Last updated: December, 2017
Welcome to BIMtrace. BIMtrace is a photogrammetric tool to visualize, measure, and document the correspondence between a building model and construction on-site. The website www.bimtrace.com (the “Site”), and the BIMtrace desktop and mobile applications (the “Applications”), the BIMtrace software (the “Software”) and the various other related features, functions, software, applications, websites and networks (collectively, the “Services” and together with the Site, the Applications and the Software, collectively the “BIMtrace Services”) are provided and operated, and are being made available to your organization (the “Organization”) and you and the other users of any of the BIMtrace Services (collectively, “Users”) by Pericept, a division of ClearEdge3D Inc. (“Pericept”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
To access and use the Site, the Applications, the Software and the Services, you must be at least 18 years of age. BY SUBSCRIBING TO ANY SERVICES PLAN, CLICKING THE “I AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING ANY OF THE BIMTRACE SERVICES, YOU REPRESENT THAT:
- YOU SATISFY THE ELIGIBILITY REQUIREMENTS AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE, THE APPLICATIONS, THE SOFTWARE OR THE SERVICES;
- YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PERICEPT; AND
- YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS.
3. License Grant; Unauthorized Use
3.1. License Grant
Subject to your compliance with all the terms and conditions set out in these Terms, Pericept hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license during the term of your Services Plan with Pericept to (a) to install and use the Applications on your computers and mobile and other devices and (b) to access and use the Site, the Software and the Services as contemplated herein, in each case solely for your own internal business purposes and only to the extent and in accordance with these Terms.
You should check for updates to any software that Pericept provides to you in connection with the Applications and the Software from time to time at www.bimtrace.com. Now or in the future you may also be notified of available updates or such software may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.
3.2. Prevention of Unauthorized Use
Pericept reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of any of the BIMtrace Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
4. Service Plans; Support Services; Fees
Pericept offers various service plans that vary depending on the subscription term, the site(s) covered (the “Site Limitations”) and other factors as described in the “Service Plan”. The specific Service Plan shall be set forth in the applicable Quotation form (the “Quotation Form”).
The subscription term of all Service Plans will automatically renew for periods equal to the initial subscription term (and charged at the then-current prices at the time of renewal) unless the subscription is cancelled or a different Service Plan is selected or otherwise provided in the applicable Quotation Form. If the subscription is terminated, it will terminate at the end of the then-current month. There will not be any credits or refunds for amounts accrued or paid prior to such termination for monthly service plans. Amounts accrued or paid prior to such termination for annual service plans may be refunded on a prorated basis based on the duration of service remaining after the month in which the termination became effective, less an early termination fee equal to two months of service.
Pericept may now or in the future also provide additional services, including set-up and training (“Set-up and Training”) and technical support (collectively, the “Support Services”). Any such Support Services shall be set forth in the applicable Quotation Form.
Set-up and Training are separate from the general technical support provided by Pericept and are subject to additional Fees.
Unless otherwise set forth on a Quotation Form, technical support shall be provided to Users via email and telephone between the hours of 9:00 am and 5:00 pm CST on each business day. Pericept shall use commercially reasonable efforts to respond to any request for technical support by the next business day.
Pericept may change, modify, or eliminate any Service Plan or Support Services at any time, with or without notice. You agree that Pericept will bear no liability to you or any third party if Pericept does so.
All fees related to the Service Plan and any Support Services (the “Fees”) and such other terms as may be agreed to by Pericept and you shall also be set forth in the applicable Quotation Form. In the event of a conflict between the provisions of these Terms and the provisions of a Quotation Form, the provisions of the Quotation Form will control.
Pericept will invoice you for Fees for the Service Plan and any Support Services in advance and otherwise in accordance with the terms of the relevant Quotation Form. You shall fully pay all invoiced amounts within thirty (30) days of the invoice date. All payments made will be in United States dollars. If you fail to make any payment when due, Pericept may, at its discretion, assess a late charge at the rate of 1.5% of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
By selecting one of the Service Plans or any Support Services, you agree on behalf of yourself and your Organization to the terms and conditions associated with such Service Plan or Support Services, including the applicable fees, scope, the subscription term and site limitations of such Service Plan. In addition, to the extent that any sales or other similar taxes are payable by Pericept or any unaffiliated third party (e.g., a company that provides credit card processing services) (“Third Party Processors”) in connection with any Service Plan and/or any Support Services, you and your Organization agree to pay to Pericept or any such Third Party Processors the amount of such taxes in addition to any other amounts owing for such Service Plan and/or Support Services.
In making payments, you acknowledge that you are not relying on future availability of any Service Plans or Support Services beyond the current subscription term or current Support Services. If you change your Service Plan, Pericept will charge for the difference between your current Service Plan and your new Service Plan.
