HeatCAD - Heat Load Calculation Software – ASHRAE – CSA F280 R2017

HeatCAD^® Software

This End User License Agreement (the “Agreement”) is made between Avenir Software, Inc., an Alberta corporation with its principal place of business located at 212 - 4935 40th Ave NW, Calgary, Alberta, Canada, T3A 2N1 (“Avenir”; “Licensor”) and you, the licensee ("You"; “Licensee”) for use of the Software by a single end-user.

IMPORTANT! YOUR USE OF THE AVENIR SOFTWARE INSTALLED ON THIS COMPUTER IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

PLEASE READ ALL OF THIS AGREEMENT BEFORE USING THE AVENIR SOFTWARE INSTALLED ON THIS COMPUTER. ACCESSING THE AVENIR SOFTWARE INSTALLED ON THIS COMPUTER INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AVENIR IS UNWILLING TO LICENSE THE SOFTWARE TO YOU. YOU MAY NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE AND YOU SHOULD PROMPTLY CONTACT AVENIR FOR INSTRUCTIONS ON RETURNING THE SOFTWARE.

1. Definitions. In this Agreement, the following terms shall have the meanings assigned to them below:
   1. "Documentation" means the then-current published user manuals and documentation that Avenir makes generally available for the Software.
   2. "Software" means (i) the specified machine-readable object code retail, evaluation and/or learning edition software version of the HeatCAD® software made generally available by Avenir and (ii) corrections, enhancements, derivatives and upgrades thereto that Avenir may make available under this Agreement (hereinafter referred to respectively as the "Retail Software", the "Evaluation Software" and the “Learning Edition Software”) and (iii) all copies of the foregoing.
   3. "Computer" or "Device" means a computer hardware system, whether physical or virtual, with a storage device or a mobile device capable of running the software. A hardware partition or blade is considered to be a device.
2. License Grant. Licensee shall ensure that the Software is not made available to individuals other than the Licensee and the Software and the Documentation are not made available to third parties for use in the third party’s business operations. Additional licenses must be obtained from Avenir for any such access or use. Notwithstanding the foregoing, reports and other aggregated data derived from the use of the Software may be displayed, printed and shared by Licensee’s personnel for its own internal business purposes. Licensor reserves the right to suspend Licensee’s access to and/or use of the Software for any account for which any payment is due but unpaid but only after Licensor has provided Licensee a delinquency notice.
   1. Retail Software. If Licensee is licensing Retail Software from Avenir, subject to the terms and conditions of this Agreement, and in consideration for the payment of all applicable license fees, Avenir hereby grants to Licensee, and Licensee accepts from Avenir, a limited, non-exclusive, non-transferable, and non-sublicensable right to install, use, access, run, and otherwise interact with the Software on a single computer within the scope of license granted herein, solely in and for Licensee’s use in internal business operations, subject to the restrictions below in Section 3, and solely in accordance with the related Documentation. Licensee may also install, use, access, run, and otherwise interact with the Software on one additional computer for Licensee’s portable or home office use, provided that:
      1. Licensee is the sole user of the Software on any computer on which the Software is installed,
      2. Licensee has executed Avenir's then-current secondary-use installation form documenting Licensee's installation of the Software on an additional computer as per this Section 2(a) and returned same to Avenir, and
      3. Licensee has paid all required fees.
      Licensee may also make one additional copy of the Software solely for non-productive archival purposes, so long as the copy contains all titles, trade-marks and copyrights and restricted rights notices as in the original. Nothing in this Agreement entitles Licensee to receive or grant any rights to the source code for any part of the Software.
   2. Evaluation Software. If Licensee is licensing Evaluation Software from Avenir, subject to the terms and conditions of this Agreement, Avenir hereby grants to Licensee, and Licensee accepts from Avenir, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to install, use, access, run, and otherwise interact with the Software on a single computer within the scope of license granted herein, solely for Licensee’s trial and evaluation purposes, subject to the restrictions set forth in Section 3 below, and solely in accordance with the related Documentation. Nothing in this Agreement entitles Licensee to receive or grant any rights to the source code for any part of the Software. Licensee may convert the Evaluation Software to Retail Software at any time during the evaluation term by completing the activation procedure, as more particularly described at Avenir's website.
   3. Learning Edition Software. If Licensee is licensing Learning Edition Software from Avenir, subject to the terms and conditions of this Agreement, Avenir hereby grants to Licensee, and Licensee accepts from Avenir, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to install, use, access, run, and otherwise interact with the Software on a single computer within the scope of license granted herein, solely for Licensee’s learning purposes, subject to the restrictions set forth in Section 3 below, and solely in accordance with the related Documentation. Nothing in this Agreement entitles Licensee to receive or grant any rights to the source code for any part of the Software. Licensee may convert the Learning Edition Software to Retail Software at any time during the evaluation term by completing the activation procedure, as more particularly described at Avenir's website.
3. Restrictions. Avenir reserves any and all rights, express or implied, not expressly granted to Licensee under this Agreement and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, sublicense, rent, lease, commercial time-share, loan or create derivative works based upon the Software or any part thereof.
   1. If Licensee uses virtualization software to create one or more virtual devices on a single computer hardware system, each virtual device, and the physical device, is considered a separate device for purposes of this Agreement. This grant of license allows you to install and use only one copy of the Software on each licensed device, whether that device is physical or virtual. If you virtualize the Software, you must purchase separate licenses of the Software for each user.
   2. Licensee may access and use the Software installed on the licensed device via remote access from any other device, as long as the Software installed on the licensed device is not being used non-remotely by another user simultaneously.
4. Ownership. The Software and the Documentation are protected by Canadian and international copyright and other intellectual property laws. Avenir owns and retains all right, title and interest in and to: (a) the Software, including but not limited to, all copies, versions, updates and all related Documentation and any and all copyrights, moral rights, patent rights, trade secret rights and other intellectual property rights therein, throughout the world; (b) registered and unregistered Avenir trade-marks (including without limitation, logos); (c) all Confidential Information (as defined in Section 10 below) and (d) any and all suggestions, ideas and comments provided by Licensee regarding improvements to the Software.
   
