Software Products Terms

Click on arrows to view all product terms relating to each software product. Acceptance of these terms is required to use any software product provided by Enduroframe.

General Software Terms

BlueScope provides the Software Products, including Software Products available as Hosted Products or Licensed Products.

These General Software Terms set out the general terms and conditions on which BlueScope will provide the Customer with the Software Products. In addition to these General Software Terms, the Product Terms set out terms and conditions specific to each relevant Software Product. The Product Terms are available here: https://enduroframe.com/productterms or you can contact BlueScope and request a copy of the Product Terms.

By clicking the ‘I accept’ button or otherwise confirming the Customer’s acceptance of these General Software Terms electronically or by commencing use of the Software Product (General Software Terms Acceptance), the Customer agrees that it has read, understood and will be bound by these General Software Terms together with any Product Terms for the Software Products accessed or used by the Customer (collectively, the Agreement). The Agreement replaces and supersedes any prior agreements, contracts or other arrangements between the parties in relation to the Software Products.

If you are entering into the Agreement as an agent, officer, employee or other Representative of the Customer, you warrant to BlueScope that you have full legal authority to bind the Customer to the Agreement.

1               Definitions and interpretation

1.1         Definitions:

In these General Software Terms:

Aggregated Data means de-identified and/or aggregated data relating to the use of the Software Product. For the avoidance of doubt, Aggregated Data may include data regarding the use of the Software Product by the Customer, however the Aggregated Data will not include any information that identifies the Customer or any individual.   

Associated Documentation means the operating manuals, user guides, help systems, design manuals, training manuals, videos, learning management systems and any other documentation referred to in these General Software Terms or the Product Terms and any copies of those in relation to the Software Product which BlueScope generally makes available to its Customers and which are designed to assist or supplement the understanding or application of the relevant Software Product.

BlueScope means BlueScope Steel Limited  ABN 16 000 011 058 of Level 11, 120 Collins St, Melbourne, Victoria, 3000.

Certification Document means the standard BlueScope document for the certification of Designs from time to time, as set out at https://enduroframe.com/endurocadd_software/certification_sheets.

Change of Control means in respect of a corporation:

(a)         a relevant interest, as defined in the Corporations Act, in more than 50% of the securities of the corporation that in normal circumstances entitle the holder to vote or participate at a meeting of the members of the corporation or to vote or participate in the election or appointment of directors of the corporation passes to a person or persons who did not have such relevant interest at the Commencement Date; or
(b)         the ability to control or the actual control (irrespective of whether such control is exercisable on a passive or active basis and irrespective of whether such control is based on statutory, legal or equitable rights and irrespective of whether such control is exercisable solely or jointly or directly or indirectly) of the management and policies of the corporation passes (whether by means of trusts, agreements, arrangements, understandings, practices, the ownership of securities or shares in the corporation or otherwise) to a person or persons who did not have such ability or actual control at the Commencement Date.
Commencement Date means the date that General Software Terms Acceptance occurs or such other commencement date agreed between the parties.

Confidential Information means any information provided by a party to the other party (whether provided before or after the Commencement Date) in connection with the Software Product, Software Services or the Agreement (including the terms of the Agreement). For the avoidance of doubt, Confidential Information of BlueScope includes the Associated Documentation or any other information regarding the Software Product. However Confidential Information but does not include information which is in or becomes part of the public domain, other than through a breach of the Agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in the Agreement.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means, for Rollformer Transactions, the Customer specified in the Rollformer Agreement and in all other cases, the Customer specified in the Software Order Form.

Customer Data means all information, images, documents, files and other data uploaded to the Software Product or made available using the Software Product by or on behalf of the Customer or its Registered Users.  

Designs means steel frames and trusses designed by the Customer using a Software Product and/or contained in the Associated Documentation.

Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage or impairment and further includes an epidemics, pandemics or other public health emergencies and any cyber attacks or other similar incidents impacting a party.

Further Term means a period of 12 months commencing from either (as applicable):

(a)         the end of the Initial Term or
(b)         the end of the immediately preceding Further Term.
Hosted Product means a Software Product made available by BlueScope to the Customer on a software as a service (SaaS) or other similar hosted basis.

Initial Term means, for Rollformer Transactions, as set out in the Rollformer Agreement and in all other cases, as set out in the Software Order Form.  

Insolvent means being an insolvent under administration or insolvent (each as defined in the Corporations Act) or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or a similar effect happen under the laws of any jurisdiction.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of patents, copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Licensed Product means a Software Product that BlueScope licences the Customer to use on Permitted Devices and on the other licence terms set out in the Product Terms.

Fees means the fees payable to BlueScope by the Customer for Bluescope providing the Customer with (as applicable) access to, use of, a licence of or services in respect of the Software Products or any related Software Services, as such Fees are set out in the relevant Software Order Form, Product Terms or otherwise agreed between BlueScope and the Customer, including in the  Rollformer Agreement.

Software Products means the software and associated services to be provided by BlueScope, as set out in the relevant Product Terms, Software Order Form or,Rollformer Agreement (as applicable), or as otherwise advised by BlueScope.

Software Order Form means any relevant Bluescope order form or other form (including any online form) required to be completed in order to use the relevant Software Product.

Software Services means the support or other services for a Software Product to be supplied by BlueScope to the Customer (if any), as set out in the relevant Product Terms.

Media means the tangible property on or in which the Software Product and the Associated Documentation is delivered to the Customer (where applicable).

Modern Slavery means any activity, practice or conduct that would constitute an offence in relation to slavery, forced labour, involuntary servitude, debt bondage, human trafficking, and other slavery-like exploitation as prohibited under the Modern Slavery Act 2018 (Cth), the Criminal Code Act 1995 (Cth), sch 1, divisions 270 and 271 and Modern Slavery Act 2018 (NSW). For the avoidance of doubt, Modern Slavery includes any conditions or practices similar to those prohibited under those laws, statutes, regulations and codes.

Permitted Devices means the devices on which a Licensed Product may be installed or used by the Customer, as specified in the relevant Product Terms.

Product Terms means the terms and conditions specific to a particular Software Product as set out at https://enduroframe.com/productterms.

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).

Related Entity has the meaning given in the Corporations Act 2001 (Cth).

Representative means, in respect of a party to the Agreement, any person acting for or on behalf of that party and includes any director, officer, employee, contractor or professional adviser of that party but excludes the other party to the Agreement.

Rollformer Agreement means any ‘ENDUROFRAME® Building System Rollformer Agreement’ or other similar agreement between BlueScope and the relevant Customer regarding the Customer’s purchase of a rollforming machine.

Rollformer Transactions means where the Software Product is acquired by the Customer as part of a transaction where the Customer also enters into a Rollformer Agreement.

Sanctions Laws means all applicable financial, economic and trade sanctions (whether primary or secondary), and export controls laws and regulations (or any similar restrictions) imposed by the United Nations or the governments of Australia, the United Kingdom, European Union, the United States of America and any other country with jurisdiction over any transaction or activity contemplated by the Agreement. 

Sanctioned Party means any individual or entity with whom dealings are restricted or prohibited under any Sanctions Laws.

Term means the term of the Agreement, as described in clause 3.

Third Party Application means any product, service, system, application or internet site integrated or interfaced with the Software Product that is owned or operated by a Third Party Provider, and that is used by the Customer or any Registered User in connection with the Software Product.

Third Party Provider means any third party that provides support, technology and/or other products or services that are used by the Customer or any Registered User in connection with the Software Product.

Trained Software User means a Registered User who holds a current Trained Software User Certificate.

Trained Software User Certificate means a current certificate issued by BlueScope verifying that the Registered User has demonstrated certain competencies to design and detail buildings that are within the scope of the competencies that are indicated in the current certificate issued by BlueScope.

Unacceptable Content means any content which, in BlueScope’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the Intellectual Property Rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct.

1.2         Interpretation

In the Agreement, except to the extent that the context otherwise requires:

(a)        the singular includes the plural and vice versa;
(b)        a reference to the Agreement, a contract, an agreement or other instrument, includes any variation or replacement of any of them;
(c)        a reference to a person includes a reference to a natural person, a partnership, a firm, a body corporate, a joint venture, an unincorporated association or an authority as well as a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
(d)        an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;
(e)        a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re-enactments, or replacements of any of them;
(f)         headings are inserted for convenience and do not affect interpretation;
(g)        if a period of time is specified and the period dates from the given day or the day of an act or event, it is to be calculated exclusive of that day;
(h)        if an act under the Agreement to be done by a party on or by a given day is done after 5.30pm (Melbourne time) on that day, it is taken to be done on the next day;
(i)          a reference to a month is a reference to a calendar month;
(j)          a reference to a quarter, is a reference to each period of three months which commences on, 1 January, 1 April, 1 July or 1 October;
(k)        where a word or phrase is specifically defined other parts of speech or grammatical forms of that word or phrase have a corresponding meaning;
(l)          a reference to a thing (including any amount) is a reference to the whole and each part of it;
(m)       Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia; and
(n)        the words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

2             Product Terms and Agreement

2.1         The Product Terms detail the Software Products that BlueScope will provide to the Customer and any specific terms and conditions that apply to the provision of the relevant Software Product (in addition to these General Software Terms).
2.2         If there is any inconsistency between these General Software Terms and the Product Terms, the Product Terms will take priority to the extent of that inconsistency.
2.3         Where BlueScope makes a change to Hosted Product, BlueScope may update or change the Product Terms or these General Software Terms from time to time to reflect such change to the Hosted Product, provided that where any such changes or updates will have a material impact on the rights of the Customer under the Agreement:
(a)        BlueScope will provide no less than 45 days written notice to the Customer of the relevant change; and
(b)        the Customer may, at any time before the expiry of the above notice period, terminate the relevant Agreement by providing written notice of termination to BlueScope.

3             Term

3.1         This Agreement commences on the Commencement Date and continues for the Initial Term (unless terminated earlier in accordance with this Agreement or at law) (the Term).
3.2         At the expiry of the Initial Term or any Further Term, this Agreement will, subject to BlueScope’s compliance with clause 3.3, automatically renew for a Further Term, unless a party provides written notice to the other party at any time prior to the expiration of the Initial Term or the then current Further Term (as the case may be) that the Agreement will not be renewed and will instead expire at the end of the Initial Term or that Further Term (as applicable).
3.3         BlueScope must, not less than 30 days prior to end of any Initial Term or Further Term (as the case may be) provide the Customer with written notice advising the Customer that the Initial Term or Further Term (as applicable) is about to expire and that if the Customer does not provide written notice to BlueScope before the end of the Initial Term or Further Term (as applicable) electing not to renew the Agreement, then the Agreement will be automatically renewed for the relevant Further Term.

