END USER LICENSE AGREEMENT
Briab Bimfire Tools™ Version 2020
Briab Brand & Riskingengörerna AB ( CVR. 556630-7657). All Rights Reserved.
Protected by pending Patents in the Sweden. Copyright law and international treaties protect this computer software program. Unauthorized reproduction or distribution of this software, or any portion of it, will be prosecuted to the maximum extent possible under law and may result in civil and criminal penalties.
Important—read carefully prior to using the software: this end-user license agreement (the "EULA") is a legal agreement between you (“you” or "licensee") and Briab Brand & Riskingenjörerna Ab. ("Briab" or “licensor”) for use of the Briab Bimfire Tools™ software application (the "software”) and the related user guides and specifications made available by Briab for only that version of the software licensed by you hereunder (the “documentation”).
By accessing, installing, copying or otherwise using all or any portion of the software, licensee agrees to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or otherwise use the software. You agree that your use of the software represents your acknowledgement that you have read this EULA, understand it, and agree to be bound by its terms.
Briab is not responsible for any third party software, proprietary or otherwise, utilized in connection with the software, and Briab shall have no liability for your use of such third party software.
All intellectual property in this software is owned by Briab or its licensors. The software is licensed, not sold. Briab permits you to use or otherwise benefit from the intellectual property of the software only in accordance with the terms of this EULA. The software may include product authorization or registration technology designed to prevent unauthorized use and copying. This technology may cause your computer to automatically connect to the internet or to prompt you to contact Briab and may prevent uses of the software that are not permitted. Visit briab.bimfire.app for information about installation and registration.
1. Single User License
a. Subject to Licensee’s continuous compliance with this EULA and payment of the applicable license fees (“License Fees”), Briab grants Licensee a limited, non-exclusive, personal, non-sublicensable, non-transferable right and license to download, install and use one (1) copy of the Software (a “Seat”) on one (1) personal computer (a “Device”) for use by one (1) end-user (a “Licensed User”) in accordance with the terms of this EULA.
b. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses of the Software.
c. Licensee may only use the Software in connection with the internal conduct of Licensee’s business.
2. License Restrictions
Except where Briab is required to permit such activity under the terms of an applicable open source license or applicable law, Licensee may not:
a. Use any software, hardware or other services (i) to bypass any of the terms, conditions or restrictions set forth herein or any application technology restrictions; or (ii) to modify the number of Devices, Licensed Users or Seats that access or utilize the Software outside of the validly licensed number of each, including for purposes of "multiplexing," "pooling," or “virtualization” (i.e., the validly licensed Devices, Licensed Users or Seats must equal the number of distinct inputs to the multiplexing or pooling software or hardware "front end"). If the number of Devices or Licensed Users that can connect to an individual Seat exceeds a one-to-one ratio or has the potential to exceed the one-to-one ratio, Licensee shall be in breach of this EULA and required to immediately cease such actions and/or license additional Seats of the Software to maintain the one-to-one ratio. Failure to take corrective action is grounds for immediate termination of this EULA;
b. Modify or create any derivative works based on the Software, including customization, translation, or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing the Software, or the underlying ideas or algorithms of the Software (e.g., in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to the Software), except where such activity is permitted by applicable law;
c. Redistribute, encumber, sell, rent, lease, sublicense, loan, assign, commercialize or otherwise transfer rights to the Software or make any similar commercial use of the Software, except where such activity is permitted by applicable law;
d. Benefit from the Software via a facility management, timesharing, service bureau or other arrangement or allow a third party (including, without limitation, Licensee’s parent, affiliates, subsidiaries, employees or agents) to so benefit;
e. Provide access to the Software with the intention of processing the data of another entity (including, without limitation, Licensee’s parent, affiliates, subsidiaries, employees or agents);
f. Use the Software on Devices that are not under Licensee’s exclusive control;
g. Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software; and
h. Reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the Software; (ii) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any software or files, or parts thereof, included as part of the Software; and
i. Use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
3. Updates
Briab may, in its sole discretion, make bug fixes, updates, patches and/or service packs available to address certain issues or features that may not be working as intended or to add or activate minor enhancements or compatibility (each an “Update”). Updates are made available free of charge and are subject to all of the terms and conditions of this EULA.