If you exceed any Site Limitations in violation of the terms of your Service Plan, then Pericept may bill you and you shall pay Pericept such amounts as determined by Pericept for any such excess sites.
The Fees may be paid by bank transfer, wire or check or such other method as permitted from time to time by Pericept. Payments or payment processing for the Fees may be handled by Pericept or unaffiliated third parties (e.g., companies that provide credit card processing services) (“Third Party Processors”).
Pericept reserves the right to increase any such Fees at any time upon thirty (30) days’ prior written notice posted in advance on any of the BIMtrace Services. Any such increase shall apply in connection with (a) the Service Plans, after the then current subscription term ends or (b) the Support Services, for any new or additional Support Services.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THESE TERMS, THE APPLICABLE QUOTATION FORM OR REQUIRED BY LAW.
You shall be solely responsible and liable for all out of pocket expenses and any other costs (e.g., travel costs, including airfare and hotels) arising from or relating to the Software, the Services, any Support Services and/or this Agreement unless otherwise set forth in the applicable Statement of Work.
5. The Administrator
If you are the person designated as the BIMtrace administrator for your Organization (the “Administrator”), you shall be responsible for (a) authorizing or de-authorizing all Users of the BIMtrace Services, (b) setting the permissions settings for Users, (c) defining the group of Users for the distribution of notes, (d) authorizing and connecting 3rd party cloud services (e.g., Autodesk Glue and Dropbox) and (e) ensuring that the BIMtrace Services are used in accordance with the applicable Services Plan, including the Site Limitations.
The Administrator may edit any information that it or you provided through any of the BIMtrace Services.
6. Additional Policies
When using any of the BIMtrace Services, you will be subject to any additional posted policies, guidelines or rules applicable to the Site, the Applications, the Software and Services and features which may be posted from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
7. Respecting Other People’s Rights
Pericept respects the rights of others and so should you. You therefore may not post or send Content that:
- violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Pericept in its sole discretion;
- is false, misleading, untruthful or inaccurate;
- includes anyone’s identification documents or sensitive financial information
- impersonates any person or entity, including any of Pericept’s employees or representatives; or
- spams or solicits any Users.
8. Account Security
When you access and use any of the BIMtrace Services or any applications, products, services, or information from Pericept, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and mobile devices, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Pericept on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
If you change or deactivate the email that you used to create a BIMtrace account, you or the Administrator must update your account information within 72 hours to prevent us from sending to someone else messages intended for you.
If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any payment information, if applicable), then you shall immediately notify Pericept. You may be liable for the losses incurred by Pericept or others due to any unauthorized use of your account or any of the BIMtrace Services.
9. Modification of these Terms
Pericept reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site, the Applications, the Software or the Services. If Pericept updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the BIMtrace Services after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations (including applicable fees), Pericept will make reasonable efforts to notify you of such change. Pericept may provide notice through a pop-up or banner within any of the BIMtrace Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Pericept may require you to provide consent by accepting the changed Terms. If Pericept requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Pericept, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the BIMtrace Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL BIMTRACE SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
10. Digital Millennium Copyright Act
It is Pericept’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Pericept’s DMCA Notification Guidelines at http://Pericept.com/DMCA/. If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). Pericept reserves the right to terminate without notice any User’s access to the Software and the Services if that User is determined by Pericept to be a “repeat infringer.” In addition, Pericept accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
11. License Grant for Content; Representations and Warranties
11.1. Limited License Grant to Pericept
The BIMtrace Services may now or in the future permit the submission and/or posting or linking of pictures, audio and video recordings, text, data, information and other input or any other content linked, posted, and/or submitted by you or other Users, in each case whether or not made available to other Users (“Content”). By uploading, providing, posting, distributing or disseminating any Content to or through any of the BIMtrace Services, you hereby grant to Pericept a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit your Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the operation, maintenance and support of the Site, the Applications, the Software and the Services.
11.2. Content Use by Others
You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and any of the BIMtrace Services.
11.3. Content and Confidential Information
You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content and the consequences of posting or publishing any Content. By uploading and publishing your Content, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Pericept and the Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 11 and in the manner contemplated by Pericept and these Terms; (2) your Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (3) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the BIMtrace Services. Violators of these third-party rights may be subject to criminal and civil liability. Pericept reserves all rights and remedies against any Users who violate these Terms.
11.4. Content Disclaimer
You understand that when using any of the BIMtrace Services you may be exposed to Content or other materials from a variety of sources, and that Pericept is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Pericept with respect thereto. Pericept does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and Pericept expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, Pericept may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, Pericept does not permit copyright infringing activities on or through any of the BIMtrace Services.