4             Delivery

4.1         BlueScope will deliver or supply the Software Product to the Customer as set out in the relevant Product Terms or, if not set out in the Product Terms, as determined by BlueScope, acting reasonably.
4.2         If BlueScope agrees under the Product Terms or by other agreement with the Customer to install the Software Product for the Customer, the Customer will give BlueScope such reasonable assistance, including the provision of resources and equipment as BlueScope considers necessary to complete the installation.  The Customer shall ensure BlueScope is granted all reasonable access to perform the installation.

5             Licence and rights to use

5.1       The Product Terms will set out the details of any licence to use the Software Product or other rights to access or use the Software Product that will be granted to the Customer by BlueScope. The Customer’s licence or other rights set out in the Product Terms are the only rights that the Customer will have in respect of the Software Product. The Customer must only use the Software Product for the purpose set out in the Product Terms and as otherwise permitted by the Product Terms.
5.2         The licence or other rights granted to the Customer and referred to in clause 5.1 of these General Software Terms are personal to the Customer and cannot be transferred or sublicensed to a third party.  If the Customer wishes to sell or otherwise provide to a third party any equipment owned by the Customer and upon which a Software Product is installed or accessible, unless otherwise agreed by BlueScope in writing prior to the sale or transfer, it must first remove all copies of the Software Product (or the ability to access the Software Product) from that equipment.
5.3         The Customer must only use the Software in accordance with the Associated Documentation and any other reasonable operating procedures notified to the Customer by BlueScope in writing from time to time.
5.4         The Customer will be required to comply with the Associated Documentation and any other reasonable operating procedures as follows:
(a)        on and from the Commencement Date for Associated Documentation or operating procedures which the Customer is provided with access to prior to the Commencement Date;
(b)        for Associated Documentation or operating procedures which the Customer is only provided with access to after the Commencement Date, the Customer will be required to comply with them once a period of 45 days’ has passed from the Customer first being provided with access to the Associated Documentation or operating procedure; and
(c)        for any amendment to any Associated Documentation or operating procedure after the Commencement Date:
(i)          if the amendment adversely impacts the Customer, the Customer will be required to comply with such amended Associated Documentation or operating procedure once a period of 45 days’ has passed from the Customer first being provided with access to it; or
(ii)         if the amendment does not adversely impact the Customer, the Customer will be required to comply with such amended Associated Documentation or operating procedure on the date the Customer is provided with access to it.
(d)        For the avoidance of doubt the Customer will be deemed to have been provided with access to Associated Documentation or an operating procedure (or an amendment to them) if the relevant Associated Documentation or operating procedure is accessible from https://enduroframe.atlassian.net/wiki/home.

6             Variations to Software Products

The Customer acknowledges and agrees that BlueScope may vary the features, functions and other benefits available to the Customer and its Registered Users in respect of the Software Products from time to time provided that BlueScope will seek to provide reasonable prior notice to the Customer before doing so. The Customer acknowledges that BlueScope retains the sole discretion regarding the features, functions and other benefits of the Software Products and nothing in the Agreement requires BlueScope to provide or maintain access to any features, functions or other benefits in respect of the Software Products. The Customer also acknowledges and agrees that nothing in the Agreement limits BlueScope’s right to suspend, discontinue, alter or limit access to any such features, functions or other benefits from time to time.

7             Software Services

BlueScope will provide the support services for the Software Product set out in the Product Terms or any other Software Services for the relevant Software Product set out in the Product Terms. The Customer acknowledges that the Software Services (if any) set out in the relevant Product Terms are the only support or other similar services BlueScope will be required to provide for the Software Product.

8             Trained Software User service

BlueScope may, on request by the Customer and subject to the Customer paying any applicable fees to BlueScope for BlueScope doing so, certify Designs for the Customer, with BlueScope acting as a Trained Software User in doing so. Where BlueScope provides such service, the Customer agrees that the service will be provided on the terms set out in the Certification Document and such other terms as BlueScope notifies in the Customer of prior to the provision of the service.

9             Third Party Applications

The Customer acknowledges that the Software Product may interact with Third Party Applications or require Third Party Applications be used to provide particular features or functionality. The Customer acknowledges that access to such Third Party Applications or services and any support for such Third Party Applications:

(a)            may be subject to terms and conditions of the relevant Third Party Provider, as set out in the Product Terms or as BlueScope notifies the Customer of from time to time; or

(b)            may require the Customer to contract directly with the relevant Third Party Provider in relation to use of the Third Party Application.

BlueScope does not make any representations or warranties regarding any Third Party Applications and will not be responsible for any issues in respect of Third Party Applications or any loss suffered by the Customer in connection with any Third Party Applications.

10          Obligations and responsibilities

10.1      The Customer will be responsible for:
(a)            the day to day use of the Software Product;

(b)            uploading all relevant Customer Data into the Software Product;

(c)            obtaining all consents, authorisations, permits or approvals necessary to access and use the Software Product as contemplated by the Agreement (including for the collection, use and disclosure of the Customer Data);

(d)            ensuring all Customer Data is complete, current, accurate and not misleading and does not infringe the Intellectual Property Rights of any third party;

(e)            ensuring that the use of the Software Product by the Customer and each of its Registered Users and the uploading and storage of the Customer Data complies with all applicable laws, regulations or codes of conduct (including the Privacy Act 1988 (Cth) and any other applicable privacy laws);

(f)             satisfying itself that the Software Product is compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, third party applications and other technology necessary to be able to access and use the Software Product;

(g)            maintaining internet connections or other network connectivity required to be able to access and use the relevant Software Product;

(h)            ensuring that it maintains back up or alternate systems for use if the Software Product is unavailable or is otherwise unable to be used by the Customer;

(i)              ensuring no Unacceptable Content is uploaded to or used in the Software Product; and

(j)              ensuring that all Registered Users are properly trained regarding the use of the Software Product and comply with any specific training requirements regarding the use of the Software Product as set out in the Product Terms.

10.2      Each party will comply with all applicable laws, regulations, codes or standards to which it is bound in performing its obligations and exercising its rights under the Agreement.

11          Audit and monitoring

During the Term and for a period of 12 months after the expiry or termination of the Agreement, the Customer must, on receiving reasonable prior written notice, provide BlueScope (and any person authorised by BlueScope) with access to the Customer’s premises, systems and all relevant records to enable BlueScope to audit the Customer’s compliance with its obligations under the Agreement.  The Customer acknowledges that the Software Product may include functionality or tools that enable BlueScope to monitor the use of the Software Product by the Customer, including to assess whether the Customer is using the Software Product in accordance with the Agreement.

12          Fees

12.1      The Customer agrees to pay to BlueScope the Fees.

12.2      All Fees or other amounts payable by the Customer to BlueScope must be paid within the payment terms set out in the Rollformer Agreement or Software Order Form (as applicable) or where no payment terms are specified, within 14 days of the date of the relevant amounts being invoiced to the Customer by BlueScope.

12.3      If the Customer fails to pay any amounts due to BlueScope under the Agreement then, without prejudice to BlueScope’s other rights regarding the non payment, BlueScope may issue a notice to the Customer stating that the relevant amount is overdue (Overdue Notice). If BlueScope does not receive payment of the relevant Fees within 14 days of the date of the Overdue Notice, BlueScope may disable the Customer’s and any Registered User’s access to the Software Product and/or the provision of the Software Services until such time as the outstanding amount is paid in full. BlueScope will not be liable for any loss suffered by the Customer as a result of BlueScope exercising its rights under this clause. 

12.4      BlueScope may set off any amount owed by the Customer to BlueScope against any amount of money that is owed, or may become owing, by BlueScope to the Customer under the Agreement or any other agreement between the Customer and BlueScope. The Customer waives any right to set off any amount that is, or may become, owing by the Customer to BlueScope against any amount owing by BlueScope to the Customer. This clause overrides any other document or agreement to the contrary.

12.5      Following the expiry of the Initial Term, BlueScope may, by providing no less than 45 days written notice to the Customer, increase the amount of the Fees payable in respect of a relevant Software Product. If the Customer does not agree to any such Fee increase, it can exercise its termination right under clause 32.3.

13          GST and other taxes

13.1      The Customer is liable for any taxes including, without limitation, federal, state, local or foreign taxes, duties, levies and other government fees and charges of any nature that are applicable in any country (Taxes).  Subject to clauses 13.2 to 13.6, and unless otherwise indicated, the Fees do not include the Taxes.  Any Taxes required to be paid by BlueScope as a result of the Software Products being supplied under the Agreement (other than Taxes based on BlueScope’s income) shall be billed to and paid by the Customer at the same time and in the same manner as the Fees are payable.

13.2      In clauses 13.3 to 13.6, words and expressions defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them in that Act.

13.3      Where one party (“supplying party”) makes a Taxable Supply to another party (“receiving party”) and the consideration for that supply is not expressed to be inclusive of GST, the receiving party must pay an additional amount when it pays or provides that GST exclusive consideration, equal to the amount of the GST on the Taxable Supply (without deduction or set-off).

13.4      The receiving party is not required to pay any amount of GST to the supplying party unless the supplying party has issued a Tax Invoice to the receiving party.

13.5      If the amount of GST recovered by the supplying party from the receiving party differs from the amount of GST payable at law by the supplying party (or an entity grouped with the supplying party for GST purposes) in respect of the supply, the supplying party must pay or refund the amount of the difference to the receiving party accordingly.

13.6      If one party (“payer”) is required to indemnify or reimburse another party (“payee”) for any cost, loss or expense incurred by the payee, the required payment does not include any part of such cost, loss or expense that the payee (or an entity grouped with the payee for GST purposes) is entitled to claim as an Input Tax Credit, but will be increased under clause 13.1 if the payment is consideration for a Taxable Supply.

14          Registration of Software Users

14.1      The Customer must register with BlueScope all of the Customer’s personnel who may use the Software Product (Registered Users). The Customer may change the identity of the Registered Users from time to time, provided that it must notify BlueScope of any relevant changes and the number of Registered Users must not exceed the number permitted under the Product Terms.

14.2      The Customer will provide BlueScope with all information reasonably requested by BlueScope from time to time regarding the Registered Users including information regarding the name and contact details of the Registered User and details regarding the training, qualifications and use of the Software Product by the Registered User. The Customer acknowledges that BlueScope will be entitled to collect and retain such information regarding Registered Users.

