BIMSMITH® LICENSE AGREEMENT
THIS SOFTWARE LICENSE AND USER AGREEMENT ("License") is made as of the Effective Date by and between Anguleris Technologies, LLC, with its principal offices at 68 S. Grove Ave., Elgin, IL 60120 (hereinafter referred to as (“Licensor”) and Licensee.
Licensor is in the business of developing and licensing computer software for 3D Modeling; and has developed certain software entitled, BIMSMITH® which Licensor owns and is solely authorized to license. BIMsmith is a cloud-based configurator for Revit. It is a turnkey system that helps architects and other design professionals customize manufacturer’s products and use them in the design process; and
Licensee desires to obtain from Licensor a non-exclusive license to a version of BIMSMITH® software on Licensor’s BIMsmith website. Licensee understand and agrees that Licensee’s use will be in the user area of BIMsmith’s website provided as a software as a service (“SaaS”) application without customization for Licensee (“BIMsmith Site”) and that such area will be used by architects, design professionals and other users. All users will be required to agree to standard BIMsmith User terms and conditions.
These terms and conditions govern the use of the BIMsmith site by Licensee. By clicking “Agree” below, Licensee agrees to the use of these terms and conditions.
ARTICLE I: SCOPE OF LICENSE
Section 1.02 -- Implementation: Licensee may access, implement and use the BIMsmith Site in accordance with Licensor’s policies and practices, as implemented from time to time. Licensor is not responsible for delays or errors caused or contributed to by Licensee or for errors in content provided by Licensee, nor for any output created by Licensee using the BIMsmith Site or for content on the BIMsmith Site. Licensee acknowledges that content is provided by manufacturers whose products are featured on the site and agrees to look solely to such manufacturer’s with respect to any questions concerning content on the BIMsmith Site.
Section 1.03 – Licensee Restrictions: Except as expressly provided herein, Licensee may not, with respect to the BIMsmith Site, or any part thereof: (1) transmit, distribute, rent, lease, sell, give away, export modify, alter, reverse engineer, decompile, disassemble, translate or create any derivative works thereof; and (2) may not, erase or remove any proprietary or intellectual property notices contained on the BIMsmith Site or any information displayed, transmitted with or printed from the BIMsmith Site and shall use the BIMsmith Site solely as provided in the Documentation and published rules. This Section shall survive termination of this License.
Section 1.04 – Responsibilities: Licensee agrees to be solely responsible for all proper supervision, control and management of its use of the BIMsmith Site including, without limitation: (a) ensuring proper procedures for the security of its data, accuracy of input and output; and (b) maintaining back-up data necessary to replace critical or other data or output in the event of loss or damage to such data or output from any cause.
ARTICLE II: INTELLECTUAL PROPERTY AND PRIVACY
Section 2.01 -- Software Ownership and Title: Title to all intellectual property rights in the BIMsmith Site and related software, including applicable ownership rights to patents, copyrights, trademarks and trade secrets therein shall remain the exclusive property of Licensor. All new legally protectable elements, contributions, collective works thereof or derivative works thereto identified by the Licensee in the BIMsmith Site shall remain vested in the Licensor and this Agreement does not transfer ownership of any of these rights to the Licensee. To the extent that ownership of any portion thereof of the new protectable elements or derivate works does not automatically vest to Licensor by virtue of this Agreement or otherwise, Licensee irrevocably transfers and assigns to Licensor all rights, title and interest in the new protectable elements or derivative works thereof. Any output from the BIMsmith Site created by Licensee remains the property of the Licensee. Licensor shall have the right to use data from the site for marketing and research and development purposes related to the operation of the BIMsmith Site provided only that Licensor shall not identify Licensee without Licensee’s permission and Licensor shall not share Licensee’s confidential business data with any third party without Licensee’s permission.
Section 2.03 -- Notice: Licensee shall not remove any patent notices, trademark notices, copyright notices, trademarks, trade names, service marks or any other proprietary markings on the BIMsmith Site or the Documentation, or any related materials.
Section 2.04 -- Confidentiality: Licensee hereby acknowledges that in accessing, using and implementing the BIMsmith Site, Licensee may learn information which is confidential and proprietary to Licensor. Licensee hereby agrees not to disclose any information identified by Licensor as confidential or proprietary.
Section 2.05 -- Reverse Engineering: Licensee shall not reverse engineer the BIMsmith Site. Licensee shall not disclose or copy the BIMsmith Site or Documentation except as required to use the BIMsmith Site as permitted under this License.
Section 2.06 -- No Residual or Implied Rights: Licensee shall have no residual rights or implied licensing rights with respect to BIMsmith Site or Documentation thereof following any termination or expiration of this Agreement.