4. Upgrades
Briab may, in its sole discretion, offer new versions of the Software that replace the prior version in its entirety and offer significant changes and improvements over the prior version (each an “Upgrade”). Upon release of an Upgrade, Briab’s obligation to support the previous versions may end. Upgrades are not licensed to Licensee in this EULA unless otherwise agreed in writing by Briab. If an Upgrade is licensed by Licensee, the previous version of the Software must be removed from Licensee’s Device and no further use or access is permitted except archival copies in accordance with Section 3 above.
5. Ownership and Reservation of Rights
a. Software. All right, title and interest in and to the Software, including without limitation all copyrights, patents (whether pending or issued), trade secret rights, trademarks and other intellectual property rights, are owned and retained by Briab. The Software and Documentation are protected by patent, copyright and/or other intellectual property laws of Sweden and by international treaty provisions. Except as expressly set forth herein, Licensee’s possession, use or installation of the Software does not grant Licensee any intellectual property rights in the Software and all rights, title, and interest not expressly granted are reserved by Briab. All rights not expressly granted by Briab are hereby reserved. Licensee agrees that it will not take any action to interfere with Briab’s ownership of or rights in the Software.
b. Licensee Content. Title, ownership rights and intellectual property rights in and to any documents, information, materials, and other content created by Licensee (“Licensee Content”) in connection with Licensee’s use of the Software shall be retained by Licensee and may be protected by applicable copyright or other intellectual property laws. Briab receives only such limited license as is necessary to host and access the Licensee Content in order to make the Software and related services available to Licensee.
6. Fees and Payments
a. Purchases from Briab. If purchased directly from Briab, Licensee agrees to pay Briab the Licensee Fees on the date Licensee downloads the Software or the date that the thirty (30) day trial ends, whichever is later. All new or incremental licenses of additional Software are licensed as priced at the time of purchase, not at prices previously paid or advertised.
b. Purchases from an Authorized Reseller. If You purchase the Software through a Briab authorized reseller (a “Reseller”), You agree to pay Reseller such fee as may be published by Reseller or mutually agreed upon between You and Reseller. You further acknowledge and agree that the Reseller has no authority to bind Briab, provide any warranty or other commitment or obligation on behalf of Briab or the Software, or to modify any the terms of this EULA.
c. Enterprise License Fees. Provided you elect to purchase an Enterprise License subscription, you agree to pay the ELS Fee directly to Briab or to the Reseller to which You paid the License Fee, as applicable. Enterprise License subscriptions are provided by Briab.
7. Right to Audit
Briab reserves the right to periodically conduct audits of Licensee’s use and installation records related to the Software to verify compliance with the terms of this EULA (each an “Audit”). Licensee shall be given no less than thirty (30) days prior written notice of Briab’s intent to conduct an Audit. Audits will be conducted during Licensee’s normal business hours and will occur no more than once in any twelve (12) month period. In the event an Audit shows that Licensee is using or accessing Software that is not licensed or is beyond the terms of this EULA, Briab shall have the right to immediately invoice Licensee for the unauthorized use, including applicable late fees and interest at the legally allowable rate, and the reasonable costs of the Audit. If Licensee fails to pay such invoice on Net 30 terms, Briab may terminate this EULA in additional to all other remedies that may be available to it in law or in equity.
