The limitation of liability for technical support, consultancy or training in connection with the Software is as stated in 2.
- During the Licence Period the Licensor shall;
- Subject to the limitations upon its liability in clause 6, and the provisos in this clause 5 in the event that the Licensee discovers a material error in the Software which substantially alters the Licensee's Use of the same within 45 days of Acceptance and notifies the Licensor within that time the Licensor shall at its sole discretion and option either refund the Licence Fee (or part thereof) actually paid or use its reasonable endeavours to correct by patch or new release that part of the Software that does not so comply although no warranty is given in relation to the Software use in conjunction with any external hardware or software.
- The Licensor does not warrant that the use of the Software, or any part or parts thereof shall be uninterrupted or error free.
- The Licensor shall have no liability to remedy any breach of warranty under clause 5 or be obliged to provide support services referred to in clause 1 above where the breach or support (where relevant) arises as a result of any of the circumstances of the following:
- The improper use, operation or neglect of the Software or the System (or any part of it) by the Licensee.
- The unauthorised modification of the Software or the System or their merger (in whole or in part) with any other software and/or hardware.
- The use of the Software on equipment other than the System.
- Failure by The Licensee to implement the reasonable recommendations in respect of all solutions to the Software previously advised by the Licensee.
- Any repair, alteration or modification of the Software by any person other than the Licensor without the Licensors prior written consent.
- The Licensee's failure to install the Software properly.
- The use of the Software for any purpose for which it was not designed.
- errors in the installation of the Software on to the System other than in accordance with the reasonable instructions of the Licensor.
- the importation of viruses from the System or other equipment used in conjunction with the Software.
- any malfunction caused by fluctuations in the power supply to the System or Software or such other external causes which are beyond the Licensor's control.
- any breach by the Licensee of the terms and conditions requests or formalities of any third parties website.
- any breach of any applicable laws and regulations in any relevant territory or environment to which the use of the Software in conjunction with the System may be subject to.
- Subject to the foregoing all conditions warranties terms and undertakings express or implied or otherwise in respect of the Software are hereby excluded to the maximum extent permitted by law.
- LIMITATION OF LIABILITY
- To enable the Licensor to provide the Software under this Licence for the respective price, the Licensor excludes liability for certain types of loss or damage and places a limit on its liability to the Licensee. Further, the Licensor shall have no liability unless the Licensee has issued proceedings against the Licensor within 90 days of the Licensee becoming aware of the circumstances giving rise to the cause of action, or the date when it ought reasonably to have become aware.
- Subject to the remaining provisions of clause 6 the Licensee agrees that the Licensor's total aggregate liability in respect of all breaches and claims either in contract, tort (including negligence) or otherwise, arising out of or in connection with the Software or the provision of technical support, consultancy or training in connection with the Software, shall not exceed the Licence Fee paid by Licensee for the Software (where the Licence Fee has been paid in full) or (at the Licensor's option) replacement of the Software.
- The Licensor shall not be liable in any event for:
- loss of use or corruption of the Software in whole or part; or
- loss or corruption of data or information; or
- loss of profits, sales, business, or revenue; or
- business interruption; or
- loss of anticipated savings; or
- loss of business opportunity, goodwill or reputation; or
- loss arising directly or indirectly from the designs, specifications and information generated from use of the Software or the provision of technical support, consultancy or training in connection with the Software or the output or consequences of any of the foregoing; or
- for any indirect, special, incidental, consequential or economic loss or damage.
- The Licensee hereby agrees to afford the Licensor not less than 60 days (following written notification thereof by the Licensee) in which to remedy any breach of warranty hereunder.
- The above limitations shall not apply to death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
- Each of the foregoing provisions is a separate limitation which shall apply and survive even if, for any reason, one or other of them is held inapplicable or unreasonable in any circumstances.
- The restrictions on liability in this clause 6 apply to every liability arising under or in connection with the Licence including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- INTELLECTUAL PROPERTY RIGHTS
- The Licensee acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto (in whatever format), are and shall remain the sole property of the Licensor. The Licensee shall not during or at any time after the expiry or termination of this Licence in any way question or dispute the ownership by the Licensor thereof.
- In the event that any new intellectual property rights are created, evolved or added to or arise out of the use of the Software by the licensee, the Licensee acknowledges that the same shall be the absolute property of the Licensor unless otherwise agreed in writing by the Licensor and the Licensee shall do all things necessary in order to comply with this clause 7.
