Terms of Service
1. ACCEPTANCE OF BIM HOLOVIEW TERMS AND CONDITIONS
These terms and conditions ("Terms") govern your access to the information contained on the BIM Holoview website (the “Website”), use of the BIM Holoview application (the “Application”), and the file conversion and storage services for Building Information Model files and associated metadata (User Content), offered by BIM Holoview (the "Service").
“BIM Holoview”, “we”, “us”, “our”, and similar means BIM Holoview Ltd, the Licensor, as the context requires.
“You” or “your” means you, the person who has downloaded the Application and is using or uses the Service and is the Licensee under these Terms, or the employer or other entity on whose behalf you are acting.
“User Content” means the Building Information Management files and associated metadata that you upload by using the Service.
a) In order to use the Website, Application and Services, you are required to accept and to agree to be bound by these Terms.
b) We reserve the right to change, modify, or update the Application, Website and Service at any time, to impose additional restrictions or limitations on the Service (including, without limitation, the maximum period of time files will be retained by the Service, the maximum upload file size, the maximum number of files that can be uploaded per account type), or to change, modify or update the fees charged for all or a portion of the Service. You agree that BIM Holoview has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. BIM Holoview may decide what features to include in the Application and Service and whether to make them optional or mandatory. You further acknowledge that BIM Holoview reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
c) We also reserve the right to change, modify or update the Terms at any time. If we revise the Terms, we will post the revised Terms on our Website, and you consent to receiving notice of any changes through such posting. If required by law, BIM Holoview will also provide you notice of changes as provided in Section 18. If you do not agree to the revisions, you must cease to use the Application and Service. Your continued use of the Application or use of the Service after the posting of the revised Terms means that you have accepted the new Terms.
2. ELIGIBILITY AND AUTHORITY
a) If you are signing up for the Service on behalf of a company, you represent that you are duly authorized to represent such company and accept the Terms on behalf of such company. If you are entering into these Terms on behalf of your company, the terms "you" and "your" in these Terms mean your company and all of its employees. If you are entering into these Terms on your own behalf, you agree that you are personally bound by these Terms. In such cases, the terms "you" and "your" mean you.
a) Subject to your compliance with these Terms and with the payment requirements for the Service, BIM Holoview Limited grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferable license to use the Application and Service, solely in accordance with the terms and conditions of these Terms. You may not install or use the Application or Service for any other purpose without BIM Holoview’s prior written consent.
b) You acknowledge that the Application, the Website and the Service are protected by copyrights, trademark, international treaties, and/or other proprietary rights and laws of New Zealand and other countries and that all ownership and intellectual property rights in the Application, Website and Service features and functionality, including without limitation all BIM Holoview, service marks, logos, trade dress, domain names and the like (“BIM Holoview Marks”), are and will remain the exclusive property of Red Crater Global Ltd and its licensors. Except as expressly provided herein, these Terms grant you no right, title, license, or interest in any intellectual property owned or licensed by Red Crater Global Ltd, including (but not limited to) the Application, the Service or the BIM Holoview Marks. BIM Holoview Marks may not be used in connection with any product or service without the prior written consent of Red Crater Global Ltd.
c) You will not sell, transfer, assign, rent, lease, or sublicense BIM Holoview’s code, the Application, or the Service to anyone.
4. SOFTWARE USE AND SURROUNDINGS
a) You understand and agree that the Application and Service have certain limitations in regard to the size of the model which can be uploaded and the precision and accuracy of the device. We are not liable for any loses or damages which result from the limitations of the Service or devices using the Application. The Application and Service are intended only to assist users with the design, analysis, simulation, estimation, testing and/or other activities and is not a substitute for user’s own independent design, analysis, simulation, estimation, testing, and/or other activities. We are not liable in any manner whatsoever for the results obtained through use of the Application and Service.
b) When using the Application always be aware of your surroundings and adhere to site safety procedures. Virtual and augmented reality imply certain risks especially when used on construction sites. You hereby agree and understand that BIM Holoview is not liable for any injury or damage that occurs while you are using the Application.