14.3      The Customer acknowledges that BlueScope may communicate directly with Registered Users (including by email) regarding Software Product related information (including information regarding updates and changes to the Software Product or training for the Software Product) or as part of responding to support requests. The Customer will be responsible for obtaining all consents from the Registered Users necessary for BlueScope to be able to communicate with the Registered Users and collect and retain information about Registered Users as contemplated above.   

14.4      Only Registered Users shall be permitted to use the Software Product at any time.

14.5      Registered Users shall be required to undergo training as set out in the Product Terms or as reasonably directed by BlueScope from time to time.

15          Reservation of rights

15.1      The Customer acknowledges that:

(a)         it has no rights or interests in the Software Product or the Associated Documentation or in any modifications to, or enhancements, updates or new releases of, the Software Product or the Associated Documentation, other than those expressly granted to it by the Agreement; and

(b)         without limitation, the Customer must not sub-licence the Software Product, and must not resell or otherwise distribute the Software Product or the Associated Documentation.

16          Acknowledgements and restrictions

16.1      Except to the extent expressly permitted by BlueScope’s written consent, the Customer must not, and must not permit others to, copy, reproduce, adapt, merge with other software, modify, decompile, reverse engineer, disassemble or translate all or any part of the Software Product or the Associated Documentation.

16.2      At BlueScope’s request, the Customer must inform its employees using the Software Product and the Associated Documentation under the Agreement, of the restrictions contained in the Agreement.

17          Risk to Media

Risk of loss of, or damage to, the Media passes to the Customer on its delivery to the Customer or to the Customer’s nominee.

18          Customer Data and use of Software Product

18.1      The Customer acknowledges and agrees that:

(a)            BlueScope does not control, is not responsible for and provides no warranty as to the content, availability, accuracy, currency or completeness of the Customer Data or any information or documentation that uses or is derived from the Customer Data

(b)            BlueScope does not control and is not responsible for how the Customer uses the Software Product or for any conclusions or decisions reached by the Customer as a result of the use of the Software Product or other outcomes of the use of the Software Product by the Customer;

(c)            the Customer must not make any claim against BlueScope in respect of the Customer Data or otherwise seek to hold BlueScope responsible for the provision, content, accuracy or reliability of the Customer Data or for the conclusions or decisions reached by the Customer as a result of the use of the Software Product; and

(d)            BlueScope is under no obligation to provide back up, archiving, record keeping or other similar services in respect of the Customer Data and the Customer is responsible for implementing and maintaining its own back up, archiving, record keeping and data retrieval procedures in respect of the Customer Data.

19          Privacy and data security

BlueScope will comply with its obligations under the Privacy Act 1988 (Cth) in relation to its provision of any Hosted Services. Without limiting the above, BlueScope will take reasonable steps to ensure the security and safety of the Customer Data held by BlueScope, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies. Provided BlueScope complies with its obligations under this clause 19, to the extent permitted by law, BlueScope will not be liable for any data loss or data security issues in respect of a Software Product.

20          Aggregated Data

The Customer acknowledges and agrees that BlueScope may (without being required to obtain any further consent from the Customer or the Registered Users):

(a)     compile Aggregated Data, including Aggregated Data based on Customer Data or Aggregated Data based on other information available via the Software Product; and

(b)     use, reproduce and communicate Aggregated Data, including for the purposes of evaluating, developing and improving the Software Product, promoting the Software Product or otherwise undertaking projects or activities related to the Software Product or the other business activities of BlueScope.

21          Warranties

21.1      To the extent permitted by law and subject to clause 21.2 of these General Software Terms, BlueScope warrants for the sole benefit of the Customer that:

(a)      the Software Product, when properly installed (if applicable) and used in accordance with the Associated Documentation, will substantially conform to the Associated Documentation as it exists as at the commencement date of the Agreement; and

(b)     any installation of the Software Product by BlueScope will be free from defects in workmanship.

21.2      BlueScope is not liable under clause 21.1 of these General Software Terms to the extent that any defect is caused, or contributed to, by:

(a)         the Customer’s improper installation of the Software Product, or use of the Software Product contrary to the Associated Documentation, other directions of BlueScope, or this document or any other improper acts or omissions of the Customer or another person, including any modification or attempted modification of the Software Product, or the Customer Site not authorised by BlueScope;

(b)         any combination of the Software Product with other software or equipment without first having obtained BlueScope’s consent to the combination;

(c)         any failure or malfunction of any equipment or software not provided by BlueScope;

(d)         any computer virus, worm or similar disabling code;

(e)         any power surge, whether or not due to the Customer; or

(f)          any Force Majeure Event.

21.3      To the extent permitted by applicable law, the Customer’s sole remedy for BlueScope’s breach of clause 21.2 of these General Software Terms is for BlueScope:

(a)        at BlueScope’s expense, to use its commercially reasonable efforts to correct, repair or replace (at BlueScope’s election), within a reasonable time, the defective Software Product; or

(b)        if, in BlueScope’s reasonable opinion, it is unable to provide the remedy in clause 21.3(a) of these General Software Terms, or it is unable to do so economically, to terminate the Agreement.

21.4      If, after investigation, BlueScope reasonably considers that it is not liable to the Customer under clause 21.1 of these General Software Terms, BlueScope may charge the Customer its reasonable substantiated expenses incurred in relation to that investigation.

21.5      Without limitation, BlueScope does not represent or warrant that use of the Software Product will be uninterrupted or virus free or error free or that the Software will provide any functions or satisfy any requirements not expressly stated in the Associated Documentation or Product Terms.

21.6      The Customer warrants that it shall conduct such tests and virus scanning as may be necessary, prior to use of the Software Product, to ensure the Software Product does not contain any virus and that the use of the Software Product will not in any way corrupt the Customer’s data or systems or those of any person.

21.7      BlueScope may from time to time provide general advice, assistance or recommendations to assist the Customer or its Registered Users to use a relevant Software Product (Software Assistance). The Customer acknowledges that any such Software Assistance is general in nature only, will not consider all of the circumstances or objectives of the Customer or a Registered User and should not be relied on by the Customer or a Registered User.

22          Liability

22.1      Legislation, including the Australian Consumer Law, may imply warranties, guarantees or conditions, or impose obligations or liability on BlueScope in respect of the Agreement that cannot be wholly or partly excluded, restricted or modified.  If so, BlueScope’s liability is limited, to the extent permitted by the applicable legislation, at its option, to:

(a)        in the case of goods:

(i)          the replacement or repair of the goods; or

(ii)         the supply of equivalent goods; or

(iii)        the payment of the cost of replacing the goods or having the goods repaired or of acquiring equivalent goods; and

(b)        in the case of services the supply of the services again or the payment of the cost of having the services supplied again.

22.2      Subject to clause 22.1 but notwithstanding any other provision of the Agreement, the maximum aggregate liability of BlueScope for any loss or claim, however caused or arising, suffered by the Customer in connection with the Agreement, the Software Product or the Software Services (including under an indemnity) is limited to the total amount of the Fees paid by the Customer to BlueScope under the Agreement and, where the Software Product or Software Services are acquired as part of a Rollformer Transaction, the Rollformer Agreement during the 12 month period prior to the Customer first notifying BlueScope of the relevant loss or claim. The limitation set out in this clause is an aggregate limit for all claims or loss, whenever made.

22.3      Any claim by the Customer against BlueScope for loss however caused or suffered by the Customer in connection with the Agreement must be made within one year of the Customer becoming entitled to make the claim and any claim not made within this period is absolutely barred. 

22.4      Neither party will be liable for any Consequential Loss (however caused) suffered or incurred by the other party in connection with the Agreement. This clause applies even if the party knew or ought to have known that the relevant Consequential Loss would be suffered. For the purposes of the Agreement, Consequential Loss means:

(a)        all indirect and consequential loss;

(b)        all loss beyond the normal measure of damages; and

(c)        all loss of revenue, loss of data, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, loss of use, cost of capital or costs of substitute goods, facilities or services.

For the avoidance of doubt, nothing in this clause applies to or limits the obligations of the Customer in relation to payment of Fees.

23          Indemnity

The Customer indemnifies and will keep indemnified BlueScope and each of its Representatives (for each of whom BlueScope holds the benefit of this indemnity upon trust) against any loss which any such person may incur or be subjected to in respect of or arising from:

(a)             any injury to, or death of a natural person and any loss of or damage to, real or personal property caused or contributed to by the negligent acts of the Customer or a Representative of the Customer;

(b)         the negligence, unlawful or wrongful act or omission, breach of statutory duty of the Customer or its Representatives;

(c)         any claim, action, demand or proceeding by a third party against BlueScope or its Representatives caused or contributed to by the negligent acts or omissions of the Customer or its Representatives;

(d)         the Customer Data infringing or being alleged to infringe the Intellectual Property Rights of any third party; or

(e)          any breach of the Agreement by the Customer.

24          Intellectual property Rights

24.1      The Customer acknowledges that nothing in these General Software Terms or the Agreement grants the Customer any ownership of the Intellectual Property Rights in the Software Product, any Intellectual Property Rights in any materials created as a result of the performance by BlueScope of its obligations under the Agreement or any improvements to the Software Product created in connection with the Agreement (whether created by BlueScope, the Customer or otherwise).

24.2      Any Intellectual Property Rights in respect of the Software Product or Associated Documentation (including in any improvements) or other Intellectual Property Rights described in clause 24.1 which is created by or vests in the Customer during the Term is assigned to BlueScope immediately upon the Intellectual Property Rights being created or vesting in the Customer and the Customer agrees to do all things and execute all documents as is reasonably necessary to give effect to such assignment.

24.3      BlueScope acknowledges that, as between BlueScope and the Customer, the Customer will own all Intellectual Property Rights in the Customer Data. The Customer grants BlueScope a non-exclusive, irrevocable, royalty free licence to reproduce and otherwise exploit the Customer Data and any other relevant Intellectual Property Rights which is owned by, or licenced to, the Customer for the purposes of BlueScope:

(a)        providing the Customer with access to or use of the Software Product pursuant to the Agreement, providing any Software Services to the Customer or any purposes which are ancillary to BlueScope doing so or are otherwise necessary for the proper operation of the Software Product or the provision of the Software Services;

(b)        undertaking data analytics or other similar activities in respect of de-identified versions of the Customer Data or using Aggregated Data as contemplated in the Agreement; and

(c)        any purposes relating to the development or improvement of the Software Product or the other products and services of BlueScope.

24.4      Any use of the registered or unregistered trade marks of BlueScope by the Customer requires the prior written consent of BlueScope.

25          Intellectual Property Infringement

25.1      Subject to clauses 25.3 and 25.4 , BlueScope shall indemnify the Customer against liability under any final judgement in proceeding brought by a third party against the Customer in Australia determining that the Customer’s use of the Software Product constitutes an infringement of an Australian copyright.

25.2      The indemnity in clause 25.1 is the Customer’s sole and exclusive remedy in relation to such a third party claim.

25.3      BlueScope will not indemnify the Customer as provided in clause 25.1 unless the Customer;

(a)        notifies BlueScope in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
(b)        gives BlueScope the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;

(c)        provides BlueScope with all reasonable assistance in conducting the defence of such a claim (including without limitation the provision of documents);

(d)        permits BlueScope to modify, alter or substitute the Software Product, at BlueScope’s expense, to render the Software non-infringing; and

(e)        authorises BlueScope to procure for the Customer the authority to continue the use and possession of the Software Product.
25.4      BlueScope shall not indemnify the Customer if such infringement, suspected infringement or alleged infringement arises from:

(a)        use of the Software Product other than in accordance with the Agreement;

(b)        use of the Software Product with goods or services or software not supplied or specifically approved by BlueScope;

(c)        modification or alteration of the Software Product without BlueScope’s prior written consent;

(d)        any transaction entered into by the Customer relating to the Software Product without BlueScope’s prior written consent;

(e)        any other acts or omissions of the Customer, its Representatives, Registered Users or third party suppliers not approved in writing by BlueScope;

or

(f)         continuing use of the Software Product by the Customer instead of a non-infringing item which has been offered or supplied by BlueScope.

25.5      The Customer shall indemnify BlueScope against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:

(a)        the claim arises from an event specified in clauses 25.4(a) to 25.4(d) 25.4(f);

(b)         the ability of BlueScope to defend the claim has been prejudiced by the failure of the Customer to comply with the provisions in clause 25.3; or

(c)         information provided to BlueScope by the Customer to enable BlueScope to develop or customise the Software Product encroaches upon any Intellectual Property Rights of a third party.

25.6      The Customer indemnifies and will keep BlueScope indemnified against any loss BlueScope or its Representatives suffer as a result of or in connection with:

(a)        the Customer or the Customer Data infringing or being alleged to infringe the Intellectual Property Rights of a third party; or

(b)        a third party making any claim against BlueScope in respect of the Customer Data or the use of the Software Product by the Customer or its Registered Users,
except to the extent the relevant loss arises from acts or omissions of BlueScope that are unlawful or amount to negligence or a breach of the Agreement by BlueScope.

26          Confidentiality

26.1      A party (“Recipient”) who receives Confidential Information from the other party (“Discloser”) must not:

(a)        use that Confidential Information for any purpose other than performing its obligations under the Agreement;

(b)        disclose to any person that Confidential Information except as permitted by the Agreement; or

(c)        make or assist any person to make any use of Confidential Information other than in accordance with the Agreement.

26.2      Either party may disclose Confidential Information:

(a)        to a Representative of the Recipient who needs to know that information for the purposes of the Agreement or to provide legal or financial advice, provided that such disclosure is under conditions of confidentiality consistent with this clause; or

(b)        if the Discloser has given its written consent to the disclosure.

26.3      Notwithstanding anything contained in the Agreement, BlueScope may disclose Confidential Information of the Customer:

(a)        to a body having regulatory or supervisory authority over any part of BlueScope’s business or affairs; and

(b)        as required by law or by the listing rules of any stock exchange where BlueScope’s securities are listed or quoted.

26.4      The Recipient must immediately notify the Discloser of all information which comes to its attention regarding any actual or potential disclosure or use of Confidential Information of the Discloser other than in accordance with this clause.

26.5      On the earlier of:

(a)         a demand by the Discloser; or

(b)         the expiry or termination of the Agreement,

the Recipient must deliver to the Discloser (or with the Discloser’s prior consent, destroy or erase) any Confidential Information of the Discloser in the possession, power or control of the Recipient or any of its Representatives. Nothing in this clause 26.5 requires the return, destruction or deletion of: 

(c)        any documents or other materials which are required to be retained in order to comply with any applicable law or legally binding order of any governmental agency or the applicable rules of any securities exchange;  

(d)        any legal advice, directors’ papers or board or committee minutes of the Recipient or any of its Related Entities; or 

(e)        any Confidential Information that is retained in electronic server or back-up facilities not readily accessible to the Recipient or its Representatives. 

26.6      Each party will take all reasonable steps to ensure that its Representatives engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.

26.7      Nothing in this clause 26 applies to or restricts BlueScope’s use of Aggregated Data as contemplated in the Agreement.

27          Copying

27.1      Subject to clauses 27.2 and 27.4 of these General Software Terms, the Customer shall not copy or reproduce the Software Product or Associated Documentation by any means or in any form without BlueScope’s prior written consent. 

27.2      Where a Software Product is a Licensed Product, the Customer may make one and only one copy of the Software Product for the purpose of backup and security.  The Customer shall acknowledge such copy as the property of the BlueScope.  The terms of the Agreement, with the necessary modifications, apply to the said copy.  The Customer shall be permitted to make copies of the Associated Documentation for the purposes of using the Software Product pursuant to the terms of the Agreement. 

27.3      The Customer shall ensure the copy of the Software Product made under clause 27.2 bears notice of BlueScope’s ownership of copyright and a notice stipulating the Software Product contains information confidential to BlueScope.

27.4      Notwithstanding clause 27.1, the Customer or its Registered Users may copy and reproduce Associated Documentation to the extent doing so is reasonably necessary for the Customer or the Registered Users to be able to manufacture, install or distribute End Products as permitted under the Agreement and provided that the Customer must (and must ensure its Registered Users) comply with any directions or instructions of BlueScope regarding such copying or reproduction.

28          Modifications

28.1      The Customer shall not modify or alter the Software Product or merge all or any part of the Software Product with any other software without BlueScope’s prior written permission.

28.2      If the Software Product is modified or altered by BlueScope at the request of the Customer, or by the Customer with the permission of BlueScope pursuant to clause 28.1:

(a)        the costs associated with the modifications or alterations or the costs arising out of the investigation of the effects of such proposed modifications or alterations will be borne solely by the Customer; and

(b)        the Customer will fully indemnify BlueScope against all liability which may be incurred by BlueScope if such modifications or alterations infringe any Intellectual Property Rights of a third person or otherwise cause BlueScope to suffer loss, damages or expense.
28.3      The Software Product as modified or altered remains the property of BlueScope in all respects, whether modified by the Customer, BlueScope or a third party and whether or not such modifications are authorised pursuant to the Agreement.  Specifically the Customer vests in BlueScope all Intellectual Property Rights and industrial property rights arising out of any modifications to the Software Product. 

28.4      The Agreement shall apply to the Software Product as modified or altered.

29          New releases and updates

29.1      For Licensed Products, the Customer must install new versions of the Software Product supplied by BlueScope or updates to the Software Product nominated by BlueScope as being compulsory (“compulsory release”). A compulsory release will not materially reduce the overall features, functionality or performance of the relevant Software Product.

29.2      Where such compulsory release is made:

(a)            BlueScope will deliver the new versions of the Software Product or update at no additional charge to the Customer;

(b)            the Agreement will continue to apply in all respects to the new release or update which will be deemed to the Software Product for the purpose of the Agreement; and

(c)            the Customer will deal with all copies of the original software and associated documentation in accordance with BlueScope’s directions.

For Hosted Products, the Customer acknowledges that BlueScope may (at its election and discretion) deploy the new version of the Software Product as part of the Hosted Product and the Customer may be required to use such new version.  Notwithstanding the above, the Customer acknowledges that nothing in the Agreement imposes obligations on BlueScope to develop, release or install for the Customer any particular updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Software Products and the development and release of updates or new versions will at all times be at the discretion of BlueScope. Updates to Hosted Products by BlueScope will not materially reduce the overall features, functionality or performance of the relevant Software Product.

30          Security

30.1      The Customer will be solely responsible for the use, supervision, management and control of the Software Product and Associated Documentation.

30.2      The Customer shall ensure that the Software Product is protected at all times from access, use or misuse, damage or destruction by any person not authorised by BlueScope for that purpose.

30.3      The Customer shall keep records of copying and disclosure of the Software Product in a form approved by BlueScope.  The Customer shall permit BlueScope to inspect such records at any time during the Customer’s normal business hours.  If BlueScope requests, the Customer shall furnish to BlueScope a copy of all or any part of such records. 

31          Suspension

BlueScope reserves the right to at any time to suspend the Customer’s access to Software Product where the Customer has breached any term of the Agreement or BlueScope (acting reasonably) considers that the use of the Software Product by the Customer poses a material risk to BlueScope or others. BlueScope will use reasonable efforts to provide prior notice to the Customer before undertaking such suspension.

32          Termination

32.1      Bluescope may, by written notice to the Customer, terminate the Agreement with immediate effect if the Customer: 

(a)            fails to comply with any written notice issued by BlueScope requiring the Customer to remedy a breach, non-observance or non-performance of the Customer’s obligations under the Agreement or any other agreement between the Customer and BlueScope which is capable of remedy and, within 7 days of receiving that notice from BlueScope, has not remedied the breach, non-observance or non-performance;

(b)            materially breaches any provision of the Agreement which is not capable of remedy or breaches any material provision of the Agreement which is not capable of remedy;

(c)            breaches provisions of the Agreement (whether material or not and whether capable of remedy or not) on more than 3 occasions;

(d)            fails to pay any outstanding amount of the Fees and does not remedy such non-payment with 7 days of receiving notice from BlueScope of the outstanding amount;

(e)            becomes Insolvent;

(f)             undergoes a Change of Control and BlueScope has not consented to such a Change of Control at least 30 days before the Change of Control becomes effective; or

(g)            uses the Software Product in any way which BlueScope considers may damage the reputation, brand or goodwill of BlueScope or the Software Product.

32.2      Without limiting the generality of any other clause or paragraph in the Agreement, BlueScope may also terminate the Agreement immediately by notice in writing to the Customer if:

(a)       the Customer disposes of the Software Product; or

(b)       the Customer is no longer able to utilise the Software Product or comply with its obligations under the Agreement.

32.3      Either party may terminate the Agreement in whole or in part without cause on 30 days’ notice to the other party.

32.4      If notice is given to the Customer pursuant to clauses 32.1 or 32.2 of these General Software Terms, BlueScope may, in addition to terminating the Agreement, repossess any copies of the Software Product in the possession, custody or control of the Customer and may disable any access of the Customer or any Registered Users to the Software Product.

32.5      Upon termination of the Agreement, the Customer shall immediately on request furnish BlueScope with written notification that the Software Product, the Associated Documentation and all copies of the Software Product and the Associated Documentation have been returned to BlueScope or otherwise disposed of at the discretion of BlueScope.

33          Force Majeure

33.1      If a party is prevented, hindered or delayed from performing its obligations under the Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly.

33.2      If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.

33.3      This clause 33 does not apply to any obligation of the Customer to pay the Fees or other amounts payable to BlueScope under the Agreement.

34          Anti-Bribery and Corruption, Modern Slavery and Trade Sanctions

34.1      Anti-Bribery and Corruption

34.1.1 Representations, warranties and undertakings
The Customer represents, warrants and undertakes, and continues to represent, warrant and undertake throughout the term of the Agreement, that:

(a)            the Customer and its directors, officers, employees, agents and representatives, and any of its Related Entities involved in the performance of this Agreement (Personnel) will comply with all laws relating to anti-bribery and corruption in the jurisdictions in which it operates (ABC Laws);

(b)            the Customer will take reasonable steps to ensure that all of its Personnel comply with all ABC Laws; and

(c)             the Customer will maintain in place throughout the term of the Agreement policies and procedures to promote compliance with ABC Laws (which policies and procedures shall be disclosed to BlueScope on request) and will enforce them where appropriate.

34.1.2 Termination

Breach of any part of Clause 34.1.1 is a material breach for the purposes of termination.

34.2      Modern Slavery

34.2.1 Representations, warranties, undertakings and acknowledgement
The Customer represents, warrants and undertakes, and continues to represent, warrant and undertake throughout the term of the Agreement:

(a)            that neither the Customer, nor any of its directors, officers, employees, agents or representatives, nor any of its Related Entities involved in the performance of the Agreement, engage in Modern Slavery;

(b)            that it will take reasonable steps to ensure that none of its contractors, subcontractors or suppliers directly or indirectly involved in the performance of the Agreement engage in Modern Slavery; and

(c)             to comply with all Modern Slavery reporting requirements applicable to it.

(d)            The Customer acknowledges that BlueScope has corporate reporting requirements with regard to Modern Slavery and, at the reasonable request of BlueScope, the Customer will confirm in writing that it has complied with its undertakings under this Clause 34.2.1 and will provide any information reasonably requested by BlueScope in support of such compliance.

34.2.2 Termination

(a)             Breach of any part of Clause 34.2.1 is a material breach for the purposes of termination.

(b)             Without limiting clause 34.2.2(a), if at any time throughout the term of the Agreement, any contractor, subcontractor or supplier of the Customer directly or indirectly involved in the performance of the Agreement engages in Modern Slavery, this will be deemed to be a material breach for the purposes of termination.

34.3      Trade Sanctions

34.3.1 Representations, warranties, undertakings and acknowledgment
The Customer represents and warrants, and continues to represent, warrant and undertake throughout the term of the Agreement, that:

(a)             it will comply with all Sanctions Laws applicable to it;

(b)             it will not, without BlueScope’s prior written consent, supply to BlueScope any goods (including any components or materials incorporated into the goods) or services sourced in whole or in part:

(i)              in contravention of Sanctions Laws; or

(ii)             from a Sanctioned Party;

(c)             it is not, and is in no way associated with, a Sanctioned Party.

34.3.2 Designation

(a)             In the event that the Customer or any of its Related Entities, shareholders or subsidiaries (or any of it or its shareholders’ or subsidiaries’ directors, officers, employees, agents or subsidiaries) is designated under Sanctions Laws and becomes a Sanctioned Party (or is owned or controlled by, or is acting on behalf of, a person or entity that is designated under Sanctions Laws and becomes a Sanctioned Party), then BlueScope may  terminate the Agreement with immediate effect by providing written notice of termination to the Customer.

(b)             Notwithstanding any other provision of the Agreement, as a consequence of termination under this Clause 34.3.2, BlueScope shall not:

(i)              be liable to deliver any further Software Products or provide any further license or perform any services in accordance with Clause 4 of the General Software Terms;

(ii)             be required to make any payments which would, or may, constitute a breach of the Sanctions Laws;

(iii)            be liable for any loss or damage or other costs or expenses of any kind whatsoever that the Customer may suffer as a result of such termination.

34.3.3  Notice

(a)             The Customer will immediately notify BlueScope in writing if:

(i)              it becomes aware or suspects that any of the representations, warranties and undertakings in Clause 34.3.1 are false; and/or

(ii)             it or any of its Personnel breaches or may have breached the representations, warranties and undertakings in Clause 34.3.1

(b)             Notification under this Clause 34.3.3 will be sufficient if and only if:

(i)              the notification sets out adequate particulars of the breach or suspected breach; and

(ii)             the notification sets out what steps the Customer is taking to investigate the breach or potential breach.

(c)             At BlueScope’s request, the Customer must provide details of the steps it is taking to investigate the breach or potential breach.

34.3.4 Right of termination and indemnity

(a)             If the Customer is in breach of any part of Clause 34.3.1 or BlueScope has reasonable grounds to believe such a breach, without prejudice to any other remedy which BlueScope may have, BlueScope may immediately terminate the Agreement for breach by providing written notice of termination to the Customer.

(b)             The Customer shall indemnify BlueScope for any cost, loss, expense, damage, claim or liability whatsoever (including legal and other professional expenses) arising from or related to breach by the Customer of any representation or warranty made under Clause 34.3.1.

(c)             Any right of termination under this Clause 34.3.4 is in addition to any other right of termination BlueScope may have under the Agreement or at law.

35          Disputes

If a dispute arises between BlueScope and the Customer in relation to the Agreement, BlueScope and the Customer will, following notice of the dispute being provided by either party, participate in good faith discussions with the bona fide objective of resolving the dispute by agreement during a period of 30 days from the date of such notice. Following the expiry of such period, if the dispute is not resolved, either party will be free to commence legal proceedings in respect of the dispute.

36          Miscellaneous

36.1      Assignment

(a)        Subject to clause 36.1(a), neither party may assign the benefit of, or otherwise create an interest in its rights under the Agreement, unless it obtains the prior written consent of the other party.

(b)        Nothing in the Agreement restricts BlueScope from assigning, declaring a trust over, transferring or otherwise dealing with any receivables owed to it by the Customer under the Agreement, and any or all rights and interests associated with such receivables (including related securities), in favour of any third party. With notice to the Customer, BlueScope may assign the Agreement to any of its Related Bodies Corporate or, in the case of a sale of business or assets, to any third party which acquires all or substantially all of the assets of BlueScope which are used in the performance of the obligations arising under the Agreement.

36.2      Subcontracting

The Customer agrees and acknowledges that BlueScope may subcontract the performance of any of its obligations or the exercise of any of its rights under the Agreement as BlueScope considers appropriate from time to time provided that BlueScope shall at all times remain responsible for complying with its obligations under the Agreement, notwithstanding any subcontracting.

36.3      Waiver and variation

A provision of or a right created under the Agreement may not be waived or varied except in writing, signed by the parties.

36.4      Indemnities

(a)        Each indemnity in the Agreement is a continuing obligation and is separate and independent from the other obligations on the Customer and survives termination of the Agreement.

(b)        It is not necessary for a party to incur expense or make a payment before enforcing a right of indemnity conferred by the Agreement.

36.5      Survival

The following clauses survive termination or expiry of the Agreement 11, 12, 13, 15, 20, 21, 22, 23, 24, 25, 26, 27, 28, 32, 35 and 36.  

36.6      Publicity

The Customer may not make any press or other announcement or release relating to the Agreement or the transactions the subject of the Agreement if that announcement or release relates or refers to BlueScope unless it has received BlueScope’s prior written consent.

36.7      Governing law and jurisdiction

(a)        The Agreement is governed by the law in force in Victoria.
(b)        Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and courts of appeal from them.  Each party waives any right it has to object to an action being brought in those courts including by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

36.8      Severability

If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.

36.9      BlueScope’s rights
Any express statement of a right of BlueScope under the Agreement is without prejudice to any other right of BlueScope expressly stated in the Agreement or arising at law.

36.10   Notices
Any notice, consent, approval, waiver or other communication in connection with the Agreement may be given by a party by electronic communication to an email address provided by the other party. Such messages will be deemed to be received one hour after the electronic communication is recorded as being sent by the device from which the sender sent that electronic communication, unless the sender knows or could reasonably be expected to know that an electronic communication system has failed and as a result, the electronic communication was not received. BlueScope may provide notices to the Customer by displaying the notice to the Customer on or via the Software Product or otherwise making the notice reasonably accessible to the Customer on or via the Software Product.

36.11   General

Subject to any provision to the contrary, the Agreement shall ensure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

 

1. Background

BlueScope and the Customer are parties to the Software Terms which set out the general terms and conditions that apply to software products BlueScope makes available.
This document is the Product Terms for the ENDUROCADD software product provided by BlueScope (ENDUROCADD). This document forms part of and is incorporated into the Software Terms. By accessing or using ENDUROCADD, the Customer accepts and will be bound by these Product Terms. If you are accessing or using ENDUROCADD as an agent, officer, employee or other representative of the Customer, you warrant to BlueScope that you have full legal authority to bind the Customer to these Product Terms.

2. Product Terms

2.1 Definitions

Unless specified otherwise, capitalised terms used in these Product Terms have the meaning given in the General Software Terms. In these Product Terms:

Dealer means a Customer who provides or causes to be provided, whether by itself or through a third party, steel frames and trusses from ENDUROFRAME® components to an End User.

Designs means steel frames and trusses designed by the Customer using ENDUROCADD and/or contained in the Associated Documentation.

Associated Documentation means the then current versions of the following documentation:

End Product means any steel product Designed by the Customer or its Registered Users using ENDUROCADD and/or the Associated Documentation, which is manufactured and fabricated but may or may not be assembled.

End User means a person who assembles steel frames and trusses from ENDUROFRAME® componentsand/or installs an End Product.

Fabricator means a Customer who assembles steel frames and trusses from ENDUROFRAME® components.