11.5. Confidential information
No information (other than personal information) provided by you to Pericept or in connection with any of the BIMtrace Services shall be considered confidential information unless otherwise agreed in advance pursuant to a separate non-disclosure agreement.
12. Prohibited Conduct
BY USING ANY OF THE BIMTRACE SERVICES YOU AGREE NOT TO:
- Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of any of the BIMtrace Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
- Use any of the BIMtrace Services for the benefit of anyone other than your Organization, you or your clients and customers except in accordance with these Terms and the applicable Service Plan, including selling, reselling, distributing, hosting, leasing, renting, licensing or sublicensing, in whole or in part, any of the BIMtrace Services, or using the Software or the Services for hosting or time sharing services, or as part of a service bureau or outsourcing offering;
- Provide any services to any third party using any of the BIMtrace Services except in accordance with these Terms and the applicable Service Plan;
- Prepare any derivative work of any of the BIMtrace Services, or any other program based upon any of the BIMtrace Services;
- Reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any of the BIMtrace Services or any part thereof;
- Copy, disclose, or distribute any data available on any of the BIMtrace Services in any medium, including without limitation, by any automated or non-automated “scraping;”
- Interfere with, circumvent or disable any security or other technological features or measures of any of the BIMtrace Services or attempt to gain unauthorized access to any of the BIMtrace Services or its related systems or networks;
- Make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users of any of the BIMtrace Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
- Use bots or other automated methods to: access any of the BIMtrace Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through any of the BIMtrace Services; or
- Use any of the BIMtrace Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment.
13. Third Party Sites
The BIMtrace Services may include links or references to other web sites or services (“Third Party Sites”) solely as a convenience to Users. Pericept does not endorse any such Third Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the BIMtrace Services are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.
14. Mobile and Data Charges
You are responsible for any mobile and data charges that you may incur for using any of the BIMtrace Services, including text-messaging charges. If you’re unsure what those charges may be, you should ask your service provider before using the Software or the Services.
You agree that Pericept, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Software or the Services or any account (or any part thereof) you may have with Pericept and remove and discard all or any part of your account, user profile, and any Content, at any time. Pericept may also in its sole discretion and at any time discontinue providing access to the Software or the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Software or the Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Pericept will not be liable to you or any third party for any such termination. Pericept reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Pericept to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Pericept may have at law or in equity. As discussed herein, Pericept does not permit copyright infringing activities on the Site, the Applications, the Software or the Services, and shall be permitted to terminate access to any of the BIMtrace Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD PERICEPT HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY PERICEPT DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER PERICEPT OR LAW ENFORCEMENT AUTHORITIES.
Your only remedy with respect to any dissatisfaction with (i) the Site, the Applications, the Software or the Services, (ii) any term of these Terms, (iii) any policy or practice of Pericept in operating the Site, the Applications, the Software or the Services, or (iv) any Content transmitted through any of these BIMtrace Services, is to terminate your account and your use of all of the BIMtrace Services. You may terminate your use of the BIMtrace Services and your account at any time. After such termination, you must refrain from use of the BIMtrace Services until authorized by Pericept.
16. Ownership; Proprietary Rights
The Site, the Applications, the Software and the Services are owned and operated by Pericept. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of these BIMtrace Services provided by Pericept (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that are provided and owned by Users, all Materials contained on any of the BIMtrace Services are the property of Pericept or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Pericept or its affiliates and/or third-party licensors. Except as expressly authorized by Pericept, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Pericept reserves all rights not expressly granted in these Terms.
Pericept shall own and have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to any BIMtrace Services.
You agree to indemnify, save, and hold Pericept, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, the Applications, the Software or the Services, any of the Content, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Pericept reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Pericept, and you agree to cooperate with Pericept’s defense of these claims. Pericept will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
18. No Warranties; Disclaimers
18.1. No Warranties
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PERICEPT AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “PERICEPT PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SITE, THE APPLICATIONS, THE SOFTWARE AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PERICEPT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SITE, THE APPLICATIONS, THE SAAS APPLICATION AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PERICEPT PARTIES OR THROUGH THE SITE, THE APPLICATIONS, THE SOFTWARE OR THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
18.2. “As Is” and “As Available” and “With All Faults”
YOU EXPRESSLY AGREE THAT THE USE OF ANY OF THE BIMTRACE SERVICES AND ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH ANY OF THE BIMTRACE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
18.3. Platform Operation and Content
THE PERICEPT PARTIES DO NOT WARRANT THAT THE DATA, ASSESSMENTS, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH ANY OF THE BIMTRACE SERVICES, OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY PERICEPT, THE PERICEPT PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY OF THE BIMTRACE SERVICES OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT THE CORRECTNESS, ACCURACY AND RELIABILITY OF ANY MEASUREMENT TOOL DEPENDS ON USE OF IT IN ACCORDANCE WITH ALL DIRECTIONS AND SPECIFICATIONS, THE CONDITION OF THE SITE, THE HARDWARE AND OTHER FACTORS NOT DIRECTLY TIED TO THE BIMVIP SERVICES. ACCORDINGLY, YOU SHOULD CONFIRM AND CORROBORATE ALL MEASUREMENTS RESULTING FROM USE OF THE BIMTRACE SERVICES.
