V1 (02/Jan/2019)

PLEASE READ THESE TERMS OF SERVICE (HEREINAFTER REFERRED TO AS “TOS” OR “AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT YOU, IN REPRESENTATION OF THE CUSTOMER (DEFINED BELOW), INDICATE THE CUSTOMER’S ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF SERVICE IN RELATION TO THE ARCHICAD (R) SUBSCRIPTION FOR YOURSELF, YOUR EMPLOYER (IF ANY) AND ANY AUTHORIZED USERS WHETHER OR NOT EACH SUCH AUTHORIZED USER INDICATES HIS/HER INDIVIDUAL ACCEPTANCE.

1. DEFINITIONS

Unless otherwise defined in this Agreement the following terms shall bear the meaning defined herein below:

2. SUBJECT OF THESE TERMS OF SERVICE

2.1 This TOS is between SIMULACIÓN Y MODELADO DE INFORMACIÓN PARA LA EDIFICACIÓN S.L. with its registered office at C/ Almogavers, 165, 08018, Barcelona, Spain (the "Supplier") and you, the person or organization named in the ARCHICAD (R) Subscription sign up process ("You" or the "Customer" or “Company”).

2.2 This TOS applies to the provision by Supplier of the ARCHICAD software under the ARCHICAD (R) Subscription (“Service”) and the related Support Services to you. By signing up to an ARCHICAD (R) Subscription, you accept and agree to be bound by this Agreement, and you confirm that you have authority to bind any business on whose behalf you signed up to the ARCHICAD (R) Subscription. If you do not accept the terms of this Agreement, you should not sign up to an ARCHICAD (R) Subscription.

2.3 The ARCHICAD software is owned and licensed to you by GRAPHISOFT. Your use of the ARCHICAD software is governed by the GRAPHISOFT SOFTWARE LICENSE AGREEMENT (hereinafter also referred to as the "EULA") and this Agreement, both of which you are required to accept as part of the ARCHICAD (R) Subscription and before you may use the ARCHICAD software.

2.4 Customer expressly agrees that neither GRAPHISOFT nor Supplier shall be liable for any unavailability or malfunctioning of the Customer Account Portal and in particular for any delay in processing orders.

3. TERM OF THE AGREEMENT

The term of the ARCHICAD (R) Subscription (“Term”) is a one month-period (in case of monthly subscription) or a one year-period (in case of annual subscription) starting from the date of license processing after the Fees charged and invoiced to You in relation to this TOS. In case of existing ARCHICAD (R) Subscription the Term maybe shorter since the billing dates are harmonized to the first Term. ARCHICAD (R) Subscription automatically renews for the upcoming renewal Term subject to timely payment of the Fees until terminated by either party in accordance with clauses 10.1 to 10.5. Parties expressly agree that any additional Subscriptions purchased by the Customer shall be governed by this Agreement without further express acceptance thereof.

4. USE OF THE ARCHICAD SOFTWARE

The Customer's access to and use of ARCHICAD under ARCHICAD (R) Subscription is subject to and governed by:
(a) the GRAPHISOFT SOFTWARE LICENSE AGREEMENT (EULA) ; and
(b) this Agreement.

5. DELIVERY 

ARCHICAD (R) Subscription is delivered in an electronic shipment only and on software protection keys only. 

6. SUPPORT SERVICES

The Supplier will provide the Customer with the ARCHIPLUS Premium Membership while the Customer maintains its ARCHICAD (R) Subscription:
6.1  Free & unlimited access to GRAPHISOFT BIM Classes available at EDUBIM platform; and

6.2 Free Software Upgrade; 

6.3 Priority Technical Support during Normal Business Hours; and

6.4 Free attendance at an annual upgrade training workshop and

6.5 replacement by GRAPHISOFT of stolen or damaged ARCHICAD software protection key upon production of a satisfactory police report and in accordance with GRAPHISOFT's applicable terms and conditions; and

6.6 BIM Mentor as a supportive consultant for advise in relation to ARCHICAD BIM projects workflows 

7. SUPPORT AVAILABILITY

7.1 The Supplier shall provide the Support Services only during Normal Business Hours.

7.2 If the Customer requests the Supplier to provide on-site support, the Supplier will use reasonable endeavors to do so and will charge an additional charge for providing such services and reasonable travel costs in accordance with the Supplier's standard rates from time to time.

7.3 The Supplier does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside Normal Business Hours or that it can provide on-site Support Services outside Normal Business Hours.

8. FEES

8.1 The Customer shall pay the Fees to the Supplier on a monthly/yearly non-refundable basis in advance