5. FREE TRIALS
a) In its sole discretion, BIM Holoview shall determine whether you are eligible for a free trial subscription to the Service.
b) BIM Holoview reserves the right to limit the number of free trials, the number or size of files uploaded per user or per account, and take actions to prevent abuse.
c) During the free trial, you are authorized to access and use the Application and Service solely to the extent allowed by BIM Holoview.
d) BIM Holoview will maintain storage of uploaded files only during the trial period. At the end of the trial period if the user becomes a subscriber of the BIM Holoview Service the files will be retained under that user’s record. At the end of the trial if the user does not become a subscriber the files will be deleted unless otherwise agreed in advance with BIM Holoview.
e) BIM Holoview is not obligated in any way to provide customer support or technical assistance to you during your free trial.
f) BIM Holoview may change the conditions of the free trial or discontinue it entirely at any time without notice.
g) You must agree to these Terms in order to be eligible for a free trial.
6. SUBSCRIPTION PRICES AND FEES
a) To the extent the Services or any portion thereof are made available for any fee, you agree to pay all applicable fees (including any minimum subscription fees) as set forth in the pricing section of our Website. We may increase or add new fees for any existing Service or Service features by giving you notice. All fees payable by you are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) (“Additional Charges”), and you agree to bear and be responsible for the payment of all such Additional Charges, excluding taxes based upon BIM Holoview’s net income.
b) We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required.
c) Should you have any dispute as to fees associated with your account, please contact us at firstname.lastname@example.org within 30 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
d) BIM Holoview subscriptions auto-renew. If you want to cancel your renewal you must contact us on email@example.com seven business days prior to your subscription renewal date. If you cancel your subscription, you will not receive a refund for any service already paid for.
e) BIM Holoview reserves the right to identify your country of domicile and operation and charges fees in the appropriate currency.
7. PROHIBITED USE AND CONTENT
a) You are solely responsible for all User Content and may not use the Website, Application or Service in a manner that promotes, encourages or facilitates any illegal activity, violates the law or violates the rights of any third party (including, without limitation, intellectual property rights).
a) Disclaimer. You understand that the operation of the Website and Service may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to BIM Holoview’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Website and Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your content. BIM Holoview will have no liability for any unauthorized access or use of any content, or any corruption, deletion, destruction or loss of any content. You further acknowledge and agree that BIM Holoview may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of BIM Holoview, its users and the public.
b) In addition to our rights to terminate or suspend Services to you as described in Section 11 below, you acknowledge that: (i) your access to and use of the Website and Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Website and Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Website and Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions").
9. USER CONTENT
a) Our Service allows you to upload, convert, store and privately download Building Information Models and related metadata ("User Content"). You are responsible for the User Content that you post to the Service, including its legality, reliability, and appropriateness.
b) By posting User Content to the Service, you grant us the right and license to use, modify, process, display privately such User Content on and through the Service. You retain any and all of your rights to any User Content you submit, post and store on or through the Service and you are responsible for protecting those rights.
10. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (i) the User Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these Terms, and (ii) the posting of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.
(a) You may terminate the Service at any time, for any or no reason, by emailing firstname.lastname@example.org to unsubscribe from the Service.
(b) We reserve the right to suspend or terminate your right and license to access or use any or all of the Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service) at any time, for any or no reason by providing you thirty (30) days' advance notice in accordance with the notice provisions set forth in Section 18 below. If BIM Holoview determines that providing advance notice would negatively impact BIM Holoview’s ability to provide Services, BIM Holoview may suspend your account (and, accordingly, cease providing all Services to you), with no notice.
(c) In addition, we may suspend your right and license to access and use the Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service), for cause effective as set forth below:
Immediately upon notice if: (i) BIM Holoview determines that your use of the Application or Service is harmful to or inconsistent with BIM Holoview reputation and goodwill, (ii) we have reason to believe that you have violated any provision of Section 9, (iii) there is an unusual spike or increase in your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iv) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (i) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
Immediately and without notice if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism.