18.5. Harm to Your Computer
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH ANY OF THE BIMTRACE SERVICES OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
19. Limitation of Liability and Damages
19.1. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE PERICEPT PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, ASSESSMENTS, RESULTS OR CONTENT ON THE SITE, THE APPLICATIONS, THE SOFTWARE OR THE SERVICES OR ANY THIRD PARTY SITES, OR ANY OTHER INTERACTIONS WITH PERICEPT, EVEN IF PERICEPT OR A PERICEPT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, PERICEPT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
19.2. Limitation of Damages
IN NO EVENT WILL THE PERICEPT PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE, THE APPLICATIONS, THE SOFTWARE OR THE SERVICES OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU OR YOUR ORGANIZATION, IF ANY, TO PERICEPT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR TEN DOLLARS, WHICHEVER IS GREATER.
19.3. Release for Disputes Between Users
If you have a dispute with any other Users or other third parties, you release Pericept and the other Pericept Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
19.4. Third Party Sites
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN PERICEPT AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE BIMTRACE SERVICES OR RECEIVED THROUGH ANY THIRD PARTY SITES.
19.5. Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT PERICEPT HAS OFFERED THE BIMTRACE SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PERICEPT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PERICEPT. PERICEPT WOULD NOT BE ABLE TO PROVIDE ANY OF THE BIMTRACE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
19.6. Limitations by Applicable Law
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
20. United States Export Controls
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the BIMtrace Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.
Pericept may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the BIMtrace Services. Notice will be deemed given twenty-four hours after the email is sent, unless Pericept is notified that the email address is invalid. Alternatively, Pericept may give you legal notice by mail to a postal address, if provided by you through any of the BIMtrace Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on any of the BIMtrace Services is deemed given 30 days following the initial posting.
The failure of Pericept to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Pericept.
21.3. Dispute Resolution
If a dispute arises between you and Pericept, the goal is to provide you with a neutral and cost effective methods of resolving the dispute quickly. Accordingly, you and Pericept agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Site, the Applications, the Software or the Services (a “Claim”) will be resolved in accordance with this Section or as Pericept and you otherwise agree in writing. Before resorting to these dispute methods, Pericept strongly encourages you to first contact Pericept directly to seek a resolution.
21.3(a). Choice of Law
These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE BIMTRACE SERVICES.
21.3(b). Arbitration and Class Action Waiver
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND PERICEPT (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE BIMTRACE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND PERICEPT HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND PERICEPTWOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You may bring claims only on your own behalf.
Neither you nor Pericept will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST PERICEPT INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Pericept is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Pericept or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
21.3(b)ii. Judicial Forum for Disputes
In the event that the agreement to arbitrate under Section 21.3(b) is found not to apply to you or your claim, you and Pericept agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts of Travis County, TX. Both you and Pericept irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Pericept may bring a claim for equitable relief in any court with proper jurisdiction.
This arbitration agreement will survive the termination of your use of any of the BIMtrace Services or your relationship with Pericept.
21.3(c). Improperly Filed Claims
All claims you bring against Pericept must be resolved in accordance with this Section 21.3. All claims filed or brought contrary to this Section 21.3 shall be considered improperly filed. Should you file a claim contrary to this Section 21.3, Pericept may recover attorneys’ fees and costs up to $15,000, provided that Pericept has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
21.3(d). Prevailing Party
21.3(e). Limitation on Time to File Claims
If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Pericept without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Upon termination of these Terms, your use of the Site, the Applications, the Software or the Services or your relationship with Pericept, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, and 8 – 21.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
21.8. Entire Agreement
21.9. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
21.10. Geographic restrictions
Pericept is based in the state of Texas in the United States. Pericept makes no claims that any of the BIMtrace Services or any of the content is accessible or appropriate outside of the United States. Access to the Site, the Applications, the Software and the Services may not be legal by certain persons or in certain countries. If you access any of these BIMtrace Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Pericept with respect thereto.
The Site, the Applications, the Software and the Services are offered by Pericept located at: 7960 Donegan Drive, Suite 223, Manassas, Virginia, 20110 and email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
© 2017 Pericept, a division of ClearEdge3D Inc.