APSDS End User Licence Agreement (EULA)

APSDS End User Licence Agreement

This Agreement is made between:
1. Mincad Systems Pty Ltd ABN 27 006 782 832 of PO BOX 2114 RICHMOND SOUTH VIC 3121 (“Mincad”); and
2. You (“Customer”)
Customer requests and Mincad agrees to supply APSDS and Support Services 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 APSDS software and any Corrective Release or New Major Version..
(c) Clause means a clause of this Agreement.
(d) Confidential Information includes, without limitation, information relating to:
(i) the content, concept, design, listing, specification, algorithms of APSDS including, without limitation, object and source codes, charts, diagrams, models and prototypes;
(ii) the personnel, customers, suppliers, policies and business strategies of Mincad;
(iii) materials marked proprietary or confidential; and
(iv) this Agreement and its terms.
(e) Corrective Release means a version of APSDS supplied by Mincad pursuant to this Agreement and which fixes defects and is designated by Mincad in its sole discretion as a release which as numbers and or letters suffixed to the release number. e.g. 5.0e
(f) Documentation means the printed and electronic documentation supplied with APSDS from time to time by Mincad.
(g) Force Majeure means circumstances beyond the reasonable control of Mincad, which result in Mincad being unable to observe or perform on time an obligation under this Agreement.
(h) Functional Specifications means the specifications as set out in the Documentation.
(i) 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.
(j) Interest means interest at the Penalty Interest Rate for the time being fixed under the Section 2 of Penalty Interest Rate Act 1983 (Vic).
(k) Moral Rights has the same meaning as “moral rights” under Section 189 of the Copyright Act 1968 (Cth).
(l) New Major Version means a version of APSDS supplied by Mincad pursuant to this Agreement which has new functionality and is designated by Mincad in its sole discretion as a release which has numbers prefixed to the decimal place. eg. 6.0
(m) Party means a party to this Agreement and its successors, trustees and permitted assigns.
(n) Schedule means a schedule of this Agreement.
(o) Sub-clause means a sub-clause of this Agreement.
(p) Support Services means the support services provided by Mincad to Customer pursuant to this Agreement at the rates specified on its website from time to time.
(q) Warranty Period means 3 months commencing from the execution of this Agreement
(r) 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.
(c) Words denoting any gender shall include all other genders.
(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
(e) Money references are references to Australian currency.
(f) 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.
(g) 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.
(h) No remedy, expressly granted to Mincad excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Mincad.
(i) A provision of this Agreement shall not be construed adversely to the Party that drafted it.
(j) 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.
(k) 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, Mincad grants Customer a non-transferable and non-exclusive licence to use APSDS for the Licence Period.
3.2 You may install the APSDS software on as many computers as you like, but you are not to operate APSDS 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 Customer’s rights to use APSDS 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 Mincad warrants it has the right and authority to grant the licence set out in Sub-clause 3.1 to Customer.
4. Licence Conditions
4.1 Customer may only use APSDS in accordance with the normal operating procedures notified to it by Mincad.
4.2 Except to the extent expressly authorised by this Agreement, 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 APSDS.
4.3 In addition to other remedies available to Mincad under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of APSDS shall entitle Mincad, without prejudice to any other right or remedy, to immediate injunctive relief.
5. Backup and Copying
5.1 Customer may make backup copies of APSDS for the purpose of backup and security only. Customer acknowledges such copies are the property of Mincad. 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 Mincad shall supply Documentation to Customer.
6.2 Documentation is subject to the same restrictions on copying and modification as are imposed in respect of APSDS and shall not be used by Customer except to assist in the normal operation of APSDS.
7. Modifications
7.1 Customer shall not modify or alter APSDS or merge all or part of APSDS with any other software without Mincad’s written permission which may be withheld in Mincad’s sole discretion.
7.2 If APSDS is modified or altered by Mincad, or by Customer with the permission of Mincad 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 Customer; and
(b) Customer shall fully indemnify Mincad against all liability, which may be incurred by Mincad if such modifications or alterations infringe any Intellectual Property Right or otherwise cause Mincad to suffer loss, damage or expense.
7.3 This Agreement shall apply to APSDS as modified or altered.
8. Security
8.1 Customer shall be solely responsible for the use, supervision, management and control of APSDS and Documentation.
8.2 Customer shall ensure that APSDS and Documentation are protected at all times from access, copying, use, or misuse, damage or destruction by any person not authorised by Mincad 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 Mincad 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 Mincad 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 Mincad during the Licence Period.
9.4 Mincad 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 Mincad releases a Corrective Release, Customer shall promptly comply with a direction from Mincad to apply any corrective release.
