BUILDSOFT PTY LIMITED
SOFTWARE LICENCE AGREEMENT
This Software Licence Agreement is made between Buildsoft Pty Limited (“Buildsoft”) and
the Licensee (“the Licensee”) identified on the Invoice rendered by Buildsoft or an
approved distributor in respect of the Software.
1. INTRODUCTION
1.1. Buildsoft has developed and is the owner of proprietary software (‘the Software’).
1.2. The Licensee wishes to licence the Software and Buildsoft agrees to grant a licence to
the Licensee to use the Software in accordance with the terms of this Licence
Agreement.
1.3. The Licensee acknowledges that, by accepting the terms of this Licence Agreement,
the Licensee is also bound, as applicable, by the terms and conditions of any quote,
invoice or related agreement (including the Software Assurance Agreement, if
applicable) supplied to the Licensee.
2. DEFINITIONS
2.1. In this Licence Agreement, unless the contrary intention appears:
(a) Commencement Date means either:
(i) in the case of a Perpetual Licence, the date of acceptance of the Quote or
Invoice in accordance to the Terms and Conditions of Sale;
(ii) in the case of a Subscription Licence, the date of payment of the
Subscription Fee, the agreed subscription date or the date otherwise
stipulated by Buildsoft;
(b) Confidential Information means, without limitation, the Software, all
information, specification, documentation, source or object code which Buildsoft
may impart to the Licensee from time to time relating to the Software or any
related document or agreement;
(c) Intellectual Property Rights means all intellectual property rights, including but
not limited to: patents, copyright, registered designs, trademarks and the right to
have confidential information kept confidential, and any application or right to
apply for registration of any of these rights;
(d) Invoice means the tax invoice rendered by Buildsoft or an approved distributor
to the Licensee in respect of the Software;
(e) Licence Fee means the fee published by Buildsoft at the Commencement Date
of this Licence Agreement payable in connection with the grant of a Perpetual
Licence. Buildsoft may in its discretion change the Licence Fee at any time;
(f) Perpetual Licence means a non-exclusive, non-transferrable licence granted by
Buildsoft to the Licensee to use the Software upon payment of the Licence Fee;
(g) Software Assurance Services means the provision of support services by
Buildsoft to the Licensee in connection with the Software pursuant to a Software
Assurance Agreement;
(h) Software Assurance Agreement means the agreement between Buildsoft and
the Licensee pursuant to which Buildsoft supplies the Software Assurance
Services for the benefit of the Licensee;
(i) Subscription Fee means the compulsory annual fee payable for continual use
of the software pursuant to a Subscription Licence;
(j) Subscription Licence means a non-exclusive, non-transferrable licence granted
by Buildsoft to the Licensee to use the Software (including free software updates
and technical support), the continuation of which shall be dependent upon
annual payments of the Subscription Fee.
3. LICENCE
3.1. Buildsoft grants the Licensee a non-exclusive, non-transferable, Perpetual Licence or
Subscription Licence to use the Software.
3.2 In the case of a Subscription Licence:
(a) Buildsoft grants a licence to the Licensee to use the Software for a term of 1
year. A Subscription Licence includes access to the benefits of the Software
Assurance Services which are supplied by Buildsoft pursuant to the Software
Assurance Agreement;
(b) The Subscription Licence shall renew automatically for a further term equal to
the previous term of the Subscription Licence and upon renewal, a further
Subscription Fee shall be payable;
(c) If a Licensee wishes to opt out of the Subscription Licence or otherwise alter the
terms of operation of the Subscription Licence, the Licensee must provide at
least 1 business days’ notice to Buildsoft prior to the expiry of the existing term of
the Subscription Licence;
(d) The Licensee is not able to opt out of the Software Assurance Agreement while
the Subscription Licence remains active;
(e) Failure to pay the Subscription Licence shall result in the suspension of the
Subscription Licence including access to the Software, Software Assurance
Services (including Software updates and access to support services) and the
Licensee’s data which may be produced by the Software.
4. LIMITED RIGHTS
4.1. The Licensee may install and use the Software either by:
(a) Obtaining a serial number from Buildsoft to run the Software; or
(b) Obtaining a dongle from Buildsoft which enables the Licensee to use the
Software when it is connected to the designated computer.
