APSDS End User Licence Agreement (EULA)

Pavement Science End User Licence Agreement (EULA)

This Agreement (‘Agreement’) is made between:

ARRB Group Ltd (ACN 004 620 651) trading as the National Transport Research Organisation (NTRO)
of 80A Turner Street, Port Melbourne, Victoria 3207 (“NTRO);

and

You (“Customer”)

together the Parties, and each a Party

BACKGROUND

A. The Customer requests and NTRO agrees to supply CIRCLY, APSDS or HIPAVE from the Pavement Science Software Suite and associated Support Services as follows.

The Parties Agree as Follows:

1. Definitions

1.1. In this Agreement, unless inconsistent with the context:
(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b) APSDS means the current version 5.0 of the APSDS software and any Corrective Release or New Major Version thereof.

(d) HIPAVE means the current version 5.0 of the HIPAVE software and any Corrective Release or New Major Version thereof.

(e) Clause means a clause of this Agreement.

(f) Confidential Information includes, without limitation, information relating to:

(i) the content, concept, design, listing, specification, algorithms of CIRCLY, APSDS and HIPAVE, including, without limitation, object and source codes, charts, diagrams, models and prototypes;

(ii) the personnel, customers, suppliers, policies and business strategies of NTRO;

(iii) materials marked proprietary or confidential; and

(iv) this Agreement and its terms.

(g) Corrective Release means a version of a product in the Pavement Science Software Suite supplied by NTRO pursuant to this Agreement and which fixes defects and is designated by NTRO in its sole discretion as a release which as numbers and or letters suffixed to the release number (e.g. 5.0e).

(h) Documentation means the printed and electronic documentation supplied with each product in the Pavement Science Software Suite from time to time by NTRO.

(i) Force Majeure means circumstances beyond the reasonable control of NTRO, which result in NTRO being unable to observe or perform on time an obligation under this Agreement.

(j) Functional Specifications means the specifications as set out in the Documentation.

(k) Intellectual Property Right includes, without limitation, any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Plant Breeder’s Rights Act 1994 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right; and Confidential Information.

(l) Interest means interest at the Penalty Interest Rate for the time being fixed under the Section 2 of Penalty Interest Rate Act 1983 (Vic).

(m) Moral Rights has the same meaning as “moral rights” under Section 189 of the Copyright Act 1968 (Cth).

(n) New Major Version means a version a product in the Pavement Science Software Suite supplied by NTRO pursuant to this Agreement which has new functionality and is designated by NTRO in its sole discretion as a release which has numbers prefixed to the decimal place (eg. 6.0).

(o) Party means a party to this Agreement and its successors, trustees and permitted assigns.

(p) Pavement Science Software Suite means the CIRCLY, APSDS and HIPAVE software products, each including their respective Corrective Releases and New Major Versions, as supplied by NTRO pursuant to this Agreement.

(q) Schedule means a schedule of this Agreement.

(r) Sub-clause means a sub-clause of this Agreement.

(s) Support Services means the support services provided by NTRO to the Customer pursuant to this Agreement at the rates specified on its website from time to time.

(t) Warranty Period means 3 months commencing from the execution of this Agreement.

Items appearing in bold type in the Schedules shall be interpreted as defined terms.

2. Interpretation

2.1. In this Agreement, unless inconsistent with the context:
(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b) Words denoting the singular number shall include the plural number and vice versa.

(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
Money references are references to Australian currency.

(e) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(f) Every obligation, covenant, Agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.

(g) No remedy, expressly granted to NTRO excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to NTRO.

(h) A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(i) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision, which shall be deemed deleted.

(j) The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and clauses of this Agreement; and thereafter in the order specified in the schedules, if any.