   Licensee acknowledges and agrees that installation, downloading or use of the Software does not transfer to Licensee any ownership, title, or registrable interest of any kind in the Software and that Licensee shall not acquire any rights to the Software except as expressly set forth in this Agreement.
5. Term and Termination. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by Licensor to Licensee for the Software. Where applicable, Licensor may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Software from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Software and Licensee’s use of the Software. Regardless of the location of the Software, Licensee shall be responsible for strict compliance with any and all of the terms and conditions of the Agreement. This Agreement will terminate automatically if Licensee breaches any provision of this Agreement or otherwise fails to comply with any of the limitations or other requirements described in this Agreement. Upon termination of this Agreement for any reason, Licensee shall immediately cease use of the applicable Software and destroy or return to Avenir such Software and all copies thereof. Termination of this Agreement for any reason shall not relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee under this Agreement. The provisions of Sections 3, 5, 8, 9, 10, 11 and 14 shall survive termination of this Agreement.
   1. If Licensee is granted a license to the Retail Software, this Agreement is effective as of date on which the Retail Software license is purchased and shall continue until the date this Agreement expires or is terminated in accordance with the provisions of this Agreement.
   2. If Licensee is granted a license to the Evaluation Software, this Agreement is effective as of the date on which the Evaluation Software is installed and terminates on the earliest of (a) forty-five (45) sessions of the Evaluation Software, where the act of opening the Evaluation Software on Licensee’s computer shall be deemed to be one “session”; or (b) forty-five (45) projects undertaken using the Evaluation Software, where the initiation of one design project using the Evaluation Software shall be deemed to constitute one “project”; or (c) thirty (30) calendar days.
   3. If Licensee is granted a license to the Learning Edition Software, this Agreement is effective as of the date on which the Learning Edition Software is activated and terminates upon expiry of the subscription term.
6. Updates. Avenir may, in its sole discretion, make new versions and releases of the Retail Software available to Licensee, including corrections, enhancements and upgrades, if and when it makes them generally available.
7. Support. Avenir will provide telephone, Internet and e-mail support for the Retail Software for the term of the License and only when the Licensee has an active Subscription, subject to the limitations in this Section 7. Avenir will provide only Internet and e-mail support for the Evaluation Software and Learning Edition Software for the term of the License, subject to the limitations in this Section 7.
   
   Support shall be provided: (a) through direct telephone and e-mail access during Avenir's normal business hours, which are 8:00 AM to 5:00PM MST, Monday to Friday, (excepting statutory holidays in Alberta and any down-time experienced due to periodic maintenance or network unavailability); (b) by employees of Avenir who have the necessary technical expertise and experience to reasonably address Licensee's inquiries; (c) to one (1) designated representative of Licensee, who may be changed upon written notice to Avenir; and include, but not be limited to, the following: (i) a direct response to Licensee with respect to inquiries concerning the performance, functionality or operation of the Software, (ii) a direct response to Licensee with respect to problems or performance deficiencies with the Software, (iii) a diagnosis of problems or performance deficiencies with the Software, and (iv) a resolution of problems or performance deficiencies of the Software. Additional self-help support, including "Frequently-Asked Questions", may be provided at Avenir's website.
   