8. Limited Warranty and Disclaimer
a. Limited Warranty. Briab represents and warrants that the Software will perform substantially in accordance with the Documentation when used on the recommended operating system and hardware configuration. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Briab and Licensee’s exclusive remedy will be limited to either, at Licensee’s option, replacement of the Software or a refund of the License Fee paid by Licensee.
b. DISCLAIMER. To the maximum extent permitted by applicable law, and except for the Limited Warranty set forth herein, the Software (and accompanying Documentation) is provided on an "as is" and “as available” basis without warranty of any kind, express or implied, whether by statute, common law, usage, industry custom, or otherwise as to any matter, including but not limited to performance, non-infringement of third party rights, integration, conditions of merchantability, title, quiet enjoyment, quiet possession, security, quality or workmanship, fitness for a particular purpose, or a lack of viruses. Some states and jurisdictions do not allow limitations on implied warranties, so the above limitations may not apply to you.
9. Indemnification
The parties hereto agree to defend, indemnify and hold harmless the other party and its directors, officers, and employees (the “Indemnified Party”) from and against all costs, expenses, losses, damages, penalties, taxes, liabilities, judgments, settlements, reasonable attorneys’ fees, claims, demands, actions, suits, proceedings or other causes of action of any nature (individually and collectively referred to herein as “Damages”) arising out of any breach of the terms and conditions of this EULA by the non-Indemnified Party. In addition, Licensee agrees to defend, indemnify and hold harmless Briab and its officers, directors, employees, affiliates and agents from and against any Damages arising out of claims related to
a. Licensee’s use of the Software,
b. Licensee or any of the Licensed User’s violation of this EULA,
c. any infringement or violation by Licensee of any intellectual property or other right of any person or third party, or
d. if the Software is exported from Sweden, export duties or other claims arising from such exportation.
The Indemnified Party agrees to promptly notify the other party in writing of any such claim for Damages or threat thereof, allow the other party sole control over the defense and/or settlement of such claim through counsel of the other party’s choice, and give the other party all reasonably requested information and assistance to enable the defense and/or settlement of the claim.
10. Infringement Indemnification
Subject to the terms and conditions of this Section, Briab agrees to defend, indemnify and hold harmless Licensee against any and all Damages arising out of or relating to a third party claim that the Software violates, misappropriates or infringes upon any issued copyright, trademark, trade secret or other intellectual property right owned by such third party.
a. The indemnification provided in this Section is expressly conditioned upon (i) Licensee giving Briab immediate notice in writing of any such third party claim or threat thereof; (ii) Licensee permitting Briab sole control, through counsel of Briab’s choice, to defend and/or settle the claim; and (iii) Licensee giving Briab all reasonably requested information, assistance and authority, at Briab’s expense, to enable Briab to defend or settle such claim. Licensee may participate in the defense of such claim with counsel of Licensee’s choice and at Licensee’s sole expense.
b. The indemnification provided in this Section will not apply to any claim to the extent such claims arises from or relates to (a) use of the Software not in accordance with the Documentation (b) any modification, alteration or conversion of the Software not created or approved in writing by Briab, (c) any combination or use of the Software with any computer, hardware, software, service or data not approved by Briab where the infringement arises out of such combination or use, (d) Briab’s compliance with specifications, requirements or requests of Licensee, or (e) Licensee’s gross negligence or willful misconduct.
c. If the Software becomes, or Briab reasonably determines that the Software is likely to become subject to a claim of infringement for which Briab must indemnify Licensee as described in this Section 11, Briab may at its option (i) procure for Licensee the right to continue to access and use the Software; (ii) replace or modify the Software so that it becomes non-infringing without causing a material negative effect on the functionality provided by the infringing version; or (iii) if neither (i) or (ii) are viable options, remove the infringing part of the Software and refund Licensee a portion of the Licensee Fee paid which shall be negotiated in good faith with Licensee considering the materiality of the portion of the Software that is removed.
d. This Section 11 states the entire liability and obligation of Briab and the exclusive remedy of Licensee with respect to any claims of infringement relating to or arising out of the Software.
11. Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall Briab or its affiliates, suppliers or resellers be liable to licensee or to any other person or entity for any indirect, special, incidental, or consequential damages of any character whatsoever (including, without limitation, damages for loss of profits, loss of goodwill, loss of confidential or other information, for business interruption, work stoppage, computer failure or malfunction, for personal injury, loss of privacy, for failure to meet any duty including a duty of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use or inability to use the software, or otherwise under or in connection with any provision of this EULA, even in the event of fault, negligence, breach of contract, or breach of warranty by Briab, its resellers or its suppliers, and even if Briab or its suppliers have been advised of the possibility of such damages. In no event will Briab, its resellers or its suppliers be liable for any damages in excess of the licenses fees paid for the software hereunder, if any.
12. Term and Termination.
a. Term. This EULA is effective as of the date the Software is downloaded by Licensee (the “Effective Date”) and shall continue until terminated by Briab or Licensee as provided herein (the “Term”).
b. Termination by Briab. Briab may terminate this EULA upon the occurrence of any of the following: i. Immediately and without notice if Licensee fails to make any payment as required hereunder; ii. At the expiration of a thirty (30) day cure period and upon written notice to the breaching party in the event of a breach of this EULA that is capable of being cured within thirty (30) days; iii. Immediately and without notice if Licensee ceases to do business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, which is not dismissed within sixty (60) days after the initial filing or a receiver is appointed with respect to a substantial portion of its assets.
c. Termination by Licensee. Licensee may terminate this EULA at any time, with or without cause, upon providing Briab with thirty (30) days written notice of termination.
d. Effect of Termination. Upon the termination of this EULA, the license provided herein shall immediately cease and Licensee shall (i) discontinue use of the Software; (ii) unregister the Software from all Devices; and (iii) delete and/or destroy all copies of the Software including all copies or extracts of the Documentation.
e. Survival. The following sections shall survive the termination or expiration of this EULA: Section 2 “License Restrictions”; Section 3 “Archival Copy”; Section 6 “Ownership and Reservation of Rights”; Section 8 “Right to Audit” for a period of three (3) years; Section 9.b. “Disclaimer”; Section 12 “Limitation of Liability”; Section 15 “Confidentiality”; Section 16 “Additional Provisions – Software Features”; Section 17 “Licensed User Data; Consent; Transfer; and Security”; Section 19 “Export Controls”; and Section 20 “General Terms”.
13. Pre-Release Users; Educational Users
a. Pre-release Users. Pre-commercial releases or beta software releases (“Beta Software”) do not represent a final commercial software application and may contain bugs, errors, inconsistencies or other problems that can cause system or other failures and/or data loss. If you elect to participate in Briab’s beta program, your use and license of the Beta Software will be governed by this EULA and a separate beta program agreement and nondisclosure agreement. All rights hereunder to the Beta Software will terminate upon the commercial release of such Beta Software. You expressly acknowledge and agree that, to the extent permitted by applicable law, use of the beta software is at your sole risk and that the beta software is provided “as is” and “as available” with all faults and with no warranty of any kind. Briab hereby disclaims all warranties and conditions with respect to the beta software, express, implied or statutory, including without limitation warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, and non-infringement of third party rights.
b. Educational Users. If You licensed the Software as part of Briab’s academic program, You warrant and represent that You are a current and registered student or faculty member (full-time, part-time or adjunct) with a public or private high school or an accredited college or university. Academic verification is required, and you must submit a valid academic e-mail address. Alumni do not qualify. Limited one (1) Seat per educational end-user.
14. Confidentiality
a. Except as otherwise authorized by the relevant party in writing, Briab and Licensee will keep confidential all non-public information reasonably disclosed by or on behalf of, and belonging to, the other party in connection with the transactions contemplated by this EULA and Licensee’s use of the Software, provided however, Briab is permitted to use and disclose Licensed User Data to the extent permitted by Section 16(e) below.
