IMPORTANT, READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE OR ACCESS THE SOFTWARE. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE.
BY AGREEING TO THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE 18 YEARS OLD OR OLDER AND CAPABLE OF ENTERING INTO A LEGALLY BINDING AGREEMENT.
IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
If an executed agreement exists between you and the Passive House Institute at any time regarding the Software, the terms of that agreement shall supersede the terms of this Agreement in its entirety. Thus, if you enter into a separate written agreement with the Passive House Institute regarding the Software, that agreement (not this one) will control your use of the Software; and further if that agreement is terminated, you will not have the right to use the Software under the terms of this Agreement after termination.
This Software End User License Agreement (“Agreement”) is between the Passive House Institute, located at Rheinstraße 44/46, 64283 Darmstadt, Germany, or the affiliate/reseller identified on the Order Form and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user (“you”). This Agreement covers any Software and supporting user or technical documentation provided with the Software (“Documentation”).
1. Definitions.
“Effective Date” means the earlier of the date you sign an Order Form or the date on which the Software is first made available to you.
“Order Form” means any order (which includes without limitation online orders) which is entered into by the Passive house Institute (or an authorized designPH distributor or reseller) and you under which you are provided the Software. Each Order Form for the Software shall be deemed a part of this Agreement. This Agreement is binding on you whether or not you executed an Order Form with the Passive House Institute. Order Forms may not vary the terms of this Agreement. Only a written agreement, signed by the Passive House Institute (not a designPH Reseller) may vary the terms of this Agreement.
“Software” means the designPH software for desktop devices (including without limitation, designPH Pro, designPH EDU and designPH DEMO) provided in connection with this Agreement in object code form (or as otherwise specified in any related Order Form).“Software” shall also include any releases provided to or purchased by you under any separate support and maintenance agreement you may enter into with the Passive House Institute . Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software.”
“designPH Reseller” means either the Passive House Institute or an authorized distributor or reseller of Passive House Institute software, literature or services which has entered into an Order Form with you.
2. License.
2.1. Grant of License.
Subject to all of the terms and conditions of this Agreement, the Passive House Institute grants you a non-transferable, non-sublicensable, non-exclusive, worldwide license to use the Software in machine-readable form on any computer and operating system which has a compatible working desktop version of SketchUp for which it was intended, but solely: (a) in accordance with the Documentation; and (b) in accordance with any additional license term, subscription term or other user, seat, computer, field of use or other restrictions set forth in the applicable Order Form or otherwise specified upon purchase. Subject to the terms and conditions of this Agreement, the Passive House Institute grants you a non-transferable, non-sublicensable, non-exclusive license to use the designPH features and functions available through the Software in connection with the normal course of the operation of such Software.
2.2. Installation.
The Passive House Institute and/or designPH Resellers may make available the Software and Documentation by disk or other media, or for download in electronic form. The Passive House Institute shall also provide you with electronic passwords or other enabling mechanisms if necessary to permit the licensed usage of the Software. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date (or, if later, such date on which the Software and license keys are first made available to you). If your Order Form is with a designPH Reseller, that designPH Reseller (and not the Passive House Institute) is solely responsible for delivery to you and the Passive House Institute has no liability for any failure to deliver. If the Software requires license keys to operate as licensed to you, the Passive House Institute or the applicable designPH Reseller will deliver such license keys to you.
2.3. Software Intended to be Installed on Computers.
You may copy and install on your computers for use only by your employees the number of copies of the Software for which you have paid the applicable license fee. You may transfer the Software from one computer to another computer by de-activating the license on the prior computer and activating on the other. You may also make a reasonable number of copies of the Software for back-up and archival purposes.
2.4. License Restrictions.
You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) copy (except as expressly permitted in this Agreement), modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by the Passive House Institute; (e) attempt to circumvent or disable the security key mechanism that protects the Software against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (g) use or host the Software in a virtual server environment; (h) merge the Software with any other data, information and content; or (i) use the Software other than as expressly permitted by the Agreement, including without limitation for commercial purposes such as redistribution or publication in exchange for a fee or other consideration, advertising, or for use in marketing and promotional materials. You acknowledge that you need to obtain a separate distribution license from the Passive House Institute in order to distribute or publish the Software or any derivative in any form not expressly permitted in the Agreement.
2.5. DEMO Software.
Subject to the terms and conditions of this Agreement, you may choose to download designPH DEMO for a trial period for 30 days from the date the Software is first run (unless otherwise agreed by the Passive House Institute in writing) (the “DEMO Period”), without charge, solely for your evaluation purposes of its functionality. The time remaining during the DEMO will be displayed within the Software. Upon the expiration of the DEMO Period, the Software will automatically cease to operate.