   For the Retail Software, Avenir will only provide the foregoing support for the then-current version. Provision of support for a previous version of the Retail Software shall be discontinued on the earlier of six (6) months after Avenir has made a new version of the Retail Software generally available, or the date when the Licensees Subscription expires.
   
   Avenir shall have the right to refuse to provide support if Licensee has been deemed, in Avenir’s sole discretion, to have been inappropriate or abusive in its conduct or communications. Refusal by Avenir to provide support shall not relieve Licensee of its obligations under this Agreement, and shall not entitle Licensee to a full or partial refund of the fees paid to Avenir.
8. Limited Warranty. Avenir warrants that for a period of thirty (30) days from the date on which the Retail Software is activated, (a) the media provided by Avenir, if any, on which the Retail Software is recorded, will be free from material defects in materials and workmanship under normal use, and (b) the operation of the Retail Software, as provided by Avenir, will substantially conform to the Documentation.
   
   LICENSOR DOES NOT REPRESENT THAT LICENSEE’S USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ALL ERRORS IN THE SOFTWARE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SOFTWARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND AVENIR HEREBY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY OF SERVICE.
   
   Licensee must report in writing any breach of the foregoing warranties to Avenir during the warranty period, and Licensee’s exclusive remedy, and Avenir’s sole obligation, for any such breach of warranty or conditions shall be for Avenir to use commercially reasonable efforts to replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the warranty or conditions within a reasonable time considering the severity of the error and its effect on Licensee, or, at Avenir’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Avenir and termination of the related license hereunder.
9. Limitation of Remedies and Damages. IN NO EVENT WILL AVENIR OR ITS SUPPLIERS OR AFFILIATES OR LICENSEE BE LIABLE UNDER ANY BREACH OF OR REPUDIATION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA AND THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVENIR’S CUMULATIVE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING FROM THIS AGREEMENT, AND REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO NO GREATER THAN THE AMOUNT OF FEES PAID TO AVENIR UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RELATE TO PARTICULAR ITEMS OF SOFTWARE OR SERVICES PROVIDED BY AVENIR, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICES ONLY. THE PARTIES ACKNOWLEDGE AND AGREE THAT NO ACTION MAY BE BROUGHT AGAINST AVENIR LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION OCCURRED, AND EXCEPT AS PROVIDED IN SECTION 8 ABOVE, IN NO EVENT WILL AVENIR BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST LICENSEE OR ITS AFFILIATES.
10. Non-disclosure. “Confidential Information” means this Agreement, the Software, source code, object code and any proprietary tools, proprietary knowledge, trade secrets, know-how or proprietary methodologies disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and not generally known by non-party personnel, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe strict compliance with respect to the Confidential Information, and shall take all commercially reasonable steps to protect the Confidential Information from any unauthorized use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Software and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.
11. Injunctive Relief. Licensee acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of Section 3 or 10 of this Agreement, Avenir shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
12. Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of Canada, the United States or other applicable foreign agency or authority.
13. Usage Verification. At Avenir's request, but not more frequently than annually, Licensee shall furnish Avenir with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee shall permit Avenir to review Licensee's deployment and use of the Software for compliance with the terms and conditions of this Agreement, at Avenir's expense. Any reviews shall be scheduled at least 15 days in advance, shall be conducted during normal business hours at Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities. If Licensee's use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject Software, then Licensee shall also pay Avenir's reasonable costs of conducting the audit.
14. Passwords. Licensee will be responsible for the confidentiality and use of its passwords and user names. Licensee shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software and shall promptly notify Avenir of any unauthorized access or use of the Software and any loss or theft or unauthorized use of any of Licensee’s password or name and/or Software account numbers.
15. General.
    1. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada, excluding its conflicts of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the provincial or federal courts located in the Province of Alberta, Canada. Each party irrevocably submits to the exclusive jurisdiction of such courts.
    2. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written consent of Avenir, which shall not be unreasonably withheld, and any purported assignment without Avenir’s consent shall be null and void. For greater certainty, any change of control of Licensee, including, without limitation, by way of merger or amalgamation (regardless of whether Licensee is the surviving entity) shall be deemed to be an assignment.
    3. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
    4. Licensee agrees that Avenir may include Licensee in its listing of customers and may announce Licensee's selection of Avenir in its marketing communications.
    5. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.
    6. Other than for payment obligations, each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
    7. This Agreement, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.
    8. Licensee shall provide accurate contact information when purchasing the Software.
    9. The parties hereto have expressly required that the Agreement be drawn up in the English language. Les parties aux presentes ont expressement exigé que la present convention soit rédigée en langue anglaise.