CADIMAGE GROUP (NZ)
ARCHICAD LIVE SUBSCRIPTION TERMS AND CONDITIONS
1. about these terms
1.1 This Agreement is between Cadimage Group (NZ) Limited (the "Supplier") and you, the person or organisation named in the ARCHICAD LIVE Subscription sign up process ("you" or the "Customer").
1.2 This Agreement applies to the provision by Supplier of the ARCHICAD software and Cadimage Tools under the LIVE Subscription service and the Support Services to you. By signing up to a LIVE Subscription, you accept and agree to be bound by this Agreement, and you confirm that you have authority to bind any business on whose behalf you signed up to the LIVE Subscription. If you do not accept the terms of this Agreement, you should not sign up to a LIVE Subscription.
1.3 The ARCHICAD software is owned and licensed to you by GRAPHISOFT. Your use of the ARCHICAD software is governed by GRAPHISOFT's End User Licence Agreement ("EULA") and Licence Subscription Amendment ("LSA"), both of which you are required to accept as part of the LIVE Subscription and before you may use the ARCHICAD software.
2.1 In this Agreement:
"Additional Charge" means a charge in accordance with the Supplier's standard rates in effect from time to time.
"Agreement" means these Terms and Conditions.
"ARCHICAD" means the software licensed by GRAPHISOFT known as ARCHICAD and for use on Windows and Macintosh platforms.
"Billing Date" means the date five (5) days prior to the end of the current Term.
"Cadimage Tools" means any add-ons provided by the Supplier to the Customer in conjunction with the LIVE Subscription from time to time.
"Fees" means the amounts payable by the Customer to the Supplier for its licence and use of ARCHICAD and Cadimage Tools under its LIVE Subscription, as set out on the Supplier's website.
"LIVE Subscription" means the monthly licence subscription plan relating to the ARCHICAD software licensed by GRAPHISOFT to the Customer and the Cadimage Tools.
"GRAPHISOFT" means GRAPHISOFT SE, Budapest, Hungary, manufacturer of the ARCHICAD software.
"Normal Business Hours" means 9.00am to 5.00pm (New Zealand time) Monday to Friday excluding public holidays in New Zealand and the business days that fall between Christmas and New Year.
"Support Services" means the support services described in clause 5.
"Term" means a rolling 30 day period, with the first such period commencing on the date that the Supplier sends Authentication Key for the Customer to activate its LIVE Subscription and continuing thereafter until terminated in accordance with this Agreement.
3. Term of Agreement
3.1 This Agreement commences on the date that the Supplier sends Authentication Key for the Customer to activate its LIVE Subscription to use ARCHICAD as licensed by GRAPHISOFT and automatically renews, subject to timely payment of the Fees, on a monthly basis until terminated by either party in accordance with clauses 10.1 to 10.3.
4. USE of the ARCHICAD software
4.1 The Customer's access to and use of ARCHICAD under a LIVE Subscription is subject to and governed by:
(a) the GRAPHISOFT Software License Agreement (End User License Agreement, "EULA"); and
(b) the GRAPHISOFT License Subscription Amendment ("LSA") to the EULA.
4.2 The Customer agrees to use and cause its users to use ARCHICAD and the Cadimage Tools solely for its own business purposes and in accordance with this Agreement, the EULA, LSA and all applicable laws.
4.3 Without limiting the above, and except where expressly permitted elsewhere in this Agreement, the Customer must ensure that it does not, and its users do not:
(a) attempt to undermine the security of any part of the ARCHICAD software or the Cadimage Tools or use them in a manner which may impair their functionality;
(b) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, make available or distribute all or any portion of the ARCHICAD software or the Cadimage Tools (as applicable) in any form or media or by any means to any party that is not licensed to use them under the Customer's LIVE Subscription;
(c) exceed or circumvent any usage restrictions (including as to the permitted number of users) that may apply to the Customer's LIVE Subscription from time to time;
(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the ARCHICAD software or the Cadimage Tools;
(e) access all or any part of the ARCHICAD software or the Cadimage Tools in order to build a product or service which competes with the Supplier's or GRAPHISOFT's products or services;
(f) use the ARCHICAD software or the Cadimage Tools in any way that would constitute a breach of a third party's rights; or
(g) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the ARCHICAD software or the Cadimage Tools available to any third party.
4.4 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the ARCHICAD software and the Cadimage Tools and, in the event of any such unauthorised access or use, promptly notify the Supplier.