9.6 Notwithstanding any other provision of this Agreement, Mincad shall be under no liability to Customer in the event of loss or damage suffered by Customer as a result of Customer’s failure to comply with this Clause, and Customer shall indemnify Mincad in respect of any loss and damage suffered by Mincad as a result of Customer’s failure to comply with this Clause.
10. Intellectual Property Rights
10.1 Customer acknowledges that Mincad remains the sole owner of Intellectual Property Rights in APSDS.
10.2 Further, Customer shall assign to Mincad all Intellectual Property Rights arising out of any modifications or enhancements to APSDS.
10.3 Customer agrees not to assert its Moral Rights in relation to any modifications or enhancements to the APSDS. Customer shall procure a similar consent from its officers, employees, contractors and agents who were involved in the modification or enhancement of the APSDS.
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 APSDS.
10.5 Customer warrants that any materials supplied to Mincad by Customer do not infringe the Intellectual Property Right of any person.
11. Limited Warranty
11.1 Mincad warrants that:
(a) it shall supply APSDS and Support Services with all due care and skill; and
(b) it shall correct any inherent defect in APSDS, which is notified to it within Warranty Period.
11.2 Mincad shall not be liable to correct any defect in APSDS if:
(a) the defect does not result in a material failure of APSDS such that APSDS ceases to comply with Functional Specifications;
(b) the defect is the result of alterations or modifications to APSDS not authorised in writing by Mincad;
(c) the defect is the result of use of APSDS in combination with equipment, programs or services not authorised in writing by Mincad;
(d) the defect is the result of use of APSDS other than in the operating environment recommended by Mincad or other than in accordance with Mincad’s directions; or
(e) the defect is the result of the failure of Customer to meet its obligations under this Agreement or any other agreement relating to APSDS.
11.3 Mincad does not warrant that:
(a) the use of APSDS shall be uninterrupted;
(b) APSDS shall meet Customer’s requirements;
(c) APSDS is fit for any purpose, apart from those purposes listed in Functional Specifications;
(d) APSDS shall provide any function not specified in Functional Specifications; or
(e) APSDS is error free or virus free;
11.4 If Mincad investigates a defect notified to it by Customer and Mincad 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 Customer for any such investigation.
11.5 Customer warrants that it shall upon delivery conduct such tests and virus scanning as may be necessary, prior to the use of APSDS, to ensure that APSDS does not contain any virus and that the use of APSDS does not in any way corrupt Customer’s data or systems or those of any other person.
11.6 Mincad cannot state and does not state whether or not APSDS shall work in the environment or at the times other than for which APSDS was expressly designed and tested.
11.7 Mincad shall re-supply any APSDS and Support Services which are not supplied in accordance with this Clause 12 provided that Customer notifies Mincad of same within a reasonable time of the supply of APSDS and Support Services. This remedy shall be Customer’s sole and exclusive remedy for breach of this Clause.
12. Support Duration
12.1 Support Services shall be provided by Mincad to Customer as specified on Mincad’s website from time to time.
12.2 Support Services shall, at the sole option of Mincad, take the form of:
(i) email advice;
(ii) telephone advice;
(iii) facsimile advice;
(iv) error correction by means of modem
(v) providing support by way of making information and computer programs available to Customer on Mincad’s website (when and if available); and
(vi) other attendances as are appropriate in the sole opinion of Mincad.
12.3 Immediately after making a request for Support Services, which may involve error correction or program modification, Customer shall give Mincad a documented example of the defect or error.
12.4 If Mincad investigates a defect notified to it by Customer and Mincad 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 Customer for any such investigation.
13. Support Availability
13.1 Mincad shall provide Support Services during the times set out on Mincad’s website.
13.2 A request for Support Services shall be acknowledged, but not necessarily completed, within 1 working day.
13.3 Mincad 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 Mincad’s website.
14. Exclusions
14.1 Support Services to be provided by Mincad under this Agreement do not include:
(a) on-site attendance;
(b) correction of errors or defects caused by operation of APSDS in a manner other than that currently specified by Mincad;
(c) correction of errors or defects caused by modification, revision, variation, translation or alteration of APSDS not authorised by Mincad;
(d) correction of errors or defects caused by the use of APSDS by a person not authorised by Mincad;
(e) correction of errors caused in whole or in part by the use of computer programs other than APSDS;
(f) correction of errors caused by the failure of Customer to provide suitability qualified and adequately trained operating and programming staff for the operation of APSDS;
(g) training of operating or programming staff;
(h) rectification of operator errors;
(i) rectification of errors caused by incorrect use of APSDS;
(j) rectification of errors caused by an equipment fault;
(k) equipment maintenance;
(l) diagnosis or rectification of faults not associated with APSDS;
(m) providing or maintaining accessories, attachments, supplies, consumable or associated items, whether or not manufactured or distributed by Mincad;
(n) correction of errors arising directly or indirectly out of Customer’s failure to comply with this Agreement or any other agreement with Mincad;
(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 Mincad may, without obligation to do so, supply such goods or services referred to in Sub-clause 16.1. Customer shall pay Mincad additional fees or such other amounts as may be agreed for such goods and services so supplied.