Section 2.07 -- Continuation: Article II shall survive termination of this License.
ARTICLE III: LICENSOR WARRANTY
Section 3.01 -- Warranties - THE BIMSMITH SITE IS OFFERED FOR USE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE BIMSMITH SITE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. THIS ARTICLE SHALL SURVIVE TERMINATION OF THIS LICENSE. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR ERRORS OR INACCURACY IN CONTENT ON THE BIMSMITH SITE. LICENSEE’S APPROVAL OF CONTENT AND OUTPUT IS FINAL AND LICENSOR SHALL HAVE NO RESPONSIBILITY TO INSPECT OR CORRECT ANY ERRORS OR INACCURACIES IN CONTENT OR OUTPUT PROVIDED OR CREATED BY LICENSEE. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW WILL THE LICENSOR BE LIABLE FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING ASSERTED ON THE BASIS OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY OR THE USE OR INABILITY TO USE THE BIMSMITH SITE INCLUDING BUT NOT LIMITED TO LOST SALES, LOSS OF DATA OR DATA OR OUTPUT BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE BIMSMITH SITE TO OPERATE WITH ANY OTHER PROGRAMS, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE IV: LICENSEE WARANTY
Section 4.01 – Licensee Warranty: LICENSEE REPRESENTS AND WARRANTS TO LICENSOR THAT: (1) LICENSEE HAS THE RIGHT AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT; (2) LICENSEE SHALL PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT IN A COMMERCIALLY REASONABLE MANNER; (3) CONTENT OR DATA PROVIDED BY LICENSEE DOES NOT AND SHALL NOT CONTAIN ANY HARMFUL OR MALICIOUS CODE, OR INAPPROPRIATE OR INACCURATE CONTENT, MATERIALS, LINKS, ADVERTISING OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY OBSCENE CONTENT, MATERIALS, LINKS, ADVERTISING OR SERVICES, OR THOSE THAT ACTUALLY OR POTENTIALLY VIOLATE ANY APPLICABLE LAW OR REGULATION OR INFRINGE ANY THIRD PARTY PROPRIETARY, OR INTELLECTUAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET RIGHTS, CONTRACT RIGHTS OR TORT RIGHTS, OF ANY PERSON. THIS SECTION SHALL SURVIVE TERMINATION OF THIS LICENSE. LICENSEE IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF DATA IT PROVIDES FOR THE BIMSMITH SITE AND ANY OUTPUT CREATED BY LICENSEE USING THE BIMSMITH SITE.
ARTICLE V: TERMINATION
Section 5.01 –Termination: Licensor has the right to terminate Licensee’s access to the BIMsmith Site and this License at any time.
ARTICLE VI: EXPORT CONTROLS
Section 6.01 -- No Export: Licensee agrees to comply with all export and import laws, regulations and restrictions of the United States and its agencies or authorities, and shall not export, re-export or permit downloading or viewing or SaaS use of any aspect of the BIMsmith Site, including any content, in violation thereof, or without all required approvals, licenses and exemptions. Licensee may not export, re-export or permit downloading or viewing or SaaS use of any aspect of the BIMsmith Site to any person, end-user or entity in, or a national or resident of any country subject to United States export restrictions or embargoes. This Article shall survive termination of this License.
ARTICLE VII: IDEMNIFICATION
Section 7.01 – Indemnification: Licensee agrees to indemnify, hold harmless and defend Licensor and its shareholders, directors, officers, employees, agents and attorneys from and against any action, claim, demand or liability, including reasonable attorney’’s fees and costs, arising from or relating to: (i) any allegation that Licensee’s data, content or output infringes any third party’s intellectual property; and/or (ii) any malicious or harmful code introduced to the BIMsmith Site by Licensee or any content or data supplied by Licensee, and any negligent conduct, intentional misconduct or willful misconduct of Licensee when using the BIMsmith Site; and/or (iii) any claims by third parties related to or arising out of the design, sale, manufacture or use of any of Licensee’s output. This Article shall survive termination of this License.
ARTICLE VIII: MISCELLANEOUS
Section 8.01 -- Assignments: Assignments of rights hereunder without the prior written consent of Licensor shall be void.
Section 8.02 -- Entire Agreement: this License contains the entire understanding of the parties concerning licensing of the BIMsmith Site and supersedes previous oral, verbal and written agreements between the parties concerning licensing of the BIMsmith Site.
Section 8.03 -- Legal Remedies: The parties agree Licensor may suffer irreparable harm if the terms of this License relating to indemnities and intellectual property are breached. Consequently, the parties hereby agree that in such a breach event, Licensor shall be entitled, in addition to such monetary relief, fees and expenses (including without limitation, attorneys’ fees, expert fees, and other professional fees and costs) as may be recoverable by law, but also be entitled to temporary, preliminary and/or permanent injunctive relief as may be necessary to restrain any threatened, continuing, or further breach by the Licensee.