5. Support Services
5.1 The Supplier will provide the Customer with Support Services while the Customer maintains its LIVE Subscription.
5.2 The Supplier will provide the Customer with the following Support Services:
(a) such corrected or modified local versions of ARCHICAD that GRAPHISOFT makes generally available to end users and such further releases and upgrades that GRAPHISOFT makes generally available to end users;
(b) priority e-mail support during Normal Business Hours;
(c) access to a range of content items including objects, tips and related learning aids via the https://www.mycadimage.com website;
(d) replacement by GRAPHISOFT of stolen or damaged ARCHICAD protection key upon production of a satisfactory police report and in accordance with GRAPHISOFT's applicable terms and conditions; and
(e) such discounted ARCHICAD-related training, seminars, object libraries and add-on products as the Supplier may provide from time to time.
5.3 Where the Customer accepts corrected or modified versions, updates and new releases, this Agreement applies in all respects to the extent that they are incorporated in or replace the then current version of the ARCHICAD software.
6. Support availability
6.1 The Supplier shall provide the Support Services in Normal Business Hours.
6.2 If the Customer requests the Supplier to provide on-site support, the Supplier will use reasonable endeavours to do so and will make an Additional Charge for providing such services and reasonable travel costs in accordance with the Supplier's standard rates from time to time.
6.3 The Supplier does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside Normal Business Hours or that it can provide on-site Support Services outside Normal Business Hours.
7.1 The Customer shall pay the Fees to the Supplier on a monthly non-refundable basis in advance of each month it wishes to maintain a LIVE Subscription to use ARCHICAD and receive Support Services. The Fees shall be charged to the Customer's credit card on the Billing Date of each month. If payment cannot be taken on the Billing Date, the Supplier will attempt to take payment again three (3) days later. If payment can still not be taken, the Supplier may terminate this Agreement (and the Customer's LIVE Subscription) on notice to the Customer.
7.2 Fees exclude New Zealand Goods and Services Tax (GST) which will be added (where applicable) at the applicable current rates. The Customer is responsible for payment of any taxes, levies or other similar payments required in its jurisdiction, and Customer indemnifies and holds Supplier harmless against any claims by any tax authority for any underpayment or any tax or levy, and any penalties and/or interest.
7.3 All payments required under this Agreement shall be made without set-off or deduction for any claim the Customer may have against the Supplier or GRAPHISOFT in connection with ARCHICAD or this Agreement. Without prejudice to any other right or remedy the Supplier may have, all outstanding money owed to the Supplier will carry interest on daily balances until paid at a rate of interest per annum equal to two percent (2%) higher than the ANZ Bank commercial overdraft bank rate (monthly charging cycle).
7.4 The Supplier may make an Additional Charge for services requested by the Customer and provided by the Supplier if such services are not included in this Agreement or are specifically excluded from this Agreement.
7.5 Fees are subject to change at any time, however the Supplier will give the Customer 30 days' notice of any fee changes by posting changes on its website at https://www.mycadimage.com. The Supplier will not be liable to the Customer or any third party for any changes to Fees.
8.1 The Customer can downgrade its LIVE Subscription it receives at any time by following the steps on www.mycadimage.com. The downgrade will become effective from the beginning of the next 30 day Term. No refunds will be paid in respect of any unused portion of higher offering.
8.2 Downgrading may cause the loss of content, features or capacity. If Customer chooses to downgrade, the Supplier does not accept any liability for the resulting loss of data, content, features or capacity.
9. intellectual property, licensing and data
9.1 The Customer acknowledges that all intellectual property rights (including copyright, database, trade mark, design, patent, semiconductor or circuit layout rights and rights over confidential information, trade secrets and know how) in the ARCHICAD software, the Cadimage Tools and any other goods and services provided by the Supplier to the Customer belongs to Supplier, GRAPHISOFT, and/or other licensors.
9.2 The Supplier and/or its licensors or suppliers owns all intellectual property rights existing in ARCHICAD, the Cadimage Tools, including all of the content of ARCHICAD (such as text, graphics, logos, icons and sound recordings), all newsletters or other information which the Customer subscribes to receive from the Supplier, all software code underlying and forming part of ARCHICAD and any improvements, enhancements, modifications or adaptations to ARCHICAD.
9.4 Any written materials accompanying ARCHICAD shall not be copied and the software shall not be modified, merged or included with other software nor shall it be reverse assembled or reverse compiled or otherwise reduced to human perceivable form.
9.5 ARCHICAD is licensed to the Customer only and may not be on-sold, assigned, sub-licensed or transferred without written consent from the Supplier (or GRAPHISOFT). Consent will be given or withheld at complete discretion of the Supplier (or GRAPHISOFT).
10.1 The Customer may terminate its LIVE Subscription at any time prior to the Billing Date by using the 'Cancel Subscription' function on the mycadimage.com website. Termination will take effect at the end of the current pre-paid period (and the Customer will not be entitled to any refunds for amounts paid in advance).
