POINTFUSE SOFTWARE END USER LICENCE AGREEMENT (“EULA”)
This End User Licence Agreement (“EULA”) is a legal and binding agreement between Arithmetica Limited (“Arithmetica”) and the party (“Licensee”) who has clicked “Accept” on installation, or who has executed a written agreement incorporating this EULA, or who otherwise accesses or uses the Software and/or any Arithmetica Data. This EULA grants limited rights to use of the Software, subject to the terms and conditions herein, all of which the Licensee accepts. By accepting this EULA and/or by using and/or by accessing the Software and/or any Arithmetica Data, the Licensee agrees to be legally bound by all the terms and conditions herein. Arithmetica and the Licensee may be referred to individually as a “Party” and collectively as the “Parties”. All rights, licences and permissions granted by Arithmetica hereunder are strictly conditional upon the Licensee’s acceptance of and continuous adherence to all the terms and conditions of this EULA and payment of the licence fee due before use.
“Agreement” and/or “Licence Agreement” shall mean this Licence Agreement and any and all documents incorporated by reference.
“Data” means, without limitation, point cloud files in LAS, PTS, FLS, LAZ, XYZ or PTX file formats, vector models in PFF, DXF or IFC file format, or any other Data in any format readable by the Software, including positioning and/or location information, colour, intensity or any other features. Data shall include videos or images, photographic or cinematographic depictions and similar content produced and compiled by and/or made available for viewing and use by means of use of the Software, or by any other means, including screenshots of the Software, and any modifications or derivations arrived at by use of the Software or Data. Data shall include Arithmetica Data and Licensee Data.
“Field of Use” means, unless otherwise agreed in writing by Arithmetica, use by the Licensee’s operations only and shall expressly exclude any distribution, dissemination, copying or modification of the Software whatsoever. The Licensee does not and will not acquire title to the Software, nor any Data licensed to Licensee by Arithmetica.
“Licensee Data” means Data gathered, created, authored, developed, compiled or changed to useful form, together with any modifications or derivations thereto, by Licensee’s permitted use of the Software within the Field of Use.
“The Software” means without limitation, Pointfuse Software.
“Arithmetica Data” means Data gathered, created, authored, developed, compiled, included or supplied by Arithmetica Ltd together with any modifications or derivations thereto, by Licensee’s permitted use of the Software within the Field of Use.
2. GRANT OF LICENCE
Subject to Licensee’s compliance with all the terms and conditions of this EULA, for the term of the Licence and subject to payment of the licence fee due, Arithmetica hereby grants to the Licensee, subject to the restrictions set forth, a personal, non-transferable, non-exclusive, revocable and limited licence to use the Software and, if provided by Arithmetica, any Arithmetica Data within the Field of Use.
Unless otherwise agreed by Arithmetica in writing, the Licensee may install and use the Software and any Data for the purposes of viewing point clouds and viewing vector models in PFF format in perpetuity, and for the duration of the Licence term, for the purposes of converting point clouds to vector models in DXF or IFC formats. The Licensee may use the Software only on one (1) computer and that computer must be running a validly licensed copy of the operating system for which the software was designed.
All rights not expressly granted herein are reserved by Arithmetica. Other than as expressly permitted by Arithmetica in writing, the Licensee will not:
a) Copy, distribute or otherwise transfer the Software in any way, except with this EULA.
b) License or sublicense, or attempt to license or sublicense, publish or disseminate the Software.
c) Modify or create derivative works or derivative versions of or replicate the Software.
d) Use the Software to create any software with similar functionality.
e) Use the Software to copy, use or distribute any Data, including Licensee Data, outside the Field of Use unless otherwise agreed to in writing by Arithmetica;
f) Use any Arithmetica Data to create data with similar functionality.
g) Reverse engineer, decompile, disassemble, reverse compile or otherwise seek to derive source code from the Software or any Arithmetica Data. The Software and Arithmetica Data constitute Confidential and Proprietary information of Arithmetica, which will be used by Licensee only pursuant to the provisions of this EULA and will not be used or disclosed otherwise. In the event that Licensee breaches this EULA, the Licensee acknowledges and agrees that Arithmetica will suffer irreparable harm, which cannot be properly compensated by money damages, and Licensee agrees to, and provides any necessary consent to, Arithmetica seeking equitable remedies, including an injunction and specific performance, without the necessity to post bond or security or prove or show the likelihood of loss or damage, in order to restrain any breach by Licensee and to compel performance by Licensee of this EULA.
h) Copy any written documentation accompanying the Software.
i) Remove or change any copyright or trademark, logo or other proprietary Software notices.
j) Rent or lease the Software.
k) Hide or obscure any Pointfuse or Arithmetica logo.
l) Pass off the Software as having been developed or owned by the Licensee or a third party.
4. OWNERSHIP & TITLE
The Licensee acknowledges and agrees that Arithmetica owns all right, title and interest in and to the Software and Arithmetica Data, including all copyrights, trade secrets and other intellectual property rights therein.
