END-USER LICENSE AGREEMENT
This END-USER LICENSE AGREEMENT (the “Agreement”) is effective as of the date when You download and/or install the BuildIT application (the “Software”, as further defined below) on your workstation, central processing unit, personal computer or other similar device or system (“Hardware”) or use any end-user documentation provided with the Software, whichever is earlier (the “Effective Date”). This Agreement constitutes a binding agreement between BUILDIT SOFTWARE & SOLUTIONS LTD., a corporation with offices at 4999 St. Catherine Street West, Suite 308, Montreal, Quebec, Canada, H3Z 1T3, together with its third party suppliers(collectively “BITSS”), and You as owner and/or lawful operator of the Hardware and/or authorized user of the end-user documentation provided with the Software (“You” or “Licensee”) (designated collectively with BITSS as the “Parties” and each a “Party”).
For the purposes of this Agreement, “Software” means the software owned by BITSS known and designated as the BuildIT application, as more fully described in the related end-user documentation issued by BITSS, in all cases in object code format only, including existing end-user documentation, Upgrades and Updates, if any, provided to You in BITSS’s discretion; “Upgrade” means a periodic major release that may include new functionality and support of new platforms, such as new operating systems and new versions of the Software, and may collectively include previous Service Packs and Updates (e.g. V1.0 -> V2.0); “Service Pack” means a fix for critical errors (e.g. V1.1.1 -> V1.1.2); “Update” means, bug fixes, workarounds, patches, or maintenance updates in respect of the Software; whenever used in this Agreement, “including” or “includes” means “including (or includes) without limitation”.
BY CLICKING AN “I AGREE” OR “I ACCEPT” OR ANY OTHER SIMILAR ICON WHEN PROMPTED TO DO SO AT THE TIME OF USING, ACCESSING, INSTALLING, DOWNLOADING OR COPYING THE SOFTWARE, OR BY ACTUALLY USING, ACCESSING, INSTALLING, DOWNLOADING OR COPYING THE SOFTWARE, YOU SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT: (i) REFRAIN FROM CLICKING ON THE “I AGREE”, “I ACCEPT” OR SIMILAR ICON (THE INSTALLATION PROCESS WILL THEN STOP), DESTROY THE RELEVANT COPY OF THE SOFTWARE AND REQUEST A FULL REFUND OF FEES PAID AND/OR (ii) DO NOT DOWNLOAD THE SOFTWARE. BY CLICKING “I AGREE” OR “I ACCEPT” OR ANY OTHER SIMILAR ICON WHEN PROMPTED TO DO SO, YOU CERTIFY THAT YOU ARE NOT A CONSUMER AND THAT YOU WILL USE THE SOFTWARE SOLELY FOR PROFESSIONAL, COMMERCIAL, INDUSTRIAL OR INSTITUTIONAL USES.
OWNERSHIP OF SOFTWARE
The Software and its components are protected by national legislation and international treaties offering protection to intellectual property matters. As between the Parties, BITSS is, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Software including any copyright thereon or included therein and any and all trademarks, logos and other proprietary markings used in or on the Software and, in each case, all related intellectual property rights (collectively, the “BITSS Property”). THIS IS A LICENSE; it is not a sale or a lease of the Software. No property, ownership or real right or interest in the Software, or any component thereof, is granted, assigned, conveyed, transferred or sold to You by virtue of this Agreement or otherwise. Your right to use the Software is strictly derived from the limited license granted to You hereunder.
SOFTWARE LICENSE AND GOVERNING TERMS
You are hereby granted a personal, non-assignable, non-sublicensable, non-exclusive, revocable, limited license to download, install and execute one (1) copy of the Software, in object code only, solely for professional, commercial, industrial or institutional uses. The Software license granted to You is either a floating license or a node-locked license, the whole as designated in the relevant purchase order. For the purposes hereof, a “floating license” means that access to the Software at any given moment will be limited to the maximum number of concurrent users for whom licenses have been validly acquired. “Node-Locked” license means that the use of the Software will be restricted to a single Hardware device specified by You at the time of purchase.
It is your responsibility to make the Hardware on which the Software is installed secure, and You may only provide access to the Software to yourself or any person under you direct control. You are responsible for all activity made by anyone who uses your Hardware and your copy of the Software, including all legal liability incurred from such use.