2.6. Educational Versions.
If you are a qualified instructor at an accredited educational institution, or you are an enrolled student at an accredited educational institution and use the Software in your classwork, you may use the Software for classroom teaching purposes, and classwork purposes (“Educational Version”). This includes installation and use of the Software in teaching labs at an educational institution, provided that use of the Software is by enrolled students who are engaged in classroom learning activities at the educational institution. However, if you are an employee of an educational institution and your job responsibilities are not those of a qualified instructor, you must purchase a designPH Pro commercial license. Educational Versions of the Software are for educational purposes only and may not be used for commercial, professional or other for-profit purposes. For example, but not as a limitation, if you are employed as a member of the professional staff of an educational institution such as the facilities management team, you are considered to be engaged in for-profit activity and you must purchase a designPH Pro commercial license. In addition, other terms and conditions may apply to Educational Versions including without limitation, screening or author criteria as may be set by the Passive House Institute from time-to-time. Educational Versions are licensed for a one year term unless specified otherwise in the Order Form. Upon expiration of the one year term, your right and license to use the Educational Version of the Software expires and the Software will automatically become inoperable. Qualified instructors, students and institutions may purchase a license for an Educational Version of the Software annually upon meeting all program requirements described in this section.
3. Software Activation and Metering; Software Updates; Consent to Use of Data; Privacy
3.1. Software Activation and Metering.
The Passive House Institute may use your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration, use of or update to the Software, and for validating the authenticity of the license-related data in order to register your Software and protect the Passive House Institute against unlicensed or illegal use of the Software.
The Passive House Institute may include in the Software, a built-in license metering technology that helps you avoid any unintentional violation of this Agreement. You acknowledge that such metering module may send the Passive House Institute on-line notification confirming use of the Software. You will not disable, modify or interfere with the operation of any such module. The Passive House Institute may use your internal network for license metering.
The Passive House Institute will use information obtained per this Section 3.1 only for the purpose stated in this Section 3.1.
3.2. Software Updates.
The Software may notify and inform you when Updates to the Software are available. The Software allows you to request and receive Updates automatically, and does so by default, though you have the choice to disable this feature. Likewise, you will need to take action to download and install the software on your computer as this action does not happen automatically. “Updates” include maintenance releases, bug fixes, and minor updates to your current version of the Software.
3.3. Consent to Use of Data.
The Passive House Institute may, directly collect and use technical information, information about you, and/or data that you provide in relation to your use of the Software or the provision of maintenance and technical support for the Software. The Passive House Institute will not use such information in a form that personally identifies you except to the extent necessary to provide maintenance and technical support, or to enhance your use of the Software including requesting feedback on the Software, providing critical updates, notifications regarding pre-release Software, or to improve the Software. You acknowledge that, to the extent permitted by law, The Passive House Institute assumes no responsibility for storage of your data or information.
3.4. Privacy.
Protecting users' privacy is very important to the Passive House Institute. As a condition of downloading and using the Software, you agree to the terms of the Passive House Institute Privacy Policy at https://designph.org/privacy which may be updated from time to time and without notice. Information collected by the Passive House Institute in connection with your license and use of the Software may be stored and processed in Germany or any other country in which the Passive House Institute or its designPH resellers maintain facilities. Accordingly, by using the Software you consent to any transfer of such information outside of your country. You acknowledge and agree that the Passive House Institute may access, preserve, and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam); (d) respond to user support requests; or (e) protect the rights, property or safety of the Passive House Institute, its users, and the public. The Passive House Institute will not be responsible or liable for the exercise or non-exercise of rights under this Agreement.
4. Ownership.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, the Passive House Institute and its resellers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
5. Payment.
You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Order Form. All payments shall be made in advance prior to delivering a Software license, unless otherwise specified in writing by the Passive House Institute or the applicable designPH Reseller. Except as expressly set forth herein, all fees are non-refundable once paid. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of the Passive House Institute or the designPH Reseller).
6. Term of Agreement.
6.1. Term.
This Agreement is effective as of the Effective Date and expires at such time as all license and subscriptions hereunder have expired in accordance with their own terms (the “Term”). You may also terminate this Agreement at any time by permanently deleting the Software in its entirety. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). If you have entered into a separate written agreement with the Passive House Institute which governs the Software and that agreement is terminated, then this Agreement automatically terminates and you shall no longer have any right to use the Software. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. For clarity, even if you have entered into an Order Form with a designPH reseller, you agree that the Passive House Institute is a third party beneficiary to that Order Form and has the right to terminate this Agreement as set forth in this Section 6 (Term of Agreement).