3. Licence grant

3.1. Subject to the terms and conditions of this Agreement, NTRO grants the Customer a non-transferable and non-exclusive licence to use the Pavement Science Software Suite for the Licence Period.
3.2. Each product within the Pavement Science Software Suite is licenced separately. You may install each such product on as many computers as you like, but you are not to operate each licenced product in the suite simultaneously on more than the maximum number of computers for which license fees have been paid.
3.3. If the Customer has purchased a perpetual licence then the Licence Period is perpetual;
3.4. If the Customer has purchased an annual licence then the Licence Period shall commence upon payment of the annual licence fee and shall expire one year later. The Customer may extend this period for further annual periods by payment of the appropriate licence fees. Should same not be paid then all the Customer’s rights to use each applicable product within the Pavement Science Software Suite shall lapse.
3.5. If the Customer has purchased a Floating Licence, you may install the Software on an unlimited number of machines. The number of users that may use the Software concurrently at any time must not exceed the number of Floating Licence Seats purchased for such use.
3.6. NTRO warrants it has the right and authority to grant the licence set out in Sub-clause 3.1 to the Customer.
4. Licence Conditions

4.1. The Customer may only use each product in the Pavement Science Software Suite in accordance with the normal operating procedures notified to it by NTRO.
4.2. Except to the extent expressly authorised by this Agreement, the Customer shall not copy, alter, modify, reproduce, reverse assemble or reverse compile or directly or indirectly allow or cause a third party to do same to the whole or any part of each product in the Pavement Science Software Suite .
4.3. In addition to other remedies available to NTRO under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of each product in the Pavement Science Software Suite shall entitle NTRO, without prejudice to any other right or remedy, to immediate injunctive relief.
5. Backup and Copying

5.1. The Customer may make backup copies of each product in the Pavement Science Software Suite for the purpose of backup and security only. The Customer acknowledges such copies are the property of NTRO. The backup copies may only be installed for use on another computer if the original computer is not operating. The terms of this Agreement, with the necessary modifications, apply to such backup copies.
6. Documentation

6.1. NTRO shall supply Documentation to the Customer.
6.2. Documentation is subject to the same restrictions on copying and modification as are imposed in respect of each product in the Pavement Science Software Suite, except for internal use by the customer for training or operational purposes for each product in the Pavement Science Software Suite.
7. Modifications

7.1. The Customer shall not modify or alter each product in the Pavement Science Software Suite or merge all or part of each product in the Pavement Science Software Suite with any other software without NTRO’s written permission which may be withheld in NTRO’s sole discretion.
7.2. If each product in the Pavement Science Software Suite is modified or altered by NTRO, or by the Customer with the permission of NTRO pursuant to Sub-clause 8.1:
(a) the costs associated with the modifications or alterations or the costs arising out of the investigation of the effects of such proposed modifications or alterations shall be borne solely by the Customer; and

(b) The Customer shall fully indemnify NTRO against all liability, which may be incurred by NTRO if such modifications or alterations infringe any Intellectual Property Right or otherwise cause NTRO to suffer loss, damage or expense.

7.3. This Agreement shall apply to each product in the Pavement Science Software Suite as modified or altered.
8. Security

8.1. The Customer shall be solely responsible for the use, supervision, management and control of each product in the Pavement Science Software Suite and Documentation.
8.2. The Customer shall ensure that each product in the Pavement Science Software Suite and Documentation are protected at all times from access, copying, use, or misuse, damage or destruction by any person not authorised by NTRO for that purpose.
9. Corrective Releases and New Major Versions

9.1. If the Customer has purchased a perpetual licence then the Customer shall be entitled to any Corrective Release published by NTRO during the Licence Period.
9.2. If the Customer has purchased an annual licence then the Customer shall be entitled to any Corrective Release published by NTRO during the Licence Period.
9.3. If the Customer has purchased an annual licence then the Customer shall be entitled to any New Release published by NTRO during the Licence Period.
9.4. NTRO is under no obligation to provide Corrective Releases or New Releases. In particular, but without limitation, Corrective Releases will not be made available for old Versions upon release of a New Major Version.
9.5. If NTRO releases a Corrective Release, the Customer shall promptly comply with a direction from NTRO to apply any applicable corrective release.
9.6. Notwithstanding any other provision of this Agreement, NTRO shall be under no liability to the Customer in the event of loss or damage suffered by the Customer as a result of the Customer’s failure to comply with this Clause, and the Customer shall indemnify NTRO in respect of any loss and damage suffered by NTRO as a result of the Customer’s failure to comply with this Clause.
10. Intellectual Property Rights

