Legal

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 1.01 -- Grant of License: Licensor hereby grants Licensee a non-exclusive, nontransferable non-sublicensable license to use the BIMsmith software via the BIMsmith Site solely for its intended purpose to create custom assemblies using manufacturer products for Revit and to access and download authorized product information for use in Licensee’s design process. The Licensee may not sub-license its rights to any third party without written permission of the Licensor. Licensee grants Licensor a non-exclusive, non-transferable, non-sublicensable license to use Licensee’s data, for the purpose of implementing the BIMsmith Site and related services, and in accordance with BIMsmith’s Privacy Policy.

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’s use of the Site, errors in data used by Licensee or for content on the BIMsmith Site or any business decision made by Licensee after, based on or in conjunction with using the Site.

ARTICLE I: SCOPE OF LICENSE

Section 1.01 -- Grant of License: Licensor hereby grants Licensee a non-exclusive, nontransferable non-sublicensable license to use the BIMsmith software via the BIMsmith Site. The Licensee may not sub-license its rights to any third party without written permission of the Licensor. Licensee grants Licensor a non-exclusive, non-transferable, non-sublicensable license to use Licensee’s data, for the purpose of implementing the BIMsmith Site and related services, and in accordance with BIMsmith’s Privacy Policy.

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. All data of Licensee and 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, including marketing to Licensee, provided that Licensor shall not identify Licensee without Licensee’s permission and Licensor shall not share Licensee’s confidential or identifiable business data with any third party without Licensee’s permission.

Section 2.02 – Privacy Policy: All use of the BIMsmith Site is subject to Licensor’s Privacy Policy, as it is amended from time to time. Licensor’s Privacy Policy is available for review on the BIMsmith Site and is hereby incorporated by reference. By clicking on the “Agree” button below, Licensee agrees to the terms of the Privacy Policy.

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 or any of its content or underlying software or other intellectual property. Licensee shall not disclose or copy the BIMsmith Site, any of its content 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, WITHOUT LIMITATION, 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: INDEMNIFICATION

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 attorneys’ 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

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 8.04 -- Amendments and Modifications: Licensor may post modifications to this License Agreement and its Privacy Policy on the BIMsmith Site. Licensee may terminate this License Agreement and receive a refund of unused License Fee amounts if it notifies Licensor within thirty (30) days after such posting that it objects to the revised terms. Continuation of use of the BIMsmith Site without termination shall be deemed to be acceptance of any revisions.

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. Such meeting shall take place at Licensor’s place of business in Cook County, Illinois. If it is impractical to meet due to the distance between the parties, the Parties agree 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, provided that either party may insist on a face to face meeting. 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 of 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. The parties shall share equally in the cost of the mediator and the venue. If the parties cannot agree on a mediator within sixty (60) days, each party shall select a mediator representative and the two mediator representative shall choose the mediator.

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.