b. The receiving party will protect the other party’s confidential information with the same degree of care as it uses to protect its own confidential information, and may share the confidential information with its advisors and consultants and authorized affiliates who are bound by confidentiality obligations consistent with the receiving party’s obligations. If the receiving party receives a request pursuant to a court order, governmental body request or other legal process to disclose the other party’s confidential information, the receiving party will promptly notify the other party and provide reasonable assistance to maintain the confidentiality of such information. The receiving party will not be subject to confidentiality obligations for confidential information that (a) at the time of receipt was already known to it without confidentiality obligations; (b) becomes publicly known through no wrongful act of the receiving party; (c) was received from a third party without confidentiality obligations or knowledge that the information was subject to confidentiality obligations; (d) was disclosed to third parties by the other party without confidentiality obligations; (e) is independently developed by the receiving party without use of the confidential information of the other party, or (f) was released pursuant to prior written authorization by the other party.
15. Additional Provisions – Software Features
a. Internet Access. The Software allows Licensee to access the Internet. Briab does not control, endorse or accept responsibility for any online services or websites offered by third parties that Licensee or the Licensed Users may access via the Software. Any transaction between Licensee and a third party in connection with a website or online service, including the delivery of and payment for goods or services and any other terms or conditions, warranties or representations associated with such transactions, are between Licensee and the third party.
b. Third Party Applications. Use of third-party software or applications or the integration of such software or applications with the Software (“Third Party Applications”) may result in the Licensee Content being transferred to a third party. Briab is not responsible for and Licensee agrees to hold Briab harmless for any data or materials (including the Licensee Content) transferred to third parties in connection with your use of Third-Party Applications. Any use of third-party applications is at your own risk and Briab provides no warranty or indemnification related to such use.
c. Open Source Software. The Software may contain certain open source software. The license terms for open source software and information on obtaining access to the source code to which you are entitled under the applicable open source licenses as available to you at briab.bimfire.app. If you have any questions regarding this link or the information regarding open source software, please contact us at info@bimfire.app.
16. Licensed User Data; Consent; Transfer; and Security
a. Definitions. “Personal Information” means any information relating to an identified or identifiable natural person. “Licensed User Data” includes both Personal Information and non-personal information about Licensee and Licensee’s Licensed Users including, without limitation, Licensee’s name, Licensed User names, Licensed User e-mail addresses and Licensee and/or Licensed User IP Addresses.
b. What Information We Collect. Briab collects, transmits, stores and uses Licensed User Data to (i) contact Licensee concerning Licensee’s rights and obligations, the availability of Updates and Upgrades, and the performance of the Software; (ii) respond to Licensee’s inquires and feedback; (iii) verify Licensed Users and Devices and compliance with the terms of this EULA; (iv) meet regulatory requirements; and (v) understand and assist Licensee and the Licensed Users with bugs, error reports, crash logs and other problems discovered with the Software. The Software may automatically connect to Briab’s servers via the internet to communicate with Briab for purposes such as license validation and to check for the availability of Updates and Upgrades. Briab may disclose Licensed User Data in accordance with applicable law.
c. Aggregated Data. Briab and its authorized affiliates use Licensed User Data, specifically excluding Personal Information, in combination with data from other users to analyze, develop, manage and deliver the Software and Upgrades and Updates to the Software as well as to understand feature usage, performance, and other legitimate business purposes related to understanding, developing and providing Briab’s products and services.
d. Reasonable Security Measures. Briab shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Licensed User Data. Briab shall implement processes and maintain procedures designed to comply with applicable privacy laws. If Briab engages a subcontractor or affiliate to facilitate its obligations under the Agreement, Briab shall use commercially reasonable measures to ensure that such subcontractor and/or affiliate implements and complies with reasonable security measures in handling any Licensed User Data.
17. Suggestions
If Licensee provides Briab with any suggested improvements to the Software, then that suggestion is provided as is and unrestricted. No suggestion will be deemed the confidential information of Licensee. Licensee grants Briab a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggestions.