10.1. The Customer acknowledges that NTRO remains the sole owner of Intellectual Property Rights in each product within the Pavement Science Software Suite.
10.2. Further, the Customer shall assign to NTRO all Intellectual Property Rights arising out of any modifications or enhancements to each product in the Pavement Science Software Suite.
10.3. The Customer agrees not to assert its Moral Rights in relation to any modifications or enhancements to the any product within the Pavement Science Software Suite. The Customer shall procure a similar consent from its officers, employees, contractors and agents who were involved in the modification or enhancement of any product within the Pavement Science Software Suite.
10.4. The ownership in Sub-clause 11.1 and 11.2 shall be absolute, worldwide and include all Intellectual Property Rights arising from or in relation to each product in the Pavement Science Software Suite.
10.5. The Customer warrants that any materials supplied to NTRO by the Customer do not infringe the Intellectual Property Right of any person.
11. Limited Warranty

11.1. NTRO warrants that:
(a) it shall supply products within the Pavement Science Software Suite and Support Services with all due care and skill; and

(b) it shall correct any inherent defect in the Pavement Science Software Suite, which is notified to it within Warranty Period.

11.2. NTRO shall not be liable to correct any defect in the Pavement Science Software Suite if:
(a) the defect does not result in a material failure of a product in the Pavement Science Software Suite such that the product ceases to comply with Functional Specifications;

(b) the defect is the result of alterations or modifications to the Pavement Science Software Suite not authorised in writing by NTRO;

(c) the defect is the result of use of the Pavement Science Software Suite in combination with equipment, programs or services not authorised in writing by NTRO;

(d) the defect is the result of use of the Pavement Science Software Suite other than in the operating environment recommended by NTRO or other than in accordance with NTRO’s directions; or

(e) the defect is the result of the failure of the Customer to meet its obligations under this Agreement or any other agreement relating to the Pavement Science Software Suite.

11.3. NTRO does not warrant that:
(a) the use of the products in the Pavement Science Software Suite shall be uninterrupted;

(b) the Pavement Science Software Suite shall meet the Customer’s requirements;

(c) products in the Pavement Science Software Suite is fit for any purpose, apart from those purposes listed in Functional Specifications;

(d) products in the Pavement Science Software Suite shall provide any function not specified in Functional Specifications; or

(e) products in the Pavement Science Software Suite are error free or virus free;

11.4. If NTRO investigates a defect notified to it by the Customer and NTRO is of the opinion that it is not obliged to correct the defect or that no such defect existed then additional fees are payable by the Customer for any such investigation.
11.5. The Customer warrants that it shall upon delivery conduct such tests and virus scanning as may be necessary, prior to the use of products in the Pavement Science Software Suite, to ensure that the product does not contain any virus and that the use of products in the Pavement Science Software Suite do not in any way corrupt the Customer’s data or systems or those of any other person.
11.6. NTRO cannot state and does not state whether or not products in the Pavement Science Software Suite shall work in the environment or at the times other than for which each software product was expressly designed and tested.
11.7. NTRO shall re-supply any product in the Pavement Science Software Suite and Support Services which are not supplied in accordance with this Clause 12, provided that the Customer notifies NTRO of the same within a reasonable time of the supply of any product in the Pavement Science Software Suite and Support Services. This remedy shall be the Customer’s sole and exclusive remedy for breach of this Clause.
11.8. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by the Competition and Consumer Act 2010 (Cth) or any other applicable legislation which cannot lawfully be excluded, restricted or modified.
12. Support Duration

12.1. Support Services shall be provided by NTRO to the Customer as specified on NTRO’s website from time to time.
12.2. Support Services shall, at the sole option of NTRO, take the form of:
(a) email advice;

(b) telephone advice;

(d) error correction by means of modem

(e) providing support by way of making information and computer programs available to the Customer on NTRO’s website (when and if available); and

(f) other attendances as are appropriate in the sole opinion of NTRO.