Section 8.05 -- Severability: If a provision of this License is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 8.06 -- Captions: The headings and captions of this License are inserted for reference convenience and do not define, limit or describe the scope or intent of this License or any particular section, paragraph, or provision.
Section 8.08 -- Governing Law: This License shall be governed and construed in accordance with the laws of the United States and the State of Illinois without regard to the conflicts of laws or principles thereof. Any action or suit related to this License shall be brought in the state courts in Cook County, Illinois or federal courts sitting in the Northern District of Illinois, respectively. The parties agree to venue and personal jurisdiction in said state and federal courts.
Section 8.11 -- Waiver: Waiver of breach of this License shall not constitute waiver of any another breach. Failing to enforce a provision of this License shall not constitute a waiver or create an estoppel from enforcing such provision.
Section 8.12 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating any partnership, employment relationship, or agency relationship or any other relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
Section 8.14 -- Dispute Resolution - Meeting: The Parties agree that any and all claims, controversies, breaches or disputes arising from or related to this Agreement, including those pertaining to the formation, construction, performance, applicability, interpretation, or enforceability of this Agreement is subject to a first requirement of a face-to-face meeting prior to filing any lawsuit. If it is impractical to meet due to the distance between the parties, to make every reasonable effort to discuss and communicate with each other via telephone in an attempt to resolve any such dispute to attempt to avoid litigation. The Parties agree that if a settlement is reached during the face-to-face meeting, it shall be reduced to writing and shall be binding upon the parties, their heirs, executors, administrators, successors and assigns.
Section 8.15 -- Dispute Resolution – Mediation: The Parties agree that any and all claims, controversies, breaches or disputes arising from or related to this Agreement, including those pertaining to the formation, construction, performance, applicability, interpretation, or enforceability of this Agreement is subject to a second requirement after a face-to-face meeting to mediate, prior to filing any lawsuit. The mediation shall take place in the County of Cook, State of Illinois. The mediation proceedings will be conducted under the Mediation Procedural Rules of The Illinois Academy of Mediation and Arbitration. The Parties agree that there is no requirement to actually reach a settlement to the dispute in mediation, but agree that if a settlement is reached during mediation it shall be reduced to writing and shall be binding upon the parties, their heirs, executors, administrators, successors and assigns.
Section 8.16 -- Force Majeure: A party shall not be liable for any failure of or delay in the performance of this License for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, military events, labor strikes or labor disputes, embargoes, government orders, unavailability of internet services, any act of third parties, or any other event beyond the control of the affected party. If any Force Majeure event occurs, the affected Party will give prompt notice to the other Party and will use all commercially reasonable efforts to minimize the impact of the event.
Section 8.18 -- Continuation: Article X shall survive termination of this License.
Section: 3 -- Intended use of Personal Data: Use of Licensor’s BIMSMITH Site requires registration with Personal Data, allowing Licensee to visit and have access to the BIMSMITH Site. In these situations, if Licensee chooses to withhold any Personal Data requested by Licensor, it will not be possible for Licensee to gain access to the Licensor s site, or for Licensor to respond to any of Licensee’s queries.
Section 4 – Collection of Personal Data: Licensor may collect and use Personal Data to provide Licensee with access to BIMSMITH Site and other Licensor products or services, to bill Licensee for additional products and services Licensee may request, to market additional products and services which Licensor thinks may be of interest to Licensee, or to communicate with Licensee for other purposes which are evident from the circumstances or about which we inform you when Licensor collects Personal Data from Licensee.
Section: 7 -- Right of access to Personal Information, Correction and Objection: Whenever Licensor processes Personal Data; Licensor takes reasonable steps to ensure that Personal Data is kept accurate and up-to date for the purposes for which it was collected. Licensor will provide Licensee with the ability to object to the processing of Personal Data if such processing is not reasonably required for a legitimate business purpose as described in this policy or Licensor’s compliance with law. In the case of electronic direct marketing, Licensor will provide Licensee with a method to opt out of receiving further marketing materials or with a method to opt in if required by law. If Licensee wishes to contact Licensor regarding Licensor’s use of Licensee Personal Data or object to the processing of Licensee Personal Data, please email Licensor. If Licensee contacts Licensor, please note the name of the website where Licensee provided the information, as well as the specific information Licensee would like Licensor to correct, update or delete plus a proper identification of Licensee. Requests to delete personal data will be subject to any applicable legal and ethical reporting or document filing or retention obligations imposed on Licensor.