This EULA may be terminated at any time by Arithmetica upon any default hereunder by Licensee. Upon termination of this EULA for any reason, the Licensee shall immediately cease all use of and/or access to the Software and any Arithmetica Data. At the request of Arithmetica, the Licensee shall return or certify the destruction of all copies of the Software and any Arithmetica Data in its custody, control, power or possession.
In all cases, the Licensee uses and accesses the Software and the Data solely at Licensee’s own risk. Arithmetica makes, and the Licensee receives, no representation, warranty, condition or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Data. The Licensee acknowledges and agrees that Arithmetica does not represent or warrant that:
i. The use of the Software and/or the Data will be secure, timely, uninterrupted or error-free or operate in combination with any hardware, software, system or Data.
ii. The Software and/or the Data will meet Licensee’s requirements or expectations.
iii. The quality of the Software and/or the Data, or any products, services, additional services, information, or other material purchased or obtained by Licensee through the Software or the Data will meet Licensee’s requirements or expectations.
iv. Errors or defects will be corrected.
v. The Software or the Data are free of viruses or other harmful components.
The Software and the Data are provided to and/or used by the Licensee strictly on an “as is”, “where is” and “as available” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, or arising from usage or a course of trade, with respect to the Software or the Data, including, without limitation, any implied condition or warranty of merchantability, fitness for a particular purpose, compliance with any description, or non-infringement of third party rights, are hereby disclaimed by Arithmetica to the maximum extent permitted by applicable law.
7. LIMITATION OF LIABILITY
In no event shall Arithmetica be liable to the Licensee for any indirect, special, incidental, consequential, or punitive damages of any kind arising out of or relating to this EULA or Licensee’s use of the Software, or of the Data, or both, however caused, whether for breach of warranty or condition, breach or repudiation of contract, tort, negligence, breach of any duty, or otherwise, or for failure to realize expected savings, revenues, profits or results, even if Arithmetica has been advised of the possibility of such loss or damages. In all cases, any claim by the Licensee for compensation shall be limited, in every case to a maximum amount equal to the licence fee paid by the Licensee to Arithmetica under this EULA for a period of one year prior to such a claim arising.
8. GOVERNING LAW
This EULA and the rights and obligations of the Parties hereunder shall be governed by and interpreted in all respects in accordance with the laws of England. The Licensee covenants to not commence any class action litigation against Arithmetica.
The following provisions shall survive termination of this EULA for any reason: Sections 3 (“Restrictions”); 4 (“Ownership”); 5 (“Termination”); 6 (“Disclaimer”); 7 (“Limitation of Liability”) 8 (“Governing Law”); 10 (“Severance”); 13 (“Enurement”); 14 (“Duration”); 15 (“Indemnity”); and, 16 (“Title & Copyright”).
If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provisions of this Agreement, and all such other provisions shall remain in full force and effect, and it is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provisions shall have the meaning that renders it valid.
11. INDEPENDENT CONTRACTORS
No relationship of principal and agent will exist between the Licensee and Arithmetica. The parties will remain at all times independent contractors. In no event will either party (including their staff and/or subcontractors) be considered agents or employees of the other Party.
This EULA may not be assigned by the Licensee without the written permission of Arithmetica.
This EULA shall enure to the benefit of and be binding on the heirs, successors, representatives and permitted assigns of the parties.
The License is issued in perpetuity for the purposes of viewing point clouds and for viewing vector models in PFF format. Otherwise, the License is issued for the term of the Licence agreed on payment of the Licence fee and without exception for not more than twelve (12) months for the purposes of converting point clouds to vector models in DXF or IFC format. The duration period begins when the Licensee accepts the installation and this EULA.
The Licensee agrees to indemnify, defend and hold Arithmetica from and against any and all liabilities, damages, claims, fines and expenses (including reasonable legal fees) arising out of any breach by the Licensee of this EULA.
16. PROPERTY & COPYRIGHT
All title, all intellectual property rights including but not limited to copyrights, in and to the Software and any copies thereof are owned by Arithmetica. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants the Licensee no rights to use such content. All rights not expressly granted are reserved by Arithmetica. Software features and additional features made available by way of an update, may require third party copyright to be acknowledged.
18. PROPERTY & COPYRIGHT
All title and all intellectual property rights including but not limited to copyrights, in and to the Software and any copies thereof are owned by Arithmetica. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants the Licensee no rights to use such content. All rights not expressly granted are reserved by Arithmetica. Software features including any additional features made available by way of an update, may require third party copyright to be acknowledged or licence terms to be accepted.
19. THIRD PARTY COPYRIGHT ACKNOWLEDGEMENT
The following are used within the Software:
Faro SDK – available under FARO LS SDK 188.8.131.52662
Freeglut – released under the X-Consortium licence.
Freeglut Copyright – Freeglut code without an explicit copyright is covered by the following copyright: Copyright (c) 1999-2000 Pawel W. Olszta. All Rights Reserved.
IFC-SDK – released under the GNU Lesser General Public Licence, Version 2.1, February 1999
LasZip – released under the GNU Lesser General Public Licence, Version 2.1, February 1999
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