12.3. Immediately after making a request for Support Services, which may involve error correction or program modification, the Customer shall give NTRO a documented example of the defect or error.
12.4. If NTRO investigates a defect notified to it by the Customer and NTRO is of the opinion that it is not obliged to correct the defect or that no such defect existed then additional fees are payable by the Customer for any such investigation.
13. Support Availability

13.1. NTRO shall provide Support Services during the times set out on NTRO’s website.
13.2. A request for Support Services shall be acknowledged, but not necessarily completed, within 1 working day.
13.3. NTRO does not warrant that it shall be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside the times set out on NTRO’s website.
14. Exclusions

14.1. Support Services to be provided by NTRO under this Agreement do not include:
(a) on-site attendance;

(b) correction of errors or defects caused by operation of products in the Pavement Science Software Suite in a manner other than that currently specified by NTRO;

(c) correction of errors or defects caused by modification, revision, variation, translation or alteration of products in the Pavement Science Software Suite not authorised by NTRO;

(d) correction of errors or defects caused by the use of products in the Pavement Science Software Suite by a person not authorised by NTRO;

(e) correction of errors caused in whole or in part by the use of computer programs other than a product in the Pavement Science Software Suite;

(f) correction of errors caused by the failure of the Customer to provide suitability qualified and adequately trained operating and programming staff for the operation of products in the Pavement Science Software Suite;

(g) training of operating or programming staff;

(h) rectification of operator errors;

(i) rectification of errors caused by incorrect use of products in the Pavement Science Software Suite;

(j) rectification of errors caused by an equipment fault;

(k) equipment maintenance;

(l) diagnosis or rectification of faults not associated with products in the Pavement Science Software Suite;

(m) providing or maintaining accessories, attachments, supplies, consumable or associated items, whether or not manufactured or distributed by NTRO;

(n) correction of errors arising directly or indirectly out of the Customer’s failure to comply with this Agreement or any other agreement with NTRO;

(o) correction of errors or defects which are the subject of warranty under another agreement; and

(p) installation and integration of updates or New Major Versions.

14.2. NTRO may, without obligation to do so, supply such goods or services referred to in Sub-clause 14.1. The Customer shall pay NTRO additional fees or such other amounts as may be agreed for such goods and services so supplied.
15. Backup

15.1. The Customer is responsible for ensuring that all data (including without limitation each product from the Pavement Science Software Suite) is adequately backed up at all times (including, without limitation, prior to Support Services being supplied).
16. Educational Use

16.1. If the Customer pays a licence fee which is designated as an “Educational Use Only” licence fee rather than the ordinary fees payable for such a licence, then the following provisions shall apply:
(a) The Customer’s licence granted pursuant to this End User Licence Agreement is limited to use for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution; and

(b) The Customer’s licence does not extend to commercial use in any way.

17. Fees

17.1. Subject to the Customer receiving a valid/correct invoice and such invoice being agreed, the Customer shall pay to NTRO without withholding, deduction or offset of any amounts for any purpose all applicable licence and Support Services fees.
17.2. NTRO may increase its fees at any time upon 30 days’ notice to the Customer.
17.3. The Customer shall pay NTRO Interest on all overdue amounts from the due date until payment is made.
17.4. If any payment owing to NTRO is not made within 7 days of the due date, NTRO may, on 7 days notice to the Customer, suspend further services or its remaining obligations to the Customer under this Agreement.
18. Confidential Information

18.1. To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by the Customer at the time of disclosure:
(a) The Customer shall keep Confidential Information confidential;

(b) The Customer shall not directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;

(d) The Customer shall take all necessary precautions to prevent any disclosure of any Confidential Information to unauthorised third parties and shall inform NTRO of any suspected or actual disclosure of Confidential Information.

18.2. The Customer shall not remove or cause to be removed from NTRO’s, its clients’ or its business partners’ premises any Confidential Information without prior written consent from NTRO.
19. Exclusions and Limitation of Liability

19.1. To the maximum extent permitted by law all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement.
However, the liability of NTRO for any breach of such term shall be limited, at the option of NTRO, to any one or more of the following:
(a) if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and

(b) if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.