- The Licensee shall indemnify the Licensor against all costs, damages, or expenses arising from the unauthorised Use of Software as set out in the Licence.
- If at any time an allegation of infringement of copyright or of any other intellectual property right is made or likely to be made by a third party with regard to the Software the Licensor may at its own expense modify or replace the Software so as to avoid the infringement without detracting from material compliance with the supporting documentation.
- The Licensee shall promptly notify the Licensor of any improper use of the Software or any infringement of the intellectual property rights therein which comes to the Licensee's notice and will give the Licensor such reasonable assistance as it may require to restrain such improper use or infringement.
- CONFIDENTIAL INFORMATION
- All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Licence and that it shall not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without the Licensor's prior written consent.
- The Licensee agrees that it shall not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor shall the Licensee sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any Software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.
- The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.
- This Licence may be terminated:
- forthwith by the Licensor if the Licensee is in material breach of this Licence in which case the Licensee must immediately comply with clause 4.5;
- forthwith by the Licensee destroying the Software documentation and all copies. For the avoidance of doubt no refund of any part of the Licence Fee shall be payable and furthermore where the licence acquired by the Licensee is an annual licence the Licensee shall be required to notify the Licensor that it has destroyed the Software and terminated the Licence provided always that if the Licensee shall not have notified the Licensor prior to the start of the next anniversary period of the installation date that the Licensee shall become obliged to pay the License fee for the current anniversary period.
- forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
- The rights of the Licensee to Use the Software shall cease upon the expiry of the Licence Period.
- Termination of this Licence or part thereof shall not prejudice the rights of the parties which may have arisen on or before the date of termination.
- Any provision of this Licence that expressly or by implication is intended to survive termination, shall continue in force.
- This Licence may be terminated:
- The Licensee may not assign or transfer the whole or any part of its rights, benefits or obligations under this Licence.
- The Licensor may assign or subcontract this Licence and the rights and obligations contained herein.
- Force majeure
Either party shall be under no liability for any delay or failure to perform all or any part of its obligations hereunder if such delay or failure shall be due to acts of God, strikes, lockouts, labour disputes, statute, other or any regulation or any government, public, local or other authority.
- Alteration of agreement
No alteration, modification or addition to this Licence nor any waiver of any of the terms hereof shall be valid unless made in writing and signed by the duly authorised representatives of both parties.
- Waiver of terms
Failure by either party at any time to require the performance of any provision of this Licence shall not effect the right of such party to require full performance thereof at any time thereafter and the waiver by either party of any breach of any such provisions of this Licence shall not be taken or held to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of any such provision or any way prejudicing such party's right hereunder.
If any part of any provision of this Licence shall be to any extent invalid or unenforceable that shall not affect the validity or enforceability of the remainder of such provision or any other provision hereof.
- The clause headings in this Licence are inserted for ease of reference only and shall not affect and the construction and interpretation of this Licence.
- References to "this Licence" or to any other document or agreement referred to in this Licence shall mean this Licence and includes the Schedule.
- Third Party Rights
Save as set out herein it is not intended that a third party has a right to enforce a provision of this Licence under the Contracts (Rights of Third Parties) Act 1999.
- Relationship of the parties
Nothing in this Licence shall be deemed to constitute a partnership between the parties and neither party shall have authority to bind the other without the prior written approval of the other in each and every case.
- Company Name and Logo
The customer agrees to their company name and logo being used in lists of DesignBuilder end users for marketing purposes but has the right to refuse that permission in which case they will not be used.
- Whole agreement
This Licence and the attached Schedules shall form the entire agreement between the Licensee and the Licensor and supersedes all prior oral or written proposals and all other related communications. No variation of this Licence shall take effect unless agreed between Licensee and the Licensor in writing.
All notices shall be in writing:
- to the Licensor and sent to the address indicated on the front page of the Licence and to the Licensee to the address, details of which have been provided when giving payment details or such other address as shall be notified by either party from time to time on.
- Any notice should be sufficiently served if it is sent either by registered or recorded delivery first class post to the other party.
This Licence shall be governed by English law and the parties shall submit to the non-exclusive jurisdiction of the English courts.
-- END OF LICENCE --