Five (5) days following our provision of notice to you if you breach any other provision of these Terms and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
d) Upon our suspension of your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the Services shall be terminated during the period of the suspension.
e) Upon any termination of these Terms or your access to the Service, for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all rights and licenses granted by BIM Holoview to you herein shall terminate, (iii) you shall immediately remove the Application from all devices and copies on computers, hard drives, networks, and other storage media, (iv) all of your User Content on the Service (if any) may be permanently deleted by BIM Holoview. Notwithstanding anything to the contrary in these Terms, the following provisions shall survive and remain in full force and effect following any termination of the parties' obligations under these Terms: Sections 10, 13, 14, 15, 16, 17 and 20.
a) When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your account on our Service.
b) You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.
c) You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
d) You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
13. NO BIM HOLOVIEW WARRANTIES
BIM HOLOVIEW DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION OR THE SERVICE COMPLIES WITH ANY LEGAL REQUIREMENTS, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS (INCLUDING WITHOUT LIMITATION SERVICE SUSPENSIONS), OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE APPLICATION AND THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND BIM HOLOVIEW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF THE APPLICATION AND THE SERVICE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OR CORRUPTION OF DATA.
15. LIMITATION OF LIABILITY
BIM HOLOVIEW SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) (i) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE APPLICATIONN OR THE SERVICE, ANY SERVICE SUSPENSION, OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT BIM HOLOVIEW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR ANY AMOUNT IN EXCESS OF $100.00 OR, IF GREATER, THE FEES PAID BY YOU TO BIM HOLOVIEW IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTION 14 AND THIS SECTION 15 MAY NOT APPLY TO YOU.
16. INDEMNITY AND WAIVER
a) You agree to indemnify, defend, and hold BIM Holoview and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any claim, demand or allegation made by any third party, and all related losses, damages, liabilities, costs and expenses (including attorneys' fees), that it is any way related to:
i) your use of the Application or the Service;
ii) any claims for copyright infringement, defamation, invasion of privacy or right of publicity arising out of or in connection with any unauthorized use of the Service; and
iii) your breach of any representation, warranty or covenant included in these Terms.
b) The foregoing indemnity provision shall be in addition to and not in lieu of any other indemnification obligations set forth in these Terms.
17. GENERAL INFORMATION
These Terms govern your use of the the Application and the Service and constitute the entire agreement between you and BIM Holoview regarding the subject matter hereof. These Terms supersede any prior agreements between you and BIM Holoview relating to your use of the Application and the Service (including, but not limited to, any prior versions of these Terms). The failure of BIM Holoview to exercise or enforce any right or provision of these Terms does not constitute a waiver of that right or provision, and a waiver of any default is not a waiver of any other default. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the provision shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties' original intentions as reflected in the provision, and so that the other provisions of the Terms remain in full force and effect. All headings in the Terms are for convenience only and have no legal or contractual effect. The Terms are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without BIM Holoview’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. BIM Holoview expressly reserves and shall have the right to assign the Terms and to delegate any of its obligations hereunder.
We may send you any notices to the email address you provided when you registered or through any other reasonable means. Any notices to BIM Holoview must be sent to BIM Holoview Ltd, 236 Lee Martin Rd, RD1, Cambridge 3493 New Zealand via first class or air mail or overnight courier and are deemed given upon receipt.
19. INFRINGEMENT OF COPYRIGHT
a) Copyright owners who believe that material appearing on the Internet infringes their rights under N.Z. copyright law may notify BIM Holoview. BIM Holoview will promptly process and investigate notices of alleged infringement and will take appropriate actions under the applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to BIM Holoview at email@example.com
b) Notice: To be effective, the notification must be in writing and contain the following information:
i) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; and
ii) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content.
c) Repeat Infringer Policy: BIM Holoview has adopted a policy of terminating, in appropriate circumstances and at BIM Holoviews's sole discretion, the access to the Service of users who are deemed to be repeat infringers. BIM Holoview may also at its sole discretion limit access to the Service and/or terminate the access of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
d) Counter-Notice: If you believe that the relevant content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a written counter-notice containing the following information to BIM Holoview:
20. GOVERNING LAW
a) This Agreement is governed by the laws of New Zealand and you hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
21. FINAL PROVISIONS
a) If any part of these Terms is found to be invalid, illegal or unenforceable in any respect, it will not affect the validity or enforceability of the remainder of the Terms. The section titles in the Terms are for convenience only and have no legal or contractual effect. Any failure to exercise or enforce any right or the provision of this agreement shall not constitute a waiver of such right or provision. Nothing contained in these Terms will be construed to create the relationship of employer and employee, principal and agent, or any other fiduciary relationship.
b) These Terms made be available on multiple languages, however English version will be considered as the authentic and official version.
Last Updated on 4 August 2017.