19.2. To the maximum extent permitted by law and subject only subject only to the warranties and remedies set out in Clause 11 and Sub-clause 21.1, NTRO shall not be under any liability (contractual, tortious or otherwise) to the Customer in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the act, failure or omission of NTRO.
19.3. The Customer warrants that it has not relied on any representation made by NTRO or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by NTRO.
19.4. Notwithstanding anything else in this Agreement, NTRO’s aggregate liability for all claims arising out of or in connection with this Agreement shall not exceed an amount equal to the fees paid by the Customer under this Agreement in the 12 months preceding the claim.
20. Acknowledgement

20.1. The Customer acknowledges and agrees that:
(a) pavement design and engineering is a complex area and that products in the Pavement Science Software Suite are not designed as a substitute in any way for professional advice;

(b) products in the Pavement Science Software Suite are supplied with certain operating instructions and a failure to follow these instructions carefully could result in erroneous data being produced by the product;

(c) Whilst products in the Pavement Science Software Suite may be used by persons without a detailed knowledge of computers, each product in the Pavement Science Software Suite is designed to be used by persons who have a detailed knowledge of, without limitation:

(v) the applicable Pavement engineering standards; and

(vi) All appropriate legislation and other relevant instruments, including, without limitation the relevant industry recognised engineering design guides;

(d) They shall manually check all results provided by the software product for any anomalies; and

(e) They shall obtain professional advice in relation to all results provided by any products in the Pavement Science Software Suite.

20.2. Each product in the Pavement Science Software Suite is separately licensed on the basis set out in this Agreement on the understanding that to the extent permitted by law NTRO is not responsible for the results of any actions taken, either by the Customer or a third party relying on figures supplied or not supplied by the software product.
21. Indemnity

21.1. The Customer warrants that any materials supplied to NTRO by the Customer do not infringe Intellectual Property Right of any person.
21.2. To the extent permitted by law, the Customer shall fully indemnify and keep indemnified NTRO, its officers, employees and agents, against any loss, costs, expenses, demands, taxes or liability whether direct or indirect arising out of:
(a) use of each product in the Pavement Science Software Suite;

(b) a breach of this agreement by the Customer; or

22. Termination

22.1. Without limiting the generality of any other clause in this Agreement, NTRO may terminate this Agreement immediately by notice in writing if:
(a) The Customer breaches any Clause and such breach is not remedied within 14 days of written notice by NTRO;

(b) The Customer disposes of a product in the Pavement Science Software Suite, or is otherwise no longer capable of complying with its obligations under this Agreement; or

(c) The Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; the Customer being a natural person, dies; or the Customer ceases or threatens to cease conducting its business in the normal manner.

22.2. If notice is given to the Customer pursuant to Sub-clause 24.1 NTRO may, in addition to terminating this Agreement:
(a) repossess any copies of products in the Pavement Science Software Suite in the possession, custody or control of the Customer;

(b) retain any moneys paid;

(d) be regarded as discharged from any further obligations under this Agreement; and

(e) pursue any additional or alternative remedies provided by law.

22.3. Upon termination of this Agreement, the Customer shall immediately on request furnish NTRO with written notification that any products in the Pavement Science Software Suite and Documentation have been returned to NTRO or otherwise disposed of at the direction of NTRO.
22.4. The Customer may upon 30 days notice terminate this Agreement and in such an event shall not be entitled to any refund.
23. Survival

23.1. The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
24. Force Majeure

24.1. NTRO shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
25. Assignment, Novation and Sub-Contracts

25.1. NTRO may sub-contract for the performance or part performance of this Agreement.
25.2. This Agreement shall not be dealt with in any way by the Customer (whether by assignment, novation, sub-licensing or otherwise) without NTRO’s written consent.
26. Waiver

26.1. No right of NTRO under this Agreement shall be deemed to be waived except by notice in writing signed by NTRO. Such a waiver by NTRO shall not prejudice its rights in respect of any subsequent breach of this Agreement by the Customer.
26.2. Any express statement of a right of NTRO under this Agreement is without prejudice to any other right of NTRO expressly stated in this Agreement or arising at law.
27. Governing Law

27.1. This Agreement shall be governed by and construed according to the law of the State of Victoria.
27.2. The Parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia and any courts hearing appeals from such courts. Any proceedings in a Commonwealth court shall be commenced in Victoria.
28. Notices

28.1. Notices under this Agreement may be delivered by hand, by mail, or by email.
29. Entire Agreement

29.1. This Agreement constitutes the entire agreement between the parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded.
29.2. This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties and neither Party may represent such. Under no circumstances may any Party obligate or bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority.