United States site instead?BIMcloud Software as a Service
PLEASE READ THESE TERMS OF SERVICE (HEREINAFTER REFERRED TO AS “TOS” OR “AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT YOU, AS THE CUSTOMER OR THE REPRESENTATIVE OF THE CUSTOMER (DEFINED BELOW), INDICATE THE CUSTOMER’S ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF SERVICE IN RELATION TO THE BIMCLOUD SOFTWARE AS A SERVICE FOR THE CUSTOMER AND ANY AUTHORIZED USERS WHETHER OR NOT EACH SUCH AUTHORIZED USER INDICATES HIS/HER INDIVIDUAL ACCEPTANCE.
1. DEFINITIONS
Unless otherwise defined in this Agreement the following terms shall bear the meaning defined herein below:
1.1. “Customer” or “You”– the person or entity subscribing for the Service and each authorized User accessing the Service on behalf of that person or entity, all of whom are authorized to use the Service solely for his/her/its own purposes and not for any further distribution or resale;
1.2. “Billing Date” – the BIMcloud Software as a Service Subscription plan term renewal date.
1.3. “BIMcloud SaaS Subscription” – the BIMcloud SaaS monthly or annual subscription plan sold to Customer by Service Provider via the Subscription Portal.
1.4. “BIMcloud Administrator” –the person appointed by the Contract Manager during the purchase process of BIMcloud SaaS Subscription. The BIMcloud Administrator has full access to all BIMcloud controls, can create additional BIMcloud User Accounts on behalf of the Customer and assigns them roles and permissions as appropriate according to the Customer.
1.5. “BIMcloud Tenant” – One instance of BIMcloud, dedicated to one Customer;
1.6. “BIMcloud User Account” – Created by the BIMcloud Administrator on behalf of the Customer, providing privileges for an individual within the Customer to create and access Content on that Customer’s BIMcloud Tenant.
1.7. “BIMcloud User License” – License that provides access right to the BIMcloud Tenant for each registered BIMcloud User.
1.8. “Business Day” – Monday to Friday excluding public holidays in the United Kingdom and the business days that fall between Christmas and New Year.
1.9. “Content” – any and all information and data uploaded, downloaded, made available or shared in the BIMCloud Tenant by the Customer, its registered Users or Service Provider, including but not limited to ARCHICAD project files, backups, User accounts and settings on a BIMcloud Tenant
1.10. “Contract Manager” – the Contract Manager is appointed by the Customer and has full representation right on behalf of the Customer with any and all matters related to the BIMcloud SaaS, such as, for example, to accept this TOS, to manage the Subscription, including without limitation, purchase, cancellation, termination, upgrade and downgrade of the Subscription, on the Subscription Portal.
1.11. “Fees” – the non-refundable amounts payable by the Customer to the Service Provider in consideration of the BIMcloud Saas Subscription, as set out on the Subscription Portal.
1.12. “GRAPHISOFT” – GRAPHISOFT SE, Budapest, Hungary (registered address: Záhony utca 7. Budapest H-1031, Hungary), manufacturer of the ARCHICAD and BIMcloud software.
1.13. “Normal Business Hours” – 9 am to 5 pm (GMT) on Business Days. Monday to Friday excluding public holidays in the United Kingdom and the business days that fall between Christmas and New Year.
1.14. “Support Services” – the support services described in clause 7.
1.15. “Reactivation” – changing the status of the Service that has been cancelled or terminated into active status during the Cancellation Period. During the reactivation process, the number of authorized Users shall be reinstated as is determined by the Customer in the reactivation process. Unless the number of authorized Users is expressly determined in the reactivation process the number of authorized Users which was administered by the Subscription Portal prior to the cancellation shall be reactivated and the subscription Fees shall be based on that number. The reactivation fee connected to the reactivation is indicated on the Subscription Portal.
1.16. “Service” – BIMcloud Software as a Service, being the hosted collaboration tool licensed by Graphisoft.
1.17. “Service Provider” – GRAPHISOFT UK Ltd. with its registered office at Harman House, 1 George Street, Uxbridge UB8 1QQ United Kingdom; registered under registration number 01405104 at Companies House, Crown Way, Maindy, Cardiff, CF14 3UZ, UK.
1.18. “Subscription Portal” – the online purchasing system where Customers are able to purchase BIMcloud Subscription from Service Provider according to the terms and conditions of the current TOS.
1.19. “TOS” – this BIMcloud Software as a Service Terms of Service.
1.20. “User” – an individual end-user who is authorized by the BIMcloud Administrator to have access to the Bimcloud Tenant.
2. SUBJECT OF THESE TOS
2.1. Service Provider makes – by involving in particular GRAPHISOFT as its platform provider – the BIMcloud SaaS, including all information, Content and service available to the Customer subject to the terms and conditions set forth in this TOS. GRAPHISOFT shall be authorized to render the actions specified in this TOS in name and on behalf of the Service Provider and Service Provider shall bear full liability for any conduct and actions of GRAPHISOFT carried out related to this TOS.
2.2. These TOS are to be applied together with other legal documents such as Service Provider’s Privacy Policy, Graphisoft’s Privacy Policy and related End User License Agreements available at www.graphisoft.com/licenses.
2.3. By utilizing the Service in any way (at the first time or at each renewal), with or without registration, including but not limited to accessing the Service’s website(s), uploading, sharing and downloading Content in the Service or any other activity involving any component of the Service, You accept these terms and conditions as a binding agreement between You and Service Provider concerning Your use of the Service. Service Provider – directly or through GRAPHISOFT – may unilaterally revise this TOS, the relevant Privacy Policy and all other legal documents governing the use of the Service at any time without notice. Furthermore, You also accept that GRAPHISOFT may change its Privacy Policy relevant to the Service. You are responsible for regularly reviewing these terms and conditions. Continued use of the Service following any such changes shall constitute Your acceptance of such changes.
2.4. Customer expressly agrees that neither GRAPHISOFT nor Service Provider shall be liable for any unavailability or malfunctioning of the Subscription Portal and in particular for any delay in processing orders. The Subscription Portal shall be made available by Service Provider for Customers through a valid invitation link.
3. TERM OF THE AGREEMENT
3.1. The term for the BIMcloud SaaS Subscription (“Term”) is a one month-period (in case of a monthly subscription) or a one year-period (in case of an annual subscription) starting from the date of payment of the Fees charged and paid by You as set forth in this TOS and on the Subscription Portal. In case of the addition of a new User to an existing BIMcloud SaaS Subscription, the initial Term for the new User may be shorter in order to harmonize the billing dates for the new User with the billing date of the original BIMcloud SaaS Subscription.
3.2. Each BIMcloud SaaS Subscription automatically renews at the end of each Term for a renewal Term of the same length, subject to Customer’s timely payment of the Fees, until change of the length of Term by Customer in accordance with clause 10, or until terminated by either Customer or Service Provider in accordance with clauses 15.1 to 15.5. Parties expressly agree that any additional Subscriptions purchased by the Customer shall be governed by this Agreement without further express acceptance thereof.
4. USE OF THE SERVICE
4.1. In order to be able to use the Service You need to have at least one valid BIMcloud User Account with an email address and password. Access and use of the Service and any Content, including viewing, uploading and downloading of Content, available in the Service shall be subject to this TOS.
4.2. Service Provider hereby grants You a non-exclusive, revocable and limited right to use the Service and access the Content on Your BIMcloud Tenant that is not owned by the Customer (such as for example Graphisoft’s Content) solely for the purposes of using the Service Your BIMcloud Tenant in accordance with these TOS and additional terms applicable to such Content, if any, for Your internal business or personal use only.
4.3. By accepting this TOS You expressly accept that use of the Service is subject to Fees and other charges as notified by Service Provider from time to time.
4.4. You represent and warrant that You are of legal age and You have full capacity to form a binding contract and are not a person barred from receiving services under the laws of Your country. Upon registering for the Service, and during the full term of Your registration, You agree to provide and maintain true, accurate, current and complete information about Yourself. If Service Provider has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Service Provider has the right to suspend or terminate Your BIMcloud SaaS Subscription, Contract Manager Account or BIMcloud User Account, as the case may be, and refuse any and all current or future use of the Service and Your BIMcloud Tenant. The provision of Your personal data to Service Provider is subject to Service Provider’s Privacy Policy and Graphisoft’s Privacy Policy.
4.5. The intended exclusive purpose (fair use) of the Service is design collaboration on ARCHICAD project files. Service Provider may set forth other specifications with regards to the fair use of the Service (such as for example the maximum uploaded (stored) Gb/BIMcloud User license) that shall be complied by the Customer. The use of the Service for any other purposes than the intended purpose, and/or non-compliance with the specifications set by Service Provider, shall constitute a breach of this TOS by You, in which case Service Provider has the right to terminate Your BIMcloud SaaS Subscription, remove any Content, and cancel the BIMcloud Tenant and/or BIMcloud User Accounts without prior written notification or – in Service Provider’s discretion – may offer an individual Service level and pricing to the Customer to accommodate different usage requirements.
4.6. You agree that either Service Provider or GRAPHISOFT are entitled to remove any Content You upload to Your BIMcloud Tenant without notification or without Your prior approval. In such case, Service Provider and GRAPHISOFT shall have no responsibility of any kind and You are not entitled to any indemnification. Service Provider and GRAPHISOFT shall have no responsibility of any kind, and You are not entitled to any indemnification, for and in connection with any infringing use, unlawful use, Content or comment published to Your BIMcloud Tenant or otherwise in the Service.
4.7. You accept that Your registration according to the terms set forth herein is required to use the Service.
4.8. You accept that Service Provider and GRAPHISOFT, as part of the development of the Service and otherwise, shall have the right, in their sole discretion, and at any time
(i) to add new features,
(ii) add new third party software components or
(iii) to modify or discontinue certain feature(s) of the Service. Your continuous use of the Service qualifies as acceptance of such modifications.
4.9. You are solely responsible to ensure adequate internet connection and hardware, software infrastructure necessary to the proper operation of the Service. You also accept that neither Service Provider nor GRAPHISOFT is able to guarantee that the Service is available and operating uninterrupted from any and all locations and jurisdictions due to technical and legal reasons.
5. BIMCLOUD USER ACCOUNTS
5.1. At the commencement of each BIMcloud Saas Subscription, Service Provider provides the Customer with a BIMcloud Tenant and a first BIMcloud Administrator User Account. Further BIMcloud User Accounts may be registered by the BIMcloud Administrator. It is the Customer’s sole discretion to allow its BIMcloud Administrator to register Users with their own BIMcloud User Accounts.
5.2. The Customer shall be authorized to create as many BIMcloud User Accounts on its BIMcloud Tenant for as many User licenses as the Customer purchased during the ordering process, or as upgraded or downgraded by Customer. The Customer may order additional User licenses anytime, and may decrease the number of User licenses as of the end of the then current Term of the Service.
5.3. Users holding a BIMcloud User Account to the BIMcloud Tenant are entitled to upload and view the Content available on the BIMcloud Tenant. The Customer may provide Users with different types of access to the BIMcloud Tenant.
5.4. To create a BIMcloud User Account, the Users need to submit their real name and a valid email address. Registered Users may not impersonate any person or entity, or falsely state or otherwise misrepresent their affiliation with a person or entity, including, but not limited to,
(i) an administrator , moderator, or in any way other genuine Users of the Service,
(ii) officer, agent, or employee of a Partner of Service Provider or GRAPHISOFT or any of their respective subsidiaries or affiliates.
5.5. The Customer and its Users are solely liable for maintaining the confidentiality of their BIMcloud User Accounts and related passwords. The Users and the Customer remain fully liable for any access and use of the User Accounts registered on the BIMcloud Tenant, whether the access have been authorized or not. It is the Users’ and the Customer’s responsibility to take adequate precautions in respect of the BIMcloud User Accounts and related password, and to immediately notify Service Provider of any loss or unauthorized disclosure or use of any BIMcloud User Account and related password.
5.6. Service Provider and GRAPHISOFT may use and process the personal data associated with the BIMcloud User Accounts according to Service Provider’s Privacy Policy and GRAPHISOFT Privacy Policy.
6. CANCELLATION / REACTIVATION
6.1. On behalf of the Customer, the Contract Manager may terminate the BIMcloud SaaS Subscription at any time up to 24 hours prior to the Billing Date by using the ‘Cancel Subscription’ function on the Subscription Portal. Termination will take effect at the end of the current pre-paid period (and the Customer will not be entitled to any refunds for amounts paid in advance).
6.2. Starting as of the first day the cancellation takes effect the Service runs in a limited operation mode for additional 2 (two) weeks (“Cancellation Period”). During the Cancellation Period, the Customer is able to access the BIMcloud Tenant but the Service cannot be used by any individual Users on behalf of the Customer, other than the Customer’s primary BIMcloud Administrator, who will continue to have access to the Service exclusively for Content export purposes.
6.3. During the Cancellation Period, the Contract Manager may reactivate the Service on behalf of the Customer. The Customer’s Contract Manager shall receive a notification each 7 (seven) days and 1 (one) day prior to the end of the Cancellation Period about the possibility of reactivation and the effects of the Service cancellation. The reactivation shall take place after the reactivation fee, as provided for in the Subscription Portal, is processed successfully. The starting date of the reactivated Service shall be the reactivation date indicated on the Subscription Portal and the Service term shall be one month or one year period of time respectively. In case of reactivated Service associated with other Subscription(s) the Term of the Service shall be synchronized with the existing Subscription(s).
6.4. If reactivation is not ordered on on before 24:00 hours Central Europe Time (CET) of the last day of the Cancellation Period, all BIMcloud User Accounts and the BIMcloud Tenant and all stored Customer Content will be deleted.
7. SUPPORT SERVICES
7.1. The Service Provider will provide the Customer with the following Support Services while the Customer maintains its BIMcloud SaaS Subscription:
· priority e-mail support during Normal Business Hours;
· access to a range of tips and related learning aids via the https://www.graphisoft.com/downloads/UK/ssa-gsid/ website;
· such discounted Service-related training, seminars as the Service Provider may provide from time to time.
8. SUPPORT AVAILABILITY
8.1. The Service Provider shall provide the Support Services only during Normal Business Hours.
8.2. If the Customer requests the Service Provider to provide on-site support, the Service Provider will use reasonable endeavors to do so and will charge an Additional Charge for providing such services and reasonable travel costs in accordance with the Service Provider”s then current standard rates.
8.3. The Service Provider does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside Normal Business Hours or that it can provide on-site Support Services outside Normal Business Hours.
9. FEES
9.1. The Customer shall pay the Fees to the Service Provider on a monthly/yearly non-refundable basis in advance of each month/year it wishes to maintain a BIMcloud SaaS Subscription. In the case of an existing BIMcloud SaaS Subscription, if Customer adds additional Users during the Term, the Fees for those additional Users shall be harmonized to the term of the Customer’s existing BIMcloud SaaS Subscription. The Fees shall be charged to the Customer”s credit card on the Billing Date of each term. If payment cannot be taken on the Billing Date, the Service Provider will attempt to take payment again three (3) days later. After 2 (two) failed due payments the active status of the BIMcloud SaaS Subscription shall be changed automatically to cancelled status and the Cancellation Period starts on the day of change of the status. The Service Provider shall send to the Customer’s Contract Manager, on the status change date, a notification about the limited access to the BIMcloud Tenant and the limited operation mode of the Service. Reactivation from cancelled status to active status may take place according to the Reactivation process described in Section 6.
9.2. Fees indicated on the Subscription Portal exclude taxes which will be automatically added by the Subscription Portal (where applicable) at the applicable current rates. The Customer is responsible for the timely payment of any taxes, levies or other similar payments required in its jurisdiction, and Customer indemnifies and holds Service Provider and GRAPHISOFT harmless against any claims by any tax authorities for any underpayment or any tax or levy, and any penalties and/or interest.
9.3. Fees are subject to change at any time by Service Provider; however, the Service Provider will give the Customer 90 days” advance notice of any fee changes by email communication. The Service Provider will not be liable to the Customer or any third party for any changes to Fees.
10. TERM CHANGE
10.1. The Customer may change the length of its BIMcloud SaaS Subscription Term (either one month or one year) at any time by following the steps on the Subscription Portal. The term change will become effective at the end of the then current term. The Customer shall not receive a refund if changing an annual term to a monthly term.
11. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
11.1. You are entitled to upload to Your BIMcloud Tenant only Content that is either Your own intellectual property or for which You have an appropriate valid license from the copyright owner to upload it to Your BIMcloud Tenant according to this TOS. You shall bear full liability for any and all Content uploaded by You. If Service Provider or GRAPHISOFT has reasonable grounds to suspect that any Content uploaded by You may infringe copyright or other applicable laws, Service Provider or GRAPHISOFT may remove it without Your consent and without prior notice. Service Provider or GRAPHISOFT may also terminate the BIMcloud User Accounts of Users with repeat infringements.
11.2. By accepting this TOS You accept that Service Provider and GRAPHISOFT are entitled to access and analyze any Content for the purposes of improving the Service and troubleshoot errors in the Service.
11.3. You retain ownership of all intellectual property rights that You have to the Content You upload to Your BIMcloud Tenant, subject to the rights granted to Service Provider and GRAPHISOFT pursuant to this TOS. Access to and sharing of Your Content and Your personal information remains at all times in Your control as enabled by the Service from time to time. If You believe that Your Content has been copied in a way that constitutes copyright infringement, or Your intellectual property rights or personal information have been otherwise violated, please report it to Service Provider without delay. Your report should include Your statement that
(i) You have a good faith belief that the use of the Content is not authorized by the copyright owner,
(ii) You are the copyright or intellectual property owner, or You are authorized to act on the copyright or intellectual property owner’s behalf.
In the event of removal of Content in these circumstances, Service Provider and GRAPHISOFT shall have no responsibility of any kind and You are not entitled to any indemnification.
11.4. You acknowledge that You do not have the right to use, reproduce, create derivative works of, distribute, publicly perform and publicly display Content submitted by other Users of the Service, except as permitted by the owner of such Content.
11.5. You are prohibited from copying any personal data (such as for example personal name and e-mail address) from or using any personal data made available through the Service.
12. GENERAL LIMITS AND PRACTICES
12.1. You are expressly prohibited from decompiling, disassembling, reverse engineering, or reducing the Service or any components thereof for any purpose whatsoever.
12.2. You may not unlock or otherwise attempt to discover the source code or underlying algorithms of the software operating the Service or attempt to do any of the foregoing in relation to the object code of the Service.
12.3. You may not use the Service for development, compilation, debugging and similar design-time purposes.
12.4. You are expressly prohibited from adapting, modifying, translating or creating any derivative works based in whole or in part of the Service or the related software, and from merging the software operating the Service into any other software.
12.5. You may not copy any materials accompanying the Service.
12.6. You are expressly prohibited from dividing or reselling Your right to use the Service or the license related thereto and reselling part(s) of it.
12.7. You may use all elements of the Service or any Content as integral components thereof exclusively for the purposes of performing the functionalities of the Service set forth by Service Provider.
12.8. You are expressly prohibited from providing “Software as a Service” (e.g., “BIMcloud as a Service”) for third parties or other similar services which involve the reassignment of Your rights granted herein to third parties e.g., remarketing, reselling services or cloud services.
12.9. You are prohibited from circumventing or supplying a system in order to circumvent the protection methods of the Service and using the Service in any other unauthorized manner.
12.10. You expressly acknowledge that the breach of any provisions of this chapter 12 constitutes a breach of this Agreement giving the right to Service Provider to immediately terminate this Agreement, and Service Provider will take the necessary measures in order that the breach be terminated and to enforce Your compliance with the above provisions. In addition, Service Provider shall be entitled to enforce payment for its damages as well as other rights and claims under the governing laws in force resulting from Your breach of this Agreement.
12.11. You acknowledge that Service Provider may establish general practices and limits concerning the use of the Service, including but not limited to the maximum number of project files uploaded (in total and/or in a time frame), the maximum size of project files uploaded, maximum size of storage size allotted to one Customer, the maximum number of times, and the maximum duration for which You can access the Service in a given period of time. Service Provider makes all reasonable efforts to ensure the continuous availability of the Service but interruptions may occur due to scheduled maintenance or for other reasons. You agree that Service Provider and GRAPHISOFT have no responsibility or liability for the interruption of the Service and any loss of Your Content. You acknowledge that Service Provider or GRAPHISOFT may cancel the Service if it infringes any practices and limits established by Service Provider or GRAPHISOFT. You further acknowledge that Service Provider reserves the right to modify these general limits and practices at any time.
12.12. In order to avoid any loss of data and ensure data security, Service Provider and GRAPHISOFT strongly recommend creating daily, offline backups of Your Content.
12.13. You explicitly acknowledge and accept the transfer of this Agreement from Service Provider to GRAPHISOFT or to its direct affiliate by Graphisoft any time. The details of the transfer and the revised terms and conditions will be communicated to You in a transfer notice either by Service Provider or GRAPHISOFT. You also explicitly acknowledge and agree that notwithstanding the terms and conditions of this Agreement, Graphisoft or the third party appointed by it shall be entitled to unilaterally amend either the scope of services provided under this Agreement, or any other material term thereof.
13. CONTENT STORAGE
13.1. Service Provider operates the Service by involving third party subcontractors located worldwide, which You hereby approve. Third party subcontractors may be involved in the operation of the servers where Your Content is stored, as a result of which these third parties may have access to Your Content.
14. DISCLAIMER
14.1. Except where expressly provided otherwise in a written agreement between You and Service Provider, to the extent permitted by the applicable rules of law all content, materials, information, software, products and service provided to You through the Service, are provided on an “as is” basis and without warranties of any kind, either express or implied, including, but not limited to, the implied warranties of accuracy, reliability, merchantability, fitness for a particular purpose and non-infringement. Service Provider and GRAPHISOFT makes no warranty that the Service will meet Your requirements; that the Service will be available on an uninterrupted, timely, secure, or error-free basis; that defects will be corrected; that the Service is free of viruses or other harmful components; or the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your expectations.
14.2. Any content, materials, information or software downloaded or otherwise obtained through Your use of the Service is done exclusively at Your own discretion and risk. Service Provider and GRAPHISOFT shall have no responsibility for any damage to Your computer system or loss of data that results from the download of any content, materials, information or software.
14.3. Service Provider and GRAPHISOFT reserve the right to unilaterally make changes or updates to the Service, discontinue it temporarily or permanently, modify any terms of this TOS at any time with or without notice . You agree that Service Provider and GRAPHISOFT shall not be liable for any modification or suspension of the Service and not be liable to You or anyone else for any negative effect deriving from such measures. The continuous use of the Service qualifies as Your acceptance of these measures and modifications.
15. TERMINATION
15.1. The Contract Manager may terminate the BIMcloud SaaS Subscription on behalf of the Customer at any time up to 24 hours prior to the Billing Date by using the ‘Cancel Subscription’ function on the Subscription Portal. Termination will take effect at the end of the current pre-paid period (and the Customer will not be entitled to any refunds for amounts paid in advance).
15.2. The Service Provider may terminate this Agreement immediately on written notice to the Customer if the Customer breaches any of its obligations under this Agreement and fails to remedy the breach within five days of receiving notice requiring the breach to be remedied.
15.3. Cause for such termination and cancellation shall include, but not be limited to,
(i) breache(s) of this TOS,
(ii) requests by law enforcement agencies,
(iii) discontinuance of the Service,
(iv) failure to pay Fees when due.
15.4. In the event of termination under this point, Service Provider or GRAPHISOFT shall have no responsibility of any kind and You are not entitled to any indemnification. In case of termination of this Agreement for any reasons Service Provider and GRAPHISOFT does not store Your Content starting from the date of termination and Service Provider and GRAPHISOFT shall delete all Your Contents without any legal consequences.
15.5. On termination of this Agreement:
(i) any outstanding amounts due to the Service Provider will become immediately due and payable;
(ii) the Service Provider will cease to provide, and the Customer will cease to have any entitlement to, the BIMcloud SaaS Subscription or the Support Services.
16. WARRANTIES AND LIMITATION OF LIABILITY
16.1. Each party acknowledges that the goods and services provided by the Service Provider are supplied for Customer”s business use and that the provisions of the Magnuson-Moss Warranty Act does not apply.
16.2. The Service Provider will give the Customer all reasonable assistance where the BIMcloud SaaS Subscription is not in accordance with Service Provider’s warranty. Service Provider does not give, and explicitly disclaims any other warranties, whether express or implied, including warranties of fitness for a particular purpose, merchantability and non-infringement to the maximum extent allowed by the applicable rules of law.
16.3. There may be factors beyond the Service Provider”s control affecting the ultimate success of the use to which the BIMcloud SaaS Subscription and the Support Services are being provided. Consequently, these terms replace all other representations and warranties (statutory, express, written or oral) and all such representations and warranties (except any which cannot lawfully be excluded) are expressly excluded.
16.4. To the extent permitted by the applicable rules of law, the Service Provider and GRAPHISOFT will not under any circumstance be liable to you or to any third party, whether under the laws of tort, negligence, contract or otherwise/for any any direct, indirect, incidental, special or consequential damages, or damages whatsoever resulting from loss of profits, revenues, savings or Content, or inability to use, however caused, arising out of, resulting from or in conjunction with
(i) the performance or non-performance of this TOS, the BIMcloud SaaS Subscription and the Support Services,
(ii) Your access to, or use of, or uploading of Content or downloading through the Service and
(iii) infringement of intellectual property rights of a third person or unauthorized right use of personal data by a User including without limitation uploading the Contents to other websites.
16.5. The Service Provider”s liability for any breach of this Agreement relating to supply of the Support Services is limited, at the option of the Service Provider, to
(i) re-supply of the relevant Support Services; or
(ii) payment to the Customer of the any amount(s) paid by the Customer specifically for the relevant Support Services.
16.6. The Service Provider and GRAPHISOFT will not be liable for any claim, loss or damage arising from or in connection with the Service, its operation, performance (or non-performance) or claims relating to it.
16.7. The Service Provider”s and Graphisoft’s liability for any other breach of this Agreement or otherwise howsoever shall not exceed the total consideration payable to the Service Provider by Customer for the particular product and/or service in dispute.
17. INDEMNITY
17.1. As a condition of use of the Service, You agree to indemnify Service Provider and GRAPHISOFT, and their directors, officers, employees, agents and suppliers from and against any and all liabilities, expenses (including attorneys” fees) and damages arising out of claims resulting from Your use of the Service, including without limitation any claims alleging facts that if true would constitute a breach by You of these TOS.
18. INTELLECTUAL PROPERTY, TRADEMARK INFORMATION
18.1. The trademarks and other intellectual property owned by Graphisoft and Service Provider and by third parties made available through the Service are protected by applicable rules of laws. To the maximum extent permitted by applicable laws, Service Provider, Graphisoft and other intellectual property owners reserve all rights to their trademark/intellectual property not expressly granted hereunder. If You copy or use all or any portion of the trademarks/intellectual property available through the Service in non-compliance with any of the terms of this TOS, any applicable End User License Agreement or any other terms and conditions of Service Provider or GRAPHISOFT, You are violating trademark or other intellectual property law, and You may be liable to Service Provider, Graphisoft and other intellectual property owners for damages, and You may also be subject to criminal penalties.
18.2. GRAPHISOFT, ARCHICAD, BIMcloud, and BIMx are trademarks of GRAPHISOFT (Záhony u. 7., H-1031 Budapest, Hungary). All rights reserved worldwide. Unless otherwise specified, the following notice applies to all Contents of this Site:
Copyright © 2018 GRAPHISOFT SE. Záhony u. 7., H-1031 Budapest, Hungary. All rights reserved worldwide.
19. PERSONAL INFORMATION
19.1. Each User’s privacy is very important for Service Provider and GRAPHISOFT. Service Provider and GRAPHISOFT designed their Privacy Policies to make important disclosures about how Users can use the Service and how Service Provider and GRAPHISOFT shall collect and can use the User’s content and information.
19.2. Pursuant to the applicable law in force concerning the protection of personal data, by entering into this Agreement You accept that Your personal data will be collected and processed by Service Provider and GRAPHISOFT for the purpose related to the performance of this Agreement, including the fulfillment of Your obligations, such as those related in particular but not limited to Service Provider’s and Graphisoft’s intellectual property rights. You expressly acknowledge that Your personal data will be processed, either manually or with the help of electronic or automated means, in such a way as to minimize, by means of suitable security measures, the risk of unauthorized access or disclosure of Your data. Your personal data will be processed during the term of this Agreement in relation to its purposes, in order to prevent unlicensed use of the Service. For the above purposes Your personal data can be communicated to third parties (service providers, consultants, collaborators), either to other European Union or extra-EU States, pursuant to the scope of this Agreement and any applicable law. Service Provider and GRAPHISOFT reserves the right to communicate Your personal data to the competent legal authority if required to do so to defend its right before civil and criminal courts, or to execute an order of the competent judicial authority. As the Customer of the Service, You have the right to access the personal data processed by Service Provider and GRAPHISOFT, to obtain the updating or rectification of such data. You have also the right to obtain the deletion of any personal data that have been processed unlawfully.
19.3. If applicable, Customer shall ensure that the Customer’s employees who are Users shall give his/her consent required by the applicable rules of law to the collection, processing, transfer and usage of his/her personal information by Service Provider and GRAPHISOFT.
19.4. The rights and obligations related to Service Provider’s and Graphisoft’s data collection, use, transfer, handling, processing are set forth in Graphisoft and Service Provider Privacy Policies constituting an inseparable part of this Agreement.
20. LINKS TO OTHER SERVICES, WEBSITES AND APPS
20.1. The Subscription Portal may enable the Customer to access other applications and websites. Even though these applications and websites are accessible through the Subscription Portal, they are not owned and controlled by the Service Provider. Any links to third party websites are provided for convenience only, and the inclusion of any link does not imply that the Service Provider endorses or verifies such websites. The Service Provider and GRAPHISOFT are not responsible or liable for any loss or damage incurred as a result of the Customer”s access to those applications and websites.
20.2. The Customer”s use of and access to third party applications and websites will be governed by the terms and conditions and privacy policies governing those applications and websites. When accessing a third party website or application, it is recommended that the Customer reads the third party’s terms and conditions and privacy policy.
21. GENERAL
21.1. Any notices to be given under this Agreement must be in English and sent by email to:
– if addressed to the Service Provider, to [email protected]
– if addressed to the Customer, to the email address provided during the account registration process.
21.2. Notices shall be deemed to be received at the time of sending, unless sent outside Normal Business Hours in which case they shall be deemed to be received at 9:00 am (GMT) on the next Business Day.
21.3. The Customer may not assign or transfer its rights under this agreement without the prior express consent of the Service Provider, not to be unreasonably held. The Customer acknowledges that the Service Provider may sub-contract the performance of its obligations under this Agreement without first obtaining Customer consent. By entering into this Agreement You expressly agree and give Your consent that Your Service Provider shall transfer Your billing information (Customer Name, Country, City, Postcode, County, Address, VAT Number) indicated in this Agreement to GRAPHISOFT and during the term of this Agreement GRAPHISOFT may – in compliance with itsPrivacy Policy – use, process and transfer this information for the purposes of fulfilling the Agreement and for the purposes set forth in Graphisoft’s Privacy Policy.
21.4. You accept that Supplier may unilaterally modify any term of this Agreement with or without notice to You. You agree that Supplier shall not be liable to you or anyone else for any negative effect deriving from such modifications.
21.5. It is the intention of both parties to work in good faith toward the accomplishment of the objectives that form the basis of this Agreement.
21.6. If any term of this Agreement is illegal, invalid or unenforceable, the rest of the terms shall remain otherwise in full force apart from such provisions, which shall be deemed deleted.
22. FORCE MAJEURE
22.1. Service Provider and its partners involved in the provision of the Service (in particular but not limited to GRAPHISOFT) are not liable to You or to any other person for failure to perform or any delay in the performance of the Service due to any force majeure event, such as for example, natural disaster, war, riot, strike, explosion, fire, flood, interruption of transportation, acts of war, terrorism, labor disputes.
23. LAW AND ARBITRATION
23.1. The validity, interpretation and performance of the Terms of Service and any dispute connected herewith shall be governed and construed in accordance with the laws of England and Wales.
23.2. If You have any questions regarding these TOS, please address Service Provider at [email protected].