Licence Term means the period for which the Customer is licensed by BlueScope to use ENDUROCADD.

Steel means BlueScope’s steel product for house framing currently known as TRUECORE® steel.

Professional Engineer has the meaning given in the NCC 2019 Building Code of Australia-Volume Two.  

2.2 ENDUROCADD software product

The ENDUROCADD software is a Licenced Product. The ENDUROCADD software is a CAD program for the design and detailing of residential and light commercial buildings using light gauge steel components manufactured from TRUECORE® steel, and related accessories.

2.3 Associated Documentation

The Associated Documentation for ENDUROCADD will be made available by BlueScope at the www.enduroframe.com.au website. The Associated Documentation may be updated by BlueScope from time to time. The latest versions of the Associated Documentation, including any additions or deletions can be found at the links above or by contacting BlueScope. Access to many of the documents on the websites will require a username and password. BlueScope will provide username(s) and password(s) to access the Associated Documentation to Registered Users. Registered Users may change the password. Registered Users shall not share these username(s) and passwords. Additional terms and conditions may also apply in order for the Customer or the Registered Users to access or use ENDUROCADEMY online training portal content or documentation.

2.4 Permitted Number

Unless agreed otherwise by BlueScope, the Permitted Number of copies of ENDUROCADD that can be loaded onto Customer Devices or accessed and used on Customer Devices by Registered Users will be the number set out in the Rollformer Agreement or the Software Order Form. The Customer can change the identity of its Registered Users as set out in the General Software Terms. Each Customer Device must be assigned to one Registered User.

2.5 Licence Term

For the purpose of these Product Terms, the Licence Term commences on the date specified in the relevant Software Order Form or Rollformer Agreement and continues for the Term (so long as the Customer pays the relevant Fees to Bluescope for ENDUROCADD and otherwise complies with the General Software Terms (and the Rollformer Agreement where applicable) and these Product Terms).The Customer can place an order for a licence of ENDUROCADD under these Product Terms where the Customer does not have a current Rollformer Agreement in place. If such order is placed by the Customer and accepted by BlueScope then, notwithstanding the provisions in the General Software Terms, the Licence Term under that order will only continue for a period of 12 months from the relevant commencement date specified in the order and any licence of ENDUROCADD beyond such period will require the Customer to place and BlueScope to accept an order for a licence for the relevant further period.

2.6 Licence rights

For the purposes of the General Software Terms, ENDUROCADD is a Licensed Product. During the Licence Term, BlueScope grants the Customer a non-exclusive, revocable, personal, non-sublicensable right to use ENDUROCADD by:

(a) loading the Permitted Number of copies of ENDUROCADD onto the hard drive of desktop or laptop computers owned and controlled by the Customer (Customer Devices);

(b) providing Registered Users access to the Associated Documentation with usernames that are tied to email addresses provided for each Registered User; and

(c) accessing and using ENDUROCADD (and permitting its Registered Users to access and use ENDUROCADD) only on those Customer Devices and provided further that all such access and use:

(i) must comply with the Permitted Number requirements in item 4 of these Product Terms; and
(ii) must be only for the internal business purposes of the Customer and only to manufacture End Products using or incorporating Steel.

2.7 Use Verification Tools

The Customer acknowledges that ENDUROCADD may contain or utilise user verification or auditing software components or tools (Use Verification Tools) and BlueScope may use the Use Verification Tools to monitor the use of ENDUROCADD by the Customer or its Registered Users and to disable or suspend the Customer or any Registered Users access to ENDUROCADD if:

(a) the Customer commits a material breach of these Product Terms or the General Software Terms in respect of ENDUROCADD;
(b) the Customer fails to pay the relevant Fees to BlueScope under the General Software Terms or any Rollformer Agreement and such failure to pay is not remedied by the Customer 30 days after BlueScope having notified the Customer of the failure to pay; or
(c) the Customer or any Registered User accesses or uses ENDUROCADD other than as permitted under these Product Terms.

2.8 Delivery of ENDUROCADD

Once the Customer has accepted the General Software Terms and these Product Terms and paid any applicable Fees to BlueScope, ENDUROCADD will be made available for online download by the Customer as an executable file. The Customer will be responsible for downloading ENDUROCADD using the download instructions provided by BlueScope and for undertaking all installation of ENDUROCADD on the Customer Devices.

2.9 Support services

Unless agreed otherwise between BlueScope and the Customer, the only support services BlueScope provides to the Customer for ENDUROCADD will be BlueScope using commercially reasonable efforts to respond to reasonable support requests submitted by the Customer via the online Support Portal and BlueScope making training and other materials regarding ENDUROCADD available for the Customer to access online through the ENDUROCADEMY Training Portal (with BlueScope determining the training and other materials that will be made available).

2.10 Intellicad

ENDUROCADD may contain software and other components made available by the IntelliCAD Technology Consortium. Any such IntelliCAD software or components are subject to the following terms and acknowledgements:
Copyrights, Trademarks, and Credits of IntelliCAD Technology Consortium
Copyright © 1997-2021 Microsoft Corporation, derivative portions; Copyright © 1999-2021 IntelliCAD Technology Consortium, 10260 SW Greenburg Road, Suite 400, Portland, Oregon 97223.
Unauthorized use or distribution prohibited. Access to and use of this code is permitted only under license from the IntelliCAD Technology Consortium. All rights reserved.
IntelliCAD and the IntelliCAD logo are either registered trademarks or trademarks of The IntelliCAD Technology Consortium in the United States and/or other countries.
All other trademarks, trade names or company names referenced herein are used for identification only and are the property of their respective owners.
This software may use any or all of the products listed below. The ITC acknowledges and credits the following companies, products, open source projects, etc. Corrections to this list may be addressed to [email protected]

3dconnexion
This software includes the 3Dconnexion Software Development Kit (SDK). See https://3dconnexion.com for details.

Autodesk
Autodesk® and AutoCAD® are registered trademarks of Autodesk, Inc. DWG is the native and proprietary file format for AutoCAD and a trademark of Autodesk, Inc.

Bentley
Bentley® is a registered trademark of Bentley Software Inc.

Boost
Boost version 1.67, a set of portable C++ source libraries.
https://www.boost.org/

Bugzilla
The ITC thanks the Bugzilla development team for their efforts.
https://www.bugzilla.org

CppUnit
The ITC thanks the CppUnit development team for their efforts.
https://freedesktop.org/wiki/Software/cppunit/

Doxygen
The ITC thanks the developers of Doxygen.
http://www.doxygen.nl/

FFmpeg Project
This software uses libraries from the FFmpeg open source library for converting and streaming audio and video. See https://ffmpeg.org/ for details. FFmpeg is used under the LGPLv2.1.

FreeImage Project
This software uses the FreeImage open source image library. See http://freeimage.sourceforge.net for details. FreeImage is used under the FIPL license version.

FreeType Project
Portions of this software are copyright © 2019 The FreeType Project (https://www.freetype.org/). All rights reserved.

GDAL
GDAL libraries, version 2.3
http://www.gdal.org
Copyright © 2000 Frank Warmerdam.

GeoTIFF
The GeoTIFF format was produced by Dr. Niles Ritter and is completely open, public domain, and non-proprietary. There is no restriction on licensing, implementation, promulgation, or any uses of the format. The format is entirely open and available to all. The specifications are public, there are abundant free software source libraries, toolkits, data samples, and technical support through the email forum.
http://geotiff.osgeo.org

Google
GoogleTest and GoogleMock Copyright © 2008, Google, Inc. All rights reserved.
https://github.com/google/googlemock

Hunspell
Hunspell spell checker library.
http://hunspell.github.io/
GNU LESSER GENERAL PUBLIC LICENSE
Version 2.1, February 1999
https://raw.githubusercontent.com/hunspell/hunspell/master/COPYING.LESSER

IfcPlusPlus
Copyright © 2010-2015 Fabian Gerold ([email protected]). Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
http://ifcquery.com/

Intel Threading Building Blocks (TBB)
Intel® Threading Building Blocks (TBB) is used under the Apache 2.0 License. See http://www.apache.org/licenses/LICENSE-2.0 for details.

Intergraph
Intergraph® is a registered trademark of Intergraph Corporation.

LibJPEG
Copyright © 1991-1998, Thomas G. Lane.
http://www.ijg.org

libpng
libpng versions 1.2.6, August 15, 2004 through 1.2.35, February 14, 2009 are Copyright © 2004, 2006-2008 Glenn Randers-Pehrson.
http://www.libpng.org

LibTIFF
The LibTIFF Software Library, Copyright © 1988-1997 Sam Leffler; Copyright © 1991-1997 Silicon Graphics Inc.
http://www.libtiff.org

LizardTech
LizardTech, MrSID, GeoExpress and Express Server are registered trademarks in the United States and the LizardTech, GeoExpress, Express Server, ExpressView and GeoViewer logos are trademarks, and all are the property of Celartem Inc., doing business as LizardTech.
https://www.lizardtech.com

Mercurial SCM
The ITC thanks the Mercurial team for their efforts.
https://www.mercurial-scm.org/

Microsoft
Microsoft, Windows, Windows NT, Windows Server, Windows Vista, and Windows Silverlight are either trademarks or registered trademarks of Microsoft Corporation in the United States or other countries.
Special thanks to Microsoft Visio for creating the ITC and providing a perpetual license to the IntelliCAD source code in 1999.

Open Cascade Project
This software uses the Open Cascade open source library. See https://www.opencascade.com/ for details. Open Cascade is used under the LGPLv2.1.

Open Design Alliance
A special thanks from the ITC to our sister organization the Open Design Alliance.
“Open Design Alliance” and the Open Design Alliance logo are trademarks of the Open Design Alliance in the United States and/or other countries.
https://www.opendesign.com/

OpenSSL

Copyright © 1998-2008 the OpenSSL Project. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. All advertising materials mentioning features or use of this software must display the following acknowledgment: “This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit. (http://www.openssl.org/)”
4. The names “OpenSSL Toolkit” and “OpenSSL Project” must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact [email protected]
5. Products derived from this software may not be called “OpenSSL” nor may “OpenSSL” appear in their names without prior written permission of the OpenSSL Project.
6. Redistributions of any form whatsoever must retain the following acknowledgment: “This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/)”.