18. General Terms
a. Governing Law and Arbitration. This EULA shall be governed and construed in accordance with the laws of Sweden, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of Sweden. Any controversy or claim, whether in law or in equity, arising out of or relating to this EULA, or the breach thereof, shall be settled by the Arbitration Institute of the Stockholm Chamber of Commerce.
b. Attorneys' Fees. If either party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses. The term “prevailing party” means that party, as plaintiff or defendant, who substantially prevails against the other party. Notwithstanding the foregoing, if a written offer of compromise made by either party is not accepted by the other party within forty-five (45) days after receipt and the party not accepting such offer fails to obtain a more favorable judgment, the non-accepting party shall not be entitled to recover its costs of suit and reasonable attorney’s fees and costs (even if it is the prevailing party) and shall be obligated to pay the costs of suit and reasonable attorney’s fees and costs incurred by the offering party.
c. Severability. If any provision of this EULA is held to be unenforceable or invalid, the enforceability of the remaining provisions shall in no way be affected or impaired thereby but shall remain in full force and effect.
d. Waiver. No failure or delay in enforcing any right, power or privilege granted herein will be deemed a waiver unless made in writing and signed by a duly authorized representative of the party providing the waiver; and no single waiver will be considered a continuing or subsequent waiver.
e. Equitable Relief. Licensee acknowledges and agrees that any breach or alleged breach of this EULA would cause irreparable harm and significant injury to Briab that may be difficult to ascertain and that a remedy at law would be inadequate. Licensee agrees that Briab shall have the right to seek and obtain, without the posting of a bond, immediate injunctive relief to enforce the obligations under this EULA in addition to any other rights and remedies it may have.
f. Controlling Language. This EULA has been prepared in the English language and the English language shall control its interpretation. All notices to be provided by either party hereto shall be in the English language. In the event of any conflict between the English language version and any translation of this EULA that may be provided for convenience only, the English language meaning shall control.
g. Notices. All notices required by this EULA shall be in writing and either delivered and effective (i) personally upon receipt, (ii) by e-mail upon receipt or if sent after 5pm CEST then the next business day, (iii) by a major commercial overnight courier service with tracking capabilities upon receipt, or (iv) by certified mail, return receipt requested, postage prepaid, five (5) days after the post-marked date. Notice to Licensee shall be addressed to the Primary Contact listed by Licensee in Briab Licensing Portal. Notice to Briab shall be addressed to Magnus Ladulåsgatan 65, 118 27 Stockholm Sweden or to info@bimfire.app.
h. No Assignment. This EULA is personal as to Licensee and may not be transferred or assigned, voluntarily, by operation of law or otherwise, without Briab’s express written consent which may be withheld, delayed or conditioned in the sole discretion of Briab. Provided Briab grants such consent, this EULA shall be binding upon the assignee in the same manner that it is binding upon Licensee and Licensee is responsible for informing all Licensed Users and assignee’s of the binding application of this EULA and all provisions contained herein.
i. Entire Agreement. This EULA, including all exhibits and addendums hereto, contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous discussion, understandings, communications, proposals, and agreements, whether written or oral. i. This EULA may not be modified, amended or supplemented except in a writing signed by an authorized representative of Briab except as allowed by Section 18(i)(ii) below. ii. This EULA expressly supersedes and completely replaces any and all prior end user license agreements for the Software. Briab reserves the right to update this EULA. Any updates will be made available at briab.bimfire.app. Briab shall not be bound by or liable to Licensee for any pre-existing or contemporaneous written or oral representations or warranties made by a third party with respect to the Software, including, without limitation, by a Reseller or their respective agents, employees or representatives, nor shall Licensee be deemed a third party beneficiary of any obligations of Briab to any such Reseller. iv. Any terms and conditions contained in Licensee’s purchase order or other administrative document will not be effective as a modification or supplement to this EULA, regardless of whether Briab objects to such form.
Briab Customer Contact.
If you have any questions concerning these terms and conditions, or if you would like to contact Briab for any other reason, please write to: Briab Brand & Riskingenjörerna AB, Magnus Ladulåsgatan 65, 118 27 Stockholm, Sweden. You may also reach us at briab.bimfire.app/support