SPECIAL TERMS APPLICABLE TO TRIAL LICENSES
Notwithstanding the other terms and conditions of this Agreement, if the Software has been provided to You under a trial license, the following terms apply to such trial license:
You are hereby granted a personal, non-assignable, non-sublicensable, non-exclusive, revocable, limited license to download, install and execute one (1) copy of the Software, in object code only, in a test environment solely for trial purposes. The Software shall not be used for commercial, professional or productive purposes, for commercial training or any other for-profit purposes, including testing, analysis and benchmarking. If, during the term of this Agreement, BITSS provides You with updates or new releases of the Software, they are deemed to be part of the Software and subject to the terms and conditions of this Agreement.
Trial Software is provided to You on an “as-is” basis, without BITSS maintenance services.
BITSS MAKES NO WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, WITH RESPECT TO TRIAL SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT AND SUCH IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. In no event will BITSS be liable to You for any claims or damages whatsoever arising out of or related trial licenses provided under this Agreement, regardless of the form of action, whether in contract, tort or otherwise.
Trial licenses will extend for a limited, finite period of time specified by BITSS in the relevant purchase order. Any trial license will terminate effective immediately if You fail to comply with any of the terms and conditions contained herein. Your receipt of Updates or Upgrades will not, by implication, extend the term of the trial license beyond the term specified for such Software. Within ten (10) days after termination of any trial license You will, at Your expense, (i) return to BITSS the original and all tangible copies of the Software in all forms, and any associated hardware keys, (ii) destroy all soft copies of the Software, and (iii) certify to BITSS in writing that such obligations have been fulfilled.
NO MAINTENANCE, ENHANCEMENT AND SUPPORT SERVICES
No maintenance, enhancement and technical support services are provided to You under this Agreement. BITSS may, at its discretion, offer You such services, subject to the execution of a separate written agreement and the payment of additional fees as determined by BITSS from time to time. Without limiting the generality of the foregoing, and for further clarity, BITSS has no obligation to provide You with any Upgrades or Updates of the Software. Any Upgrades or Updates so provided to You under this Agreement (at BITSS’s discretion) will thereafter be part of the Software and governed by this Agreement.
Save and except as expressly allowed in this Agreement, You have no rights with respect to the BITSS Property or any component thereof. Without limiting the generality of the foregoing, You shall not, directly or indirectly:
(i) Decompile, transform, modify, translate, disassemble, reverse engineer or otherwise attempt to decrypt or derive the source code, any trade secrets, or any sensitive or proprietary information of, or included in or related to the Software,
(ii) Modify, merge, alter, copy, distribute or otherwise reproduce or tamper with the Software or produce or create any other applications whatsoever or any derivative works thereof,
(iii) Copy, alter, destroy, remove, reproduce, distribute, tamper or use without authorization any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within the Software,
(iv) Rent, resell, lease, give access, share, lend or operate the Software on a time share or service bureau basis, or distribute as part of an ASP, VAR, OEM or other arrangement, the Software,
(v) Use or access the Software to publish, transfer, display, store, distribute or disseminate or otherwise transmit, load upon or make available anything (including information, files, software, data or other content) that is inappropriate, inaccurate, illegal, profane, defamatory, obscene or indecent, or that is destructive, harmful or disruptive (including, without limitation, any viruses or other programs that may damage, misappropriate, hack into or misuse the Software), or
(vi) Otherwise use the Software for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving junk email, spamming, hacking, defamation, abuse, harassment, stalking, threatening or otherwise violating the rights of any person.
TERM AND TERMINATION
This Agreement shall become effective upon the Effective Date and shall continue in effect until the earlier of when:
(i) You destroy your copy of the Software, or
(ii) the term of the license specified in the purchase order has lapsed, or
(iii) this Agreement is terminated by BITSS as a result of Your failure to cure a breach of this Agreement within fifteen (15) days of the receipt of a notice thereof from BITSS (the “Term”).
Upon any termination:
(a) all licenses hereunder shall terminate and You shall immediately cease using the BITSS Property (including the Software), and
(b) You must and shall destroy all copies of the Software and any supporting materials, stored on whatever Hardware or other media.