4.2. Subject to the terms of this Licence Agreement and the nature of the Licence granted
to the Licensee:
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(a) If a floating licence is granted to the Licensee, the Software may be installed on
as many devices as desired within the Licensee organisation but the Software
can only be active on a single machine at a time;
(b) If a fixed licence is granted to the Licensee, the Software is for the use of one
nominated person only and it can only be installed on one device at a time within
the Licensee organization. It is to de-activate the Software from the allocated
device and transfer it to another device within the Licensee organization as long
as the Software is only installed on one computer at a time;
(c) If a network licence is granted to the Licensee, the Licensee must not use or
permit use of the Software beyond the use authorised by the network licence.
The Licensee acknowledges that additional network fees may be payable if the
Software is used beyond one physical location;
(d) The Software may only be used for purposes directly relating to the Licensee’s
business.
4.3. Subject to the nature of the licence granted, the Licensee may physically transfer the
Software from one computer to another computer within the Licensee organisation
provided that the Licensee does not use or permit usage of the Software on more than
one computer at a time or which is contrary to the nature of the licence which has been
granted to the Licensee.
4.4. A Licensee, whether pursuant to a Perpetual Licence or a Subscription Licence, is not
entitled to transfer, sell, exchange or otherwise dispose of a licence including, without
limitation, the transfer, sale or disposal of a licence to a related entity.
5. LICENCE FEE AND SUBSCRIPTION FEE
5.1. The Licensee must pay Buildsoft the Licence Fee or the Subscription Fee by the date
designated on the quote or invoice (as applicable) and in accordance with the Terms
and Conditions of Sale.
5.2. In the case of the Software being supplied by dongle, if the computer on which the
Software is installed or the dongle is lost or stolen, Buildsoft will only provide a
replacement serial number or dongle if a further Licence Fee or Subscription Fee is
paid by the Licensee (being the relevant fee published by Buildsoft as at the date that
the Licence Fee or Subscription Fee is to be repaid). The Licensee should ensure that
it is appropriately insured for these circumstances.
5.3. If Buildsoft improves or modifies the content, usability or performance of the Software,
the Licensee will only be entitled to such improved or modified Software (or any
service packs which enable the update of the Software supplied to the Licensee under
this Licence Agreement) if:
(a) The Licensee is entitled to such improved or modified Software pursuant to a
valid Software Assurance Agreement; or
(b) A further licence fee is paid by the Licensee (being the relevant fee published by
Buildsoft as at the date that the further licence fee is to be repaid).
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5.4. If the Licensee fails to pay the Licence Fee or the Subscription Fee in accordance with
the payment terms, the Licensee may be subjected to late fees, additional
administration fees or other costs incurred by Buildsoft in connection with the
enforcement of the terms and conditions of the Quote or the Invoice, as applicable,
including but not limited to administration fees, debt collection fees, sheriff’s fees and
legal fees.
6. MONEY BACK GUARANTEE
6.1. To the extent permitted by law, the money back guarantee offered pursuant to this
clause 6 applies exclusively to:
(a) A Perpetual Licence granted to a Licensee acquiring a licence of any kind from
Buildsoft for the first time only; and
(b) Buildsoft proprietary Software;
but expressly excludes:
(c) Any software products or other items which Buildsoft sells to the Licensee as a
reseller;
(d) Any additional fees (other than the Licence Fee) paid by the Licensee including
without limitation fees for Software Assurance Services, training, installation and
modifications to the Software provided by Buildsoft.
For the sake of clarity, this money back guarantee does not apply to any Subscription
Licence.
6.2. In the case of a new Licensee purchasing a Licence for the first time, if the Licensee
decides within 30 days of the Commencement Date that it does not wish to keep the
Software, the Licensee may notify Buildsoft of this in writing prior to the expiry of 30
days from the Commencement Date. The Licence to use the Software will terminate
on the date of notification to Buildsoft.
6.3. Subject to clause 6.5, Buildsoft will refund the Licence Fee only paid by the Licensee
as soon as practical after the date of termination. The Licensee acknowledges that, to
the extent permitted by law, the refund is limited to the amount of the Licence Fee paid
by the Licensee and specifically excludes any fees relating to training, installation,
service and upgrade supplied and paid for in connection with the Software.
6.4. The parties agree that upon termination of the Licence Agreement in accordance with
this clause 6, all rights granted by Buildsoft to the Licensee shall cease immediately
and the Licensee must immediately:
(a) Stop using the Software;
(b) Return to Buildsoft all copies (including any modified copies) of the Software and
the dongle (if such was provided by Buildsoft);
(c) Delete all data produced by the Software; and
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(d) Buildsoft reserves the right to request a Statutory Declaration to confirm that the
above has been carried out.