6.2. Termination.
Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to the Passive House Institute in writing.
6.3. Survival.
Sections 2.5 (License Restrictions), 4 (Ownership), 5 (Payment), 6.3 (Survival), 7 (Warranty Disclaimers), 8 (Indemnity), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 11 (Compliance with Laws), and 12 (General) shall survive any termination or expiration of this Agreement.
7. Warranty Disclaimers.
THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS.” NEITHER THE PASSVE HOUSE INSTITUTE NOR ITS RESELLERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE PASSIVE HOUSE INSTITUTE MAKES NO WARRANTY (i) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (iii) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, (iv) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, AND (v) REGARDING THE RESULTS OR OUTPUT OF THE SOFTWARE. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. THE PASSIVE HOUSE INSTITUTE MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY COMPONENTS OF THE SOFTWARE.
For the avoidance of doubt, the Passive House Institute does not assume and will not have any liability arising from events beyond the Passive House Institute’s control or the control of its subcontractors, other developers, business partners or licensors, including events such as acts of God, acts of any governmental entity, acts of a public enemy, strikes, natural disasters, or failure or diminishment of power or telecommunications or data networks or services.
8. Indemnity.
You agree to hold harmless and indemnify the Passive House Institute and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your misuse of the Software or your violation of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, the Passive House Institute will provide you with written notice of such claim, suit or action.
9. Limitation of Remedies and Damages.
9.1. NEITHER THE PASSIVE HOUSE INSTITUTE NOR ITS RESELLERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PASSIVE HOUSE INSTITUTE AND ITS RESELLERS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO THE PASSIVE HOUSE INSTITUTE UNDER THIS AGREEMENT.
9.3. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMERGENCY, MISSION CRITICAL OR OTHER STRICT LIABILITY OR HAZARDOUS ACTIVITIES (“ HIGH RISK ACTIVITIES”). THE PASSIVE HOUSE INSTITUTE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE SOFTWARE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND AGREE THAT THE PASSIVE HOUSE INSTITUTE WILL HAVE NO LIABILITY FOR USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE PASSIVE HOUSE INSTITUTE FOR ANY DAMAGES, LIABILITIES OR OTHER LOSSES RESULTING FROM SUCH USE.
9.4. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. Confidential Information.
Any software, documentation or technical information provided by the Passive House Institute (or its agents) shall be deemed “Passive House Institute Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Passive House Institute Confidential Information. You acknowledge that disclosure of Passive House Institute Confidential Information would cause substantial harm to the Passive House Institute that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, the Passive House Institute shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
11. Compliance with Laws
You are responsible for complying with all applicable laws, regulations and codes of practice in your use of the Software and any results derived from the Software.
12. General.
12.1. Assignment.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. You may not assign or transfer this Agreement, in whole or in part, without the Passive House Institute’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
12.2. Severability.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3. Governing Law; Jurisdiction and Venue.
12.3.1. This Agreement is governed by the German laws without regard to conflicts of laws provisions thereof. In such case the jurisdiction and venue for actions related to the subject matter hereof are the Courts of Hessen, Germany and both parties hereby submit to the personal jurisdiction of such courts.
12.4. Notices and Reports.
Any notice or report hereunder shall be in writing. If to the Passive House Institute, such notice or report shall be sent to the Passive House Institute. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (a) upon receipt if by personal delivery; or (b) upon receipt if sent by certified or registered mail (return receipt requested).
12.5. Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
12.6. Entire Agreement; English Language Version.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any Order Form or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. The section headings in this Agreement are for convenience only and have no legal or contractual effect. This Agreement can be found online at https://designph.org/licence. The official language of these Terms of Use is English. If there is a conflict between the English language version and any translation, the English language version will control.
12.7. Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.8. Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost.
12.9. Audit.
Upon the Passive House Institute’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). The Passive House Institute, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Software to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use and for unpaid license fees.
12.10. Publicity/Press Releases.
You shall not issue or make any press releases, publications or public references regarding your relationship with the Passive House Institute unless you first inform the Passive House Institute of such proposed publicity, submit all proposed publicity materials to the Passive House Institute for review and obtain the Passive House Institute’s prior consent in writing, in each particular instance.
12.11. Third-Party Software and Content.
Neitherthe Passive House Institute nor designPH Resellers offer any warranty in connection with any Third-Party Software and neither the Passive House Institute nor designPH Resellers shall be liable to you for such Third-Party Software.
© Passive House Institute – All rights reserved
designPH End User License Agreement, Version "A", May 2019
Passive House Institute .
Rheinstrasse 44/46
64283 Darmstadt
Germany