BITSS warrants that, for a period of ninety (90) days from the Effective Date, the Software will substantially conform to the technical specifications set forth in the end-user documentation published by BITSS in relation to the Software. This limited warranty is void in the event that the Software and/or the Hardware on which it is used are affected by an accident, abusive treatment or wrongful application, which results in any defect in the Software. This limited warranty extends only to You as the original Licensee. The above limited warranty DOES NOT apply to any beta Software, any Software made available for trial, testing or demonstration purposes, any temporary Software modules or any Software for which BITSS or a designee of BITSS does not receive a license fee. All such Software is provided “AS IS” without any warranty, representations, rights, obligations or conditions of any kind whatsoever.
For a period of thirty (30) days after the Effective Date, if, for any reason, You are not satisfied with the Software, BITSS agrees to fully reimburse you upon receipt of a proof of purchase stating “Returned – Unsatisfied”. Upon expiration of this period and until expiration of the limited warranty as set forth above, the only obligation of BITSS and your sole recourse will be, at the sole discretion of BITSS, either the reimbursement of the price paid or repair or replacement of the Software. Any software replacement will be guaranteed for the remainder of the initial period of warranty or thirty (30) days, whichever period is the longest.
NO OTHER WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT ONLY FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS FURNISHED “AS IS”, AT LICENSEE’S RISKS AND PERILS, WITH ALL FAULTS AND WITHOUT REPRESENTATIONS, WARRANTIES, RIGHTS, OBLIGATIONS OR CONDITIONS OF ANY KIND, WITHOUT LIMITATION, ANY AND ALL REPRESENTATIONS, WARRANTIES, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY AND GOOD STATE OF REPAIR, ARE DENIED, DISCLAIMED AND EXCLUDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BITSS, ITS AFFILIATES AND DISTRIBUTORS DENY AND DISCLAIM THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT IT WILL PERFORM OR FUNCTION APPROPRIATELY OR PRODUCE A DESIRED RESULT.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE MAXIMUM LIABILITY OF BITSS, ITS AFFILIATES AND DISTRIBUTORS, FOR ALL CLAIMS AND DAMAGES UNDER OR IN RELATION TO THIS AGREEMENT (INCLUDING AS A RESULT OF THE USAGE OR IMPOSSIBILITY TO USE THE SOFTWARE) SHALL BE LIMITED TO THE LICENSE FEE OR OTHER MONETARY CONSIDERATION YOU PAID FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE RIGHT OF ACTION AROSE; PROVIDED THAT BITSS, ITS AFFILIATES AND DISTRIBUTORS SHALL HAVE NO LIABILITY WHATSOEVER UNDER OR IN RELATION TO THIS AGREEMENT, UNDER ANY CIRCUMSTANCES, IN RESPECT OF GENERAL, INCIDENTAL, AGGRAVATED, PUNITIVE, TREBLE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST BUSINESS REVENUE, LOST PROFITS, LOST OPPORTUNITIES OR GAINS, LOST GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF BITSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IS SUCH DAMAGES WERE FORESEEABLE.
Transfer and Assignment. BITSS may assign this Agreement, in whole or in part, to any person or entity without Your prior consent, which assignment shall operate novation; You may not assign this Agreement to any person or entity, in whole or in part; this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted assigns.
Survivorship. The provisions of this Agreement regarding restrictions on use, ownership, warranties and disclaimers, exclusions of liability, effects of termination and miscellaneous, and any other provisions which by their nature should survive the termination or expiry of this Agreement, will survive any termination or expiration of this Agreement.
Applicable Law and Jurisdiction. This Agreement shall be governed by the laws in force in the Province of Quebec (Canada), without regard to its conflict of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The Superior Court of Quebec, and the Federal Court of Canada, as applicable, sitting in the District of Montreal, shall have sole and exclusive jurisdiction over any action, claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter, except that BITSS may seek injunctive relief or any other equitable remedy with respect to any violation of this Agreement in any appropriate jurisdiction.
Should you have any questions concerning this Agreement or should you want to contact BITSS, please write to:
BUILDIT SOFTWARE & SOLUTIONS LTD.
4999 St. Catherine Street West, Suite 308
Montreal, Quebec, Canada, H3Z 1T3