This software is provided by the Opens’ project “as is” and any expressed or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose are disclaimed. In no event shall the OpenSSL project or its contributors be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.
This product includes cryptographic software written by Eric Young ([email protected]). This product includes software written by Tim Hudson ([email protected]).
http://www.openssl.org/

Perl
The ITC thanks the Perl team for their efforts.
www.perl.org

Pictorex
ARTISAN Rendering provided by PICTOREX Limited, a privately owned limited company incorporated in England (company number 5458748). Registered Office address: 93 Banner Cross Rd., Sheffield, S11 9HQ, United Kingdom.
http://www.pictorex.com

Phing
Phing is a PHP project build system or build tool based on Apache Ant.
https://www.phing.info/

PHP
The ITC thanks the PHP team for their efforts.
http://php.net

Sciter
Sciter Engine, Copyright © Terra Informatica Software, Inc.
http://sciter.com

SelfExtractor
Version 1.12, Copyright © 2002 James Spibey <[email protected]>
This code was based on suggestions from: Levente Farkas, Roger Allen, GÃnter (surname unknown)
This code also contains code by Luca Piergentili and Mark Nelson
Uses Zlib by Jean-loup Gailly Mark Adler (http://www.zlib.org)
You are free to use, distribute or modify this code as long as this header is not removed or modified.
https://www.codeproject.com/Articles/39/%2FArticles%2F39%2FCreating-a-Self-Extracting-Executable

SoftwareKey
Copyright © 2002 Concept Software, Inc.

Spatial
ACIS, 3DScript and SAT are registered trademarks of Spatial Corp.
https://www.spatial.com

Subversion
The ITC thanks the Subversion team for their efforts.
https://subversion.apache.org

SWIG
The ITC thanks the SWIG team for their efforts.
http://www.swig.org

WinTab
Copyright © 1991-1994 by LCS/Telegraphics

WiX toolset
The ITC thanks the WiX team for their efforts.
http://wixtoolset.org/

XCrashReport
Version 1.0
https://www.codeproject.com/Articles/5257/XCrashReport-Exception-Handling-and-Crash-Reportin

Hans Dietrich <[email protected]>

This software is released into the public domain. You are free to use it in any way you like, except that you may not sell this source code.
This software is provided “as is” with no expressed or implied warranty. I accept no liability for any damage or loss of business that this software may cause.

Xerces
C++ XML parser.
Version 3.2.1, http://xerces.apache.org/xerces-c/
Apache License
Version 2.0, January 2004
http://www.apache.org/licenses/

zlib
zlib general purpose compression library
version 1.2.11, January 15th, 2017

Copyright © 1995-2017 Jean-loup Gailly and Mark Adler
This software is provided ‘as-is’, without any express or implied warranty. In no event will the authors be held liable for any damages arising from the use of this software.

Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions:

1. The origin of this software must not be misrepresented; you must not that you wrote the original software. If you use this software in a product, an acknowledgment in the product documentation would be appreciated but is not required.
2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software.
3. This notice may not be removed or altered from any source distribution.

Jean-loup Gailly <[email protected]>

Mark Adler <[email protected]>

The data format used by the zlib library is described by RFCs (Request for Comments) 1950 to 1952 in the files http://tools.ietf.org/html/rfc1950 (zlib format), rfc1951 (deflate format) and rfc1952 (gzip format).
http://www.zlib.net/zlib.html

2.11 Third Party Applications

In addition to Intellicad, ENDUROCADD may provide the Customer or its Registered Users with access to Third Party Applications including:

Third Party Application

Licence Terms or other details for Third Party Application

Spanman

Spanman.net

Cyotek.Windows.Forms.ColorPicker

MIT License (MIT) https://opensource.org/licenses/MIT

Ionic.Zip.dll

Microsoft Public License (Ms-PL) https://archive.codeplex.com/?p=dotnetzip

EPPlus

GNU Library General Public License (LGPL). https://archive.codeplex.com/?p=epplus

PDF_In_The_Box

Royalty-free deployment

http://www.synactis.com/pdf-in-the-box.htm

PDF to Vector v2.0

https://verypdf.com/

IWshRuntimeLibrary

 

SharpZipLib

GNU General Public License.

https://icsharpcode.github.io/SharpZipLib/

SOLOInstantPlus

Instant Protection PLUS 3

Tri-State Tree View

https://www.codeproject.com/Articles/202435/Tri-State-Tree-View

dynapdf.dll

DynaForms GmbH

DevExpress

Developer Express Inc.

GeometryGymIFC.dll

Geometry Gym Pty Ltd

Newtonsoft.Json.dll

The MIT License (MIT),

https://www.newtonsoft.com/json

OpenGL

https://www.opengl.org/

BlueScope does not make any representations or warranties regarding any Third Party Applications and will not be responsible for any use of the Third Party Applications by the Customer or its Registered Users.

2.12 Trained Software User

Only Designs certified by a Trained Software User for building types that are defined in their current Trained Software User Certificate can be manufactured, fabricated and installed. Where the building scope either falls outside building types defined in the Trained Software User Certificate or outside the scope of buildings in the ABCB Protocol for Structural Software V2011.1, the relevant Designs must be signed by a competent Professional Engineer.

For Designs completed outside Australia, the Trained Software User should obtain structural sign off by a person who is competent and authorised to do so in that country.
Trained Software Users cannot sign off on Designs using ENDUROCADD where the Design is for a building not covered by the applicable ENDUROCADD design manuals or not supported by the ENDUROCADD® software calculations. Any such Designs must be signed off by a Professional Engineer.

In order to certify a Design, the Trained Software User must validate the calculations underlying the Design and sign a “Certificate of Design Calculations” or other similar document in the form nominated by BlueScope from time to time. By signing the “Certificate of Design Calculations”, the Trained Software User is representing, amongst other things, that:

(a) the design criteria in the Certificate of Design Calculations are correct and:

(i) for ENDUROTRUSS® and ENDUROFLOOR®, the trusses have been passed the requirements set out in the Certificate of Design Calculations; and
(ii) for ENDUROWALL®, the wall framing components in the Certificate of Design Calculations comply with the requirements described in the Associated Documentation;

(b) the assumptions made by the Customer or End User are reasonable and match the Associated Documentation;

(c) the Design is fit for purpose and meets the plans that have been provided to the Customer; and

(d) The Trained Software User has the insurance required under these Product Terms.

The Customer must not represent or warrant that its Designs are fit for, and capable of, manufacture, fabrication and installation and must not directly or indirectly permit the Designs to be manufactured, fabricated or installed, unless and until the Designs have been certified by a Trained Software User or a Professional Engineer.

If during the Licence Term, a Registered User that is a Trained Software User ceases to be a Trained Software User for any reason or ceases to be a Trained Software User for a particular type of building, the Customer must ensure that the Registered User immediately ceases the certification of Designs. Any Designs developed by the Registered User after it ceases to be a Trained Software User must not be manufactured, fabricated or installed, unless and until certified by a Trained Software User or Professional Engineer.

A Trained Software User must maintain a current Trained Software User Certificate and provide a copy of the Trained Software User Certificate to an End User or a relevant building surveyor on request.

2.13 Fabricator

This clause applies to a Customer who is also a Fabricator.

Prior to installation of an End Product Designed by the Customer and certified by a Trained Software User or a Professional Engineer, the Fabricator is required to certify that the fabrication of the End Product complies with the relevant Associated Documentation and sign a “Certificate of Design Calculations” or other similar document in the form nominated by BlueScope from time to time.

The End Product must not be installed until such time as the Fabricator has provided the certification referred to above.

An End Product that is not certified by the Fabricator in accordance with these Product Terms must not be installed.

2.14 Dealer

This clause applies to a Customer who is also a Dealer.

Where the Dealer is not a Fabricator in respect of an End Product, the Dealer must enter a formal contract with the End User prior to supply of steel frames and trusses from ENDUROFRAME® components by the Dealer to the End User that provides for the following obligations as between the Dealer and End User:

(a) The Dealer must when supplying steel frames and trusses from ENDUROFRAME® components to the End User provide a copy of the Assembly Checklist at https://enduroframe.atlassian.net/wiki/spaces/ER/pages/1671342/Assembly+Checklist and any assembly details produced by ENDUROCADD to the End User.

(b) The End User must:

(i) carefully review the Assembly Checklist and any assembly details produced by ENDUROCADD, prior to assembly or installation of the End Product;

(ii) ensure that the End Product is not installed until the End Product has been assembled in accordance with the Assembly Checklist and any assembly details produced by ENDUROCADD;

(iii) rectify any frames or trusses that are not within documented tolerances and if rectification is not possible, the frames or trusses must not be used; and

(iv) ensure fabrication or assembly is done in accordance with the Design.

Where the Dealer is not a Trained Software User, then the Dealer must procure a Trained Software User or Professional Engineer to certify the Design. The Design is certified when that Trained Software User validates the calculations underlying the Design and signs the Certificate of Design Calculations or other

2.15 Insurance

(a) Where the Customer (or its Registered Users) are a Trained Software User and/or a Fabricator, the Customer must take out and maintain:

(i) for the Term and a period of three years after the Term, a broad public and products liability policy written on an occurrence basis with a limit of indemnity of not less than $20,000,000 for each occurrence and, with respect to products liability only also in the aggregate for all occurrences during the policy period, which covers the Customer’s liability in respect of loss of, damage to, or loss of use of property or the injury (including disease or illness) to, death of or illness of any person happening anywhere in Australia and arising out of or in the course of or in connection with the Agreement; and

(ii) for the Term and a period of three years after the Term, a professional indemnity policy with a limit of indemnity of not less than $5,000,000 for each occurrence; and

(iii) any other insurances reasonably required by BlueScope from time to time on no less than 45 days written notice to the Customer.

(b) Where the Customer is a Dealer, the Dealer must obtain the following insurance prior to supply of the steel frames and trusses from ENDUROFRAME™ components to an End User. The Dealer must obtain broad public and products liability policy written on an occurrence basis with a limit of indemnity of not less than $20,000,000 for each occurrence and, with respect to products liability only also in the aggregate for all occurrences during the policy period, which covers the End User’s liability in respect of:

(i) loss of, damage to, or loss of use of property; and

(ii) the injury (including disease or illness) to, death of or illness of any person,

happening anywhere in Australia and arising out of or in the course of or in connection with fabricating, assembling or installing the End Product.

(c) The Customer must, if requested by BlueScope, provide BlueScope with certificates from the Customer’s insurers certifying that the Customer has the insurance required under this clause 2.15 within 10 Business Days of BlueScope’s request.