6.5. Buildsoft reserves the right to:
(a) Refuse to provide a refund in accordance with clause 6.3 if Buildsoft reasonably
believes that the Licensee is acting in an unacceptable manner or attempting to
abuse the terms of this Licence Agreement; and
(b) In its absolute discretion, cancel, suspend or modify the Money Back Guarantee
offered under this clause 6. If, at the time of cancellation, suspension or
modification, a Licensee remains within the 30 day period of the Commencement
Date, Buildsoft will honor the Money Back Guarantee for the original 30 days
from the Commencement Date.
7. BUILDSOFT’S OBLIGATIONS
7.1. Buildsoft must supply the Software to the Licensee as soon as practicable after the
Licence Fee or Subscription Fee is paid.
8. LICENSEE’S OBLIGATIONS
8.1. The Licensee must not, directly or indirectly:
(a) Copy or reproduce the Software in any form;
(b) Alter, modify, adapt, translate, tamper with, reverse engineer or attempt to
reverse engineer, decompile, disassemble or create derivate works based on the
Software in any way;
(c) Allow the Software to be combined with or incorporated into any other software
without the prior written consent of Buildsoft;
(d) Modify or remove any proprietary notices or labels on the Software;
(e) Assign, sell or sub-licence the Software or any rights or obligations under this
Licence Agreement without the prior written consent of Buildsoft which Buildsoft
reserves the right to withhold;
(f) Permit third parties to benefit from the use or functionality of the Software outside
the usual course of the Licensee’s business.
8.2. The Licensee acknowledges that it has no rights of ownership in the Software.
8.3. The Licensee acknowledges that any copies, reproductions, alternations,
modifications, adaptations or derivatives or any computer programs or other property
combined or incorporated with the Software and any intellectual property created as a
result shall be the property of Buildsoft and will do all things necessary to vest
ownership in Buildsoft.
8.4. The Licensee acknowledges that this agreement indemnify Buildsoft from wearing
any cost of training, services, upgrades, software purchases or additional software
purchases bought by a company that has taken any step to appoint a receiver, a
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receiver and manager, a liquidator, a provisional liquidator, an administrator or other
like person of a whole or any part of the Licensee's assets or business.
8.5. The Licensee acknowledges that this agreement indemnify Buildsoft from wearing
any cost of training, services, upgrades, software purchases or additional software
purchases bought by a company that has afterward been found out to be in breach of
this Licence Agreement.
8.6. The Licensee must:
(a) Use the Software only in accordance with the guidelines and manuals contained
in the Software;
(b) Comply with all reasonable directions of Buildsoft;
(c) Use its best endeavours and take all necessary steps to safeguard the Software
and to ensure that there is no unauthorised use or access of the Software;
(d) Notify Buildsoft immediately if the Licensee becomes aware of any unauthorised
use or access of the Software by any person.
9. CONFIDENTIALITY
9.1. The Licensee agrees that the Software is valuable commercial information which is
confidential to Buildsoft.
9.2. The Licensee shall take all reasonable steps to maintain and safeguard the
confidentiality of the Software and to ensure that its employees and agents maintain
the confidentiality of the Software.
9.3. The Licensee undertakes that it will not disclose any other confidential information
belonging to Buildsoft which it may become aware of in the course of performing its
obligations under this Licence Agreement.
9.4. The Licensee will promptly notify Buildsoft of any breach of confidence by any person
and agrees to provide all reasonable assistance to Buildsoft in connection with any
proceedings which Buildsoft may commence for such breach.
9.5. The Licensee acknowledges that Buildsoft may terminate this Licence Agreement in
the event of a breach of Buildsoft’s confidential information.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. The Licensee acknowledges and agrees that all Intellectual Property Rights in the
Software are and remain the sole property of Buildsoft and that this Licence
Agreement does not transfer to the Licensee any Intellectual Property Rights in the
Software.
11. WARRANTIES
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11.1. Buildsoft warrants that it has the full right, power and authority to enter into this
Licence Agreement and to grant the Licensee all rights which are conferred under this
Licence Agreement.
11.2. Buildsoft warrants that the Software will conform to Buildsoft’s specifications current as
at the Commencement Date of this Licence Agreement.
11.3. The Licensee acknowledges that Buildsoft does not warrant that the Software is free
from defects or errors or will operate without interruption and that the existence of any
defects or errors or interruptions does not constitute a breach of this Licence
Agreement.
11.4. The Licensee acknowledges it relies upon its own skill and judgment as to the utility of
the Software for the purposes to which it intends to apply it and that it has made all
reasonable enquiries as to whether the Software is fit for the intended purpose before
entering into this Licence Agreement.
