End User License Agreement (EULA)
Software End User License Agreement
This Software End User Licence Agreement (this “Agreement”) is a binding agreement between Giraffe Apps Inc. (“Licensor”) and the person or entity who purchases Licensor’s software (“Licensee” or “You”) for use in connection with Rhinoceros (as defined below).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY PURCHASING THE SOFTWARE, ACCESSING THE SOFTWARE, OR OTHERWISE USING THE SOFTWARE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ACCESS, DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means a user who has agreed to be bound by this Agreement and who is lawfully downloading, accessing or using the Software.
“Documentation” means any of Licensor’s end user documentation relating to the Software.
“Fees” means any fees charged by the Licensor in connection with the Order.
“Free Trial” means, as described at the time a ‘free trial’ offer is made to the Licensee and subject to any terms conveyed at such time by Licensor, a time-limited period during which the Software is licensed to the Licensee on a gratis basis.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensor” has the meaning set forth in the preamble.
“Order” means the order for the Software submitted by or on behalf of Licensee for Licensee’s licence for the Software granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Representative” means, with respect to a party, that party’s employees, directors, officers, and legal advisors.
“Rhinoceros” means the Rhinoceros platform owned by TLM, Inc. d.b.a. Robert McNeel & Associates.
“Software” means the CheetA architectural planning tool, which is a plug-in made to be used solely in connection with the Rhinoceros platform, including any Updates provided to Licensee pursuant to this Agreement.
“Term” has the meaning set forth in Section 9.1.
“Third Party” means any Person other than Licensee or Licensor.
“Update” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.
License Grant and Scope.
Subject to and conditional upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable license, during the Term, and solely by and through its Authorized Users (who shall be bound to any obligation of the Licensee hereunder in connection with the use of the Software), to install the number of copies of the Software equal to the number of seats that the Licensee has subscribed for in the Order, and to use and run the Software as properly installed in accordance with this Agreement and the Documentation.
Use Restrictions.
Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
except as expressly set forth in Section 2.1, copy the Software or Documentation, in whole or in part;
except as expressly authorized by Licensor in writing, modify, translate, adapt, or otherwise create derivative works, improvements, whether or not patentable, of the Software or Documentation or any part thereof;
except as expressly authorized by Licensor in writing, combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
access the software using any automated, non-human, or artificial intelligence program, software or system (except in connection with any disability-related accommodation or other legally required use), including for the purpose of creating training datasets or ingesting information into such systems;
remove, delete, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the Software or Documentation, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software and Documentation, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud, or other technology or service;
use the Software or Documentation in violation of any law, regulation, or rule; or
use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
Activation. The Software requires license keys and periodic verification with Licensor’s licensing servers. An internet connection may be required for initial activation, renewal, and recurring validation (e.g., at intervals set by Licensor). If activation or validation fails, the Software may cease to function or operate in a limited mode until the license is successfully validated. Use of the Software requires a valid, legally licensed copy of Rhinoceros. Licensor does not supply or support Rhinoceros and is not responsible for third party prerequisites. In the event that Licensee is using the Software pursuant to a Free Trial, Licensee acknowledges that the license granted hereunder shall be further limited, and certain Software features may be different than the paid version of the Software, or that certain Software features may be limited or unavailable.
No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party, any Intellectual Property Rights or license, nor other right, title, or interest in or to the Software or Documentation.
Responsibility for Use of Software.
Licensee is responsible and liable for all direct and indirect uses of the Software and Documentation by Licensee and/or any Authorized Users. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
Licensee may be able to create content, material, or information, including architectural designs, models, schematics, descriptions, pictures, or other content through or using the Software and/or Rhinoceros (“User Generated Content”). Licensee is entirely responsible for all User Generated Content. The Licensor is not responsible or legally liable to any third party for the content of any User Generated Content created, submitted, posted, published, displayed, or otherwise used in connection in or with the Software. Any and all User Generated Content must comply with all applicable laws, regulations, this Agreement and the terms and conditions of Rhinoceros. Licensee hereby assumes all liability arising in connection with Objectionable Content. Licensee agrees to grant the Licensor, its successors, and assigns, and the Licensor’s affiliates and service providers as necessary, a worldwide, royalty free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, copy, and otherwise disclose any User Generated Content in order to enable Software features. Licensee waives all moral rights in any such User Generated Content in connection with such use. Licensee otherwise retains all right, title, and interest in User Generated Content.