15. Backup
15.1 Customer is responsible for ensuring that all data (including without limitation APSDS) is adequately backed up at all times (including, without limitation, prior to Support Services being supplied).
16. Educational Use
16.1 If 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:
16.2 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
(a) 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 Mincad without withholding, deduction or offset of any amounts for any purpose all applicable licence and Support Services fees:
17.2 Mincad may increase its fees at any time upon 30 days’ notice to Customer.
17.3 Customer shall pay Mincad Interest on all overdue amounts from the due date until payment is made.
17.4 If any payment owing to Mincad is not made within 7 days of the due date, Mincad may, on 7 days notice to Customer, suspend further services or its remaining obligations to 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 Customer at the time of disclosure:
(a) Customer shall keep Confidential Information confidential;
(b) Customer shall not directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;
(c) Customer shall not use any Confidential Information without the express written consent of Mincad; and
(d) Customer shall take all necessary precautions to prevent any disclosure of any Confidential Information to unauthorised third parties and shall inform Mincad of any suspected or actual disclosure of Confidential Information.
18.2 Customer shall not remove or cause to be removed from Mincad’s, its clients’ or its business partners’ premises any Confidential Information without prior written consent from Mincad.
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 Mincad for any breach of such term shall be limited, at the option of Mincad, to any one or more of the following: 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 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 12 and Sub-clause 21.1, Mincad shall not be under any liability (contractual, tortious or otherwise) to 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 Mincad.
19.3 Customer warrants that it has not relied on any representation made by Mincad or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Mincad.
20. Acknowledgement
20.1 Customer acknowledges and agrees that:
(a) pavement design and engineering is a complex area and the APSDS is not designed as a substitute in any way for professional advice;
(b) APSDS is supplied with certain operating instructions and a failure to follow these instructions carefully could result in erroneous data being produced by APSDS;
(c) Whilst APSDS may be used by persons without a detailed knowledge of computers, APSDS is designed to be used by persons who have a detailed knowledge of, without limitation:
(i) the applicable Pavement engineering standards; and
(ii) 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 APSDS for any anomalies; and
(e) They shall obtain professional advice in relation to all results provided by APSDS.
20.2 APSDS is licensed on the basis set out in this Agreement on the understanding that to the extent permitted by law Mincad is not responsible for the results of any actions taken, either by Customer or a third party relying on figures supplied or not supplied by APSDS.
21. Indemnity
21.1 Customer warrants that any materials supplied to Mincad by Customer do not infringe Intellectual Property Right of any person.
21.2 To the extent permitted by law, Customer shall fully indemnify and keep indemnified Mincad, its officers, employees and agents, against any loss, costs, expenses, demands, taxes or liability whether direct or indirect arising out of:
(a) use of APSDS;
(b) a breach of this agreement by Customer; or
(c) any wilful, unlawful or negligent act or omission of Customer.
22. Termination
22.1 Without limiting the generality of any other clause in this Agreement, Mincad may terminate this Agreement immediately by notice in writing if:
(a) Customer breaches any Clause and such breach is not remedied within 14 days of written notice by Mincad;
(b) Customer disposes of APSDS or is otherwise no longer capable of complying with its obligations under this Agreement; or
(c) Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; Customer being a natural person, dies; or Customer ceases or threatens to cease conducting its business in the normal manner.
22.2 If notice is given to Customer pursuant to Sub-clause 24.1 Mincad may, in addition to terminating this Agreement:
(a) repossess any copies of APSDS in the possession, custody or control of Customer;
(b) retain any moneys paid;
(c) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(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, Customer shall immediately on request furnish Mincad with written notification that APSDS and Documentation have been returned to Mincad or otherwise disposed of at the direction of Mincad.
22.4 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 Mincad 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 Mincad 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 Customer (whether by assignment, novation, sub-licensing or otherwise) without Mincad’s written consent.
26. Waiver
26.1 No right of Mincad under this Agreement shall be deemed to be waived except by notice in writing signed by Mincad. Such a waiver by Mincad shall not prejudice its rights in respect of any subsequent breach of this Agreement by Customer.
26.2 Any express statement of a right of Mincad under this Agreement is without prejudice to any other right of Mincad 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