(d) If the Customer does not comply with clauses 2.15(a), 2.15(b) or 2.15(c), BlueScope may, but is not obliged to, effect the relevant insurances and may recover the cost of doing so as a debt from the Customer or deduct the premiums payable from any amounts payable to the Customer under this Agreement.

(e) The Customer must notify BlueScope immediately upon receiving a notice of cancellation or any other notice in respect of the insurances required to be maintained under this clause 2.15 from any insurer.

(f) The Customer must ensure that the insurances referred to in clause 2.15 extends to insure BlueScope for its vicarious liability for acts or omissions by the Customer or its employees, agents or contractors and the policy must provide that the insurer waives all rights of subrogation which it may otherwise be entitled against BlueScope to the extent that BlueScope is insured under the policy.

(g) In respect of any insurance effected which insures multiple insureds, the Customer must ensure that the policy includes a cross-liability clause, a clause in which the insurer agrees not to impute the acts or omissions of one insured to another insured and, a clause in which the insurer agrees that any non-disclosures or misrepresentations prior to the effecting of the policy by any person will not be imputed to any other insured.

(h) Subject to the Customer’s obligations to its insurers, the Customer must inform BlueScope immediately of it becoming aware of any actual, threatened or likely claims under any of the insurances referred to in this clause 2.15 which could materially reduce the available limit.

(i) The provisions of this clause 2.15 are not to be read so as to reduce the Customer’s liability under any other provision of the Agreement.

ENDUROHUB® PRODUCT TERMS

1.              Background

BlueScope and the Customer are parties to the General Software Terms which set out the general terms and conditions that apply to software products BlueScope makes available.

This document is the Product Terms for the ENDUROHUB software product provided by BlueScope (ENDUROHUB). This document forms part of and is incorporated into the General Software Terms. By accessing or using ENDUROHUB, the Customer accepts and will be bound by these Product Terms.

2.              Product Terms      

2.1           Definitions

Unless specified otherwise, capitalised terms used in these Product Terms have the meaning given in the General Software Terms. In these Product Terms:

Customer Employees means individuals who are full time, part time or casual employees of the Customer.

End Product means any steel product designed by the Customer or its Registered Users using ENDUROCADD and/or the Associated Documentation, which is manufactured and fabricated but may or may not be assembled.

ENDUROCADD means the ENDUROCADD software product made available by BlueScope, as detailed on the www.enduroframe.com.au website.

Steel means BlueScope’s steel product for house framing currently known as TRUECORE® steel.

2.2     ENDUROHUB software product

The ENDUROHUB software product transforms numeric control data contained in orders generated by ENDUROCADD to sort and schedule on ENDURO rollformers. It also generates reports on production orders and ENDURO rollformer operating performance.

 
2.3     Associated Documentation

The Associated Documentation for ENDUROHUB will be made available by BlueScope at the ENDUROFRAME® Manufacturing Help pages at https://enduroframe.atlassian.net/wiki/spaces/ER/website. The Associated Documentation may be updated by BlueScope from time to time. The latest versions of the Associated Documentation, including any additions or deletions can be found at the links above or by contacting BlueScope. Access to many of the documents on the websites will require a username and password. BlueScope will provide usernames and passwords to access the Associated Documentation to Registered Users. Registered Users may change the password. Registered Users shall not share these usernames and passwords. Additional terms and conditions may also apply in order for the Customer or the Registered Users to access or use ENDUROCADEMY online training portal content or documentation.

2.4     Access Term

For the purpose of these Product Terms, the Access Term commences on the date the Customer enters into a Rollformer Agreement. The Access Term continues so long as the Customer has a current Rollformer Agreement in place with BlueScope and is in compliance with the terms of that Rollformer Agreement (unless the Customer’s rights to access and use ENDUROHUB are terminated earlier pursuant to the General Software Terms).

2.5     Access rights

For the purposes of the General Software Terms, ENDUROHUB is a Hosted Product. During the Access Term, BlueScope grants the Customer a non-exclusive, revocable, personal, non-sublicenable right to access and use ENDUROHUB by permitting Customer Employees to access and use ENDUROHUB only for the internal business purposes of the Customer and only to manufacture End Products using or incorporating Steel. The Customer acknowledges that, as ENDUROHUB is made available only as a Hosted Product, the Customer will not have access to a copy of the  ENDUROHUB software or the code for the ENDUROHUB software and will not have any rights regarding ENDUROHUB or the ENDUROHUB software, other than the limited rights to access and use ENDUROHUB as a Hosted Product as set out in these Product Terms.

2.6     Use Verification Tools

The Customer acknowledges that ENDUROHUB may contain or utilise user verification or auditing software components or tools (Use Verification Tools) and BlueScope may use the Use Verification Tools to monitor the use of ENDUROHUB by the Customer or the Customer Employees and to disable or suspend the Customer or any Customer Employees access to ENDUROHUB if:

(a)       the Customer commits a material breach of these Product Terms or the General Software Terms in respect of ENDUROHUB; or

(b)       the Customer or any Customer Employee accesses or uses ENDUROHUB other than as permitted under these Product Terms. 

2.7     Support services

Unless agreed otherwise between BlueScope and the Customer, the only support services BlueScope provides to the Customer for ENDUROHUB will be BlueScope using commercially reasonable efforts to respond to reasonable support requests submitted by the Customer via the ENDUROFRAME online support portal and BlueScope making training and other materials regarding ENDUROHUB available for the Customer to access online through the ENDUROCADEMY training portal (with BlueScope determining the training and other materials that will be made available).

2.8     Functionality

ENDUROHUB will have the functionality and features set out in the Associated Documentation from time to time. Additional functionality and features may be offered or made available by BlueScope from time to time, however the Customer acknowledges that the use of such additional functionality or features may require the Customer and BlueScope to agree additional terms (including regarding fees that may be payable by the Customer for such additional functionality or features).

2.9     Third Party Applications

ENDUROHUB may provide the Customer or its Registered Users with access to Third Party Applications. These are listed at https://enduroframe.atlassian.net/wiki/spaces/EH/pages/1953005582/Third-Party+Software+Libraries.BlueScope does not make any representations or warranties regarding any Third Party Applications and will not be responsible for any use of the Third Party Applications by the Customer or its Registered Users.
 

ENDURO® Rollforming Machine Human Machine Interface (HMI)-PRODUCT TERMS

1.              Background

BlueScope and the Customer are parties to the General Software Terms which set out the general terms and conditions that apply to software products BlueScope makes available.

This document is the Product Terms for the ENDURO® Rollforming Machine Human Interface software that BlueScope makes available with a Rollforming Machine (HMI Software). This document forms part of and is incorporated into the General Software Terms. By accessing or using HMI Software, the Customer accepts and will be bound by these Product Terms.

2.              Product Terms    

2.1           Definitions

Unless specified otherwise, capitalised terms used in these Product Terms have the meaning given in the General Software Terms. In these Product Terms:

Designated Device means a touch screen PC or other similar device supplied by BlueScope with the Rollforming Machine or otherwise approved by BlueScope for use with the Rollforming Machine.

End Product means products manufactured by the Customer using the Rollforming Machine.

Rollforming Machine means a rollforming machine supplied to the Customer by BlueScope under a Rollformer Agreement.

Steel means BlueScope’s steel product for house framing currently known as TRUECORE® steel.

2.2           HMI software product

The HMI software product provides an interface for operators to select and run orders on the Rollforming Machine, request and track lineal meter credits, and operate the Rollforming Machine

 2.3           Associated Documentation

The Associated Documentation for the HMI Software will be made available by BlueScope at the ENDUROFRAME® Manufacturing Help pages at https://enduroframe.atlassian.net/wiki/spaces/ER/website (a username and password may be required to access the Associated Documentation). The Associated Documentation may be updated by BlueScope from time to time. The latest versions of the Associated Documentation, including any additions or deletions can be found at the links above or by contacting BlueScope. Access to many of the documents on the websites will require a username and password. BlueScope will provide usernames and passwords to access the Associated Documentation to Registered Users. Registered Users may change the password. Registered Users shall not share these usernames and passwords. Additional terms and conditions may also apply in order for the Customer or the Registered Users to access or use ENDUROCADEMY online training portal content or documentation.

2.4           Permitted Number

Unless agreed otherwise by BlueScope, the Permitted Number of copies of HMI Software that can be loaded onto a Designated Device or accessed and used on the Designated Device will be one copy of the HMI software on a Designated Device for each Rollforming Machine.

2.5           Licence Term

For the purpose of these Product Terms, the Licence Term commences on the date the Customer enters into a Rollformer Agreement. The Licence Term continues so long as the Customer has a current Rollformer Agreement in place with BlueScope and is in compliance with the terms of that Rollformer Agreement (unless the Customer’s rights to access and use the HMI Software are terminated earlier pursuant to the General Software Terms).

2.6           Licence rights

For the purposes of the General Software Terms, the HMI Software is a Licensed Product. During the Licence Term, BlueScope grants the Customer a non-exclusive, revocable, personal, non-sublicenable right to use the HMI Software by:

(a)       loading or retaining the Permitted Number of copies of the HMI Software on the hard drive of a Designated Device; and

(b)       accessing and using the HMI Software only on such Designated Device and provided that all such access and use:

(i)          must comply with the Permitted Number requirements in item 2.4 of these Product Terms; and

(ii)         must be only for the internal business purposes of the Customer and only to manufacture End Products using or incorporating Steel.

2.7           Use Verification Tools

The Customer acknowledges that the HMI Software may contain or utilise user verification or auditing software components or tools (Use Verification Tools) and BlueScope may use the Use Verification Tools to monitor the use of the HMI Software by the Customer and its users and to disable or suspend the Customer or any of its users access to the HMI Software if:

(a)       the Customer commits a material breach of these Product Terms or the General Software Terms in respect of the HMI Software; 

(b)       the Customer fails to pay the relevant Fees to BlueScope under the Rollformer Agreement and such failure to pay is not remedied by the Customer 30 days after BlueScope having notified the Customer of the failure to pay; or

(c)       the Customer or any user accesses or uses the HMI Software other than as permitted under these Product Terms. 

2.8           Support services

Unless agreed otherwise between BlueScope and the Customer, the only support services BlueScope provides to the Customer for the HMI Software will be BlueScope using commercially reasonable efforts to respond to reasonable support requests submitted by the Customer via the online ENDUROFRAME support portal and BlueScope making training and other materials regarding the HMI Software available for the Customer to access online through the ENDUROCADEMY training portal (with BlueScope determining the training and other materials that will be made available).

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