10.2 If the Customer's EULA or LSA is terminated for any reason, then this Agreement will also terminate.
10.3 GRAPHISOFT may terminate Customer's EULA or LSA (and consequently its LIVE Subscription) at any time by giving the Customer 180 days' notice of termination. In such case this Agreement will also terminate as from the same date without any further notice from Supplier to Customer and without any legal consequences for Supplier or GRAPHISOFT. After the date of termination, the Customer may access any content it has stored in ARCHICAD by using the Demo Mode of ARCHICAD.
10.4 The Supplier may terminate this Agreement:
(a) pursuant to clause 7.1; or
(b) immediately on written notice to the Customer if the Customer breaches any of its obligations under this Agreement and fails to remedy the breach within five days of receiving notice requiring the breach to be remedied.
10.5 On termination of this Agreement:
(a) any outstanding amounts due to the Supplier will become immediately due and payable;
(b) the Supplier will cease to provide, and the Customer will cease to have any entitlement to, the ARCHICAD LIVE Subscription, the Cadimage Tools or the Support Services.
11. Warranties and limitation of liability
11.1 Each party acknowledges that the goods and services provided by the Supplier are supplied for Customer's business use and that the provisions of the Consumer Guarantees Act 1993 does not apply.
11.2 The Supplier will give the Customer all reasonable assistance where a product is not in accordance with any manufacturer's warranty but the Supplier does not give any warranties, express or implied.
11.3 There may be factors beyond the Supplier's control affecting the ultimate success of the use to which the Supplier's goods and/or services are being provided. Consequently, these terms replace all other representations and warranties (statutory, express, written or oral) and all such representations and warranties (except any which cannot lawfully be excluded) are expressly excluded.
11.4 The Supplier will not under any circumstance be liable under the law of tort, contract or otherwise for any loss of profits, savings or data, inability to use, or for any indirect loss or consequential loss or damage, however caused, arising out of or in conjunction with the performance or non-performance of the supply of any goods and services.
11.5 The Supplier's liability for any breach of this Agreement relating to supply of the Support Services is limited, at the option of the Supplier, to
(a) re-supply of the relevant Support Services; or
(b) payment to the Customer of the amount paid by the Customer for the relevant Support Services.
11.6 The Supplier will not be liable for any claim, loss or damage arising from or in connection with the ARCHICAD software, its operation, performance (or non-performance) or claims relating to it. The Customer acknowledges that its rights and responsibilities in respect of the ARCHICAD software are set out in and governed exclusively by the EULA and LSA.
11.7 The Supplier's liability for any other breach of this Agreement or otherwise howsoever shall not exceed the total consideration payable to the Supplier by Customer for the particular product and/or service in dispute.
12. Links to other services, websites and apps
12.1 Mycadimage.com may enable the Customer to access other applications and websites. Even though these applications and websites are accessible through Mycadimage.com, they are not owned and controlled by the Supplier. Any links to third party websites are provided for convenience only, and the inclusion of any link does not imply that the Supplier endorses or verifies such websites. The Supplier is not responsible or liable for any loss or damage incurred as a result of the Customer's access to those applications and websites.
13.1 Any notices to be given under this Agreement must be in English and sent by email to:
(a) in the case of the Supplier, to email@example.com; and
(b) in the case of the Customer, to the email address provided during the account registration process.
Notices shall be deemed to be received at the time of sending, unless sent outside Normal Business Hours in which case they shall be deemed to be received at 9am (NZ time) on the next Business Day.
13.2 The Supplier will not be liable for any delay or failure to perform its obligations if such delay or failure is due to force majeure.
13.3 The Customer may not assign or transfer its rights under this agreement without the consent of the Supplier, not to be unreasonably held. The Supplier may assign or transfer some or all of its rights under this Agreement to GRAPHISOFT or to its direct affiliate at any time. The Customer acknowledges that the Supplier may sub-contract the performance of its obligations under this Agreement without first obtaining Customer consent. Taking into account that Supplier is able and entitled to enter into and duly perform this Agreement as an authorized GRAPHISOFT Distributor, if Supplier ceases to be an authorized GRAPHISOFT Distributor for any reason during the initial or renewal Term of this Agreement, this Agreement shall automatically be assigned and transferred to GRAPHISOFT who shall replace the Supplier and as such shall (itself or through a third party) ensure the provisions of the LIVE Subscription and the Services to Customer against the payment of the Fees by the Customer directly to GRAPHISOFT according to the terms and conditions of this Agreement.
13.4 It is the intention of both parties to work in good faith toward the accomplishment of the objectives that form the basis of this Agreement. In the event of any dispute arising in connection with this Agreement, which cannot be settled by a negotiation between the parties or their representatives, it shall be submitted to arbitration by a sole arbitrator in accordance with the Arbitration Act 1996.
13.5 If any of these terms and conditions is illegal, invalid or unenforceable, the rest of the terms shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
13.6 New Zealand law shall govern this Agreement and the parties hereby submit to the non-exclusive jurisdiction of the New Zealand Courts.