12. LIMITATION OF LIABILITY
12.1. To the extent permitted by law, all express or implied warranties, representations,
statements, terms and conditions are excluded from this Licence Agreement.
12.2. Where a condition or warranty is implied into this Licence Agreement by a law which
cannot be excluded, the liability of Buildsoft is limited to, at Buildsoft’s option:
(a) The replacement of the Software; or
(b) The payment of the costs of having the Software replaced; or
(c) Refund of the Licence Fee.
12.3. The aggregate liability of Buildsoft to the Licensee, whether arising from breach of
contract, negligence or any other tort, in equity or otherwise and whether or not
Buildsoft was advised of the possibility of such loss or damage, is limited to the
Licence Fee paid by the Licensee under the terms of this Licence Agreement.
12.4. In no circumstances shall Buildsoft be liable under or relating to the terms of this
Licence Agreement for any indirect, incidental, special or consequential loss or
damage, loss of use, revenues, profits, goodwill, loss of opportunities, loss of or
corruption of data from any causes, whether arising from a breach of contract,
negligence or any other tort, in equity or otherwise.
13. INDEMNITY
13.1. The Licensee releases and indemnifies Buildsoft from and against all liabilities, claims,
damages, suits, expenses, causes of action, injuries or losses brought by any person
arising in any way from the exercise by the Licensee of its rights under this Licence
Agreement or use by any person of the Software.
14. TERM AND TERMINATION OF THE LICENCE AGREEMENT
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14.1. A Perpetual Licence will commence on the Commencement Date and will continue in
perpetuity unless terminated in accordance with clause 6 (Money Back Guarantee) or
clause 14 (Termination) of this Licence Agreement.
14.2. A Subscription Licence will commence on the Commencement Date and will continue
for the term of the Subscription Licence unless terminated in accordance with clause
14 (Termination) of this Licence Agreement.
14.3. Buildsoft may terminate this Licence Agreement by notice in writing if:
(a) The Licensee breaches a provision of this Licence Agreement and the breach is
not remedied within thirty (30) days after receiving notice of the breach;
(b) Any Licence Fee or Subscription Fee payable in connection with this Licence
Agreement is not paid;
(c) Any step is taken to enter into any scheme of arrangement between the
Licensee and its creditors;
(d) Any step is taken to appoint a receiver, a receiver and manager, a liquidator, a
provisional liquidator, an administrator or other like person of the whole or any
part of the Licensee’s assets or business;
(e) The Licensee breaches the obligations of confidentiality of this Licence
Agreement (clause 9);
(f) Any employee, contractor, agent or representative of the Licensee engages in
inappropriate or abusive behavior towards any employee, contractor, agent or
representative of Buildsoft
14.4. The parties agree that upon termination of the Licence Agreement, all rights granted
by Buildsoft to the Licensee shall cease immediately and the Licensee must
immediately:
(a) Stop using the Software;
(b) Return to Buildsoft all copies (including any modified copies) of the Software and
the dongle (if such was provided by Buildsoft);
(c) Uninstall all copies of the Software; and
(d) Delete all data produced by the Software.
14.5. The parties acknowledge that clauses 6 (Money Back Guarantee), 9 (Confidentiality),
10 (Intellectual Property Rights), 11 (Warranties), 12 (Limitation of Liability) and 13
(Indemnity) shall continue to have full force and effect following the termination of this
Licence Agreement.
15. GENERAL
15.1. This Licence Agreement constitutes the entire agreement between the parties as to its
subject matter and supersedes any prior understanding or agreement between the
parties and any prior condition, warranty, indemnity or representation given by
Buildsoft.
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15.2. The provisions of this Licence Agreement cannot be varied, except by agreement in
writing duly signed on behalf of the parties.
15.3. This Licence Agreement shall be governed by the laws of New South Wales. The
parties agree to submit to the non-exclusive jurisdiction of the Courts of New South
Wales, Australia.
15.4. Any notice required or permitted by this agreement by the Licensee shall be deemed
to have been duly given if in writing and delivered personally, sent by registered mail,
or email to Buildsoft at the address or email address specified in this Licence
Agreement:
(a) By email to: support@buildsoft.com.au;
(b) By post to: Building B, Suite 301, 4 Hyde Parade Campbelltown NSW 2560
15.5. Any notice required or permitted by this agreement by Buildsoft shall be deemed to
have been duly given if sent to the Licensee’s registered address, if sent by email to
any email address given to Buildsoft by the Licensee or any email address that is
publicly available.
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