The Software primarily runs locally within Licensee’s Rhinoceros environment. Limited technical data (e.g., license identifiers, device/seat IDs, version, crash/diagnostic reports) may be transmitted to Licensor solely to activate, validate, secure, improve, and support the Software, in accordance with Licensor’s Privacy Policy.
Maintenance and Support. Licensor shall provide basic email support at [PVarshosaz@giraffe.software]. Support is subject to Licensor’s resources and policies and is not guaranteed to be immediate. Enhanced support, if any, may be offered under a separate plan. Licensor may otherwise provide, but shall have no obligation to provide, additional maintenance and support services, including the provision of Updates. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensor has no obligation to provide Updates via any particular media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
Collection and Use of Information. Licensee acknowledges that Licensor may, directly or indirectly through Rhinoceros, collect and store information regarding purchase and use of the Software. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee. Any collection and use of personal information shall be in compliance with applicable laws. Rhinoceros may collect personal information in accordance with its privacy policies and/or notices, and Licensee agrees and acknowledges that Licensor is not liable for the access, use, collection, storage, disclosure or other exploitation of Licensee’s or Authorized Users’ personal information by Rhinoceros.
Intellectual Property Rights. Licensee acknowledges and agrees that all right, title, and interest in and to the Software and Documentation are owned by Licensor. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
Payment. The Software is offered on a subscription basis (e.g., monthly and annual plans) as set forth in the applicable Order. A Free Trial may require the provision of payment information, and may automatically convert to a paid subscription upon such terms conveyed in the applicable Order. Subscriptions automatically renew for successive terms unless canceled in accordance with this Agreement. All Fees are payable in advance in the manner and in accordance with the terms set forth by Licensor at the time Licensee is provided the opportunity to place an Order. Licensor may change pricing or plans upon notice effective for the next renewal term. Fees are exclusive of taxes unless otherwise stated, and all applicable taxes are Licensee’s responsibility. All Fees are nonrefundable except as required by law or expressly stated in the Order.
Term and Termination.
This Agreement and the licence granted hereunder shall remain in effect terminated as set forth herein (the “Term”).
This Agreement and the license granted hereunder at the expiration of any term set out in the relevant Order, or immediately upon Licensee’s failure to pay any Fees when due and payable.
Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Licensor provides written notice thereof.
Upon expiration or earlier termination of this Agreement, the licence granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation, and permanently erase or cause to be erased from its and its Authorized Users’ computer systems, files, and storage media all copies of the Software and Documentation of Licensor obtained, made, or authorized to be made by Licensee or on Licensee’s behalf.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 6, Section 7, Section 9.5, Section 9.6, Section 10, and Section 11.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.
THE LIMITATIONS SET FORTH IN SECTION 10.1 AND SECTION 10.2 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Miscellaneous.
Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, the Software, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
Force Majeure. Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, hostilities, war, terrorist attack, embargo, natural disaster, epidemics, pandemics, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) in writing and addressed to the other Party, in the case of the Licensee at the email address provided on the Order, and in the case of the Licensor at [PVarshosaz@giraffe.software]. Notices sent in accordance with this Section will be conclusively deemed validly and effectively given on the date sent if duly sent by email.
Entire Agreement. This Agreement, together with the Order constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Notwithstanding the foregoing, this Agreement is subject to any terms agreed by the Licensee in connection with using Rhinoceros.
Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.6 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee’s consent. This Agreement is binding upon and endures to the benefit of the parties hereto and their respective permitted successors and assigns.
Successors and Assigns; No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Amendments and Modifications. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.
Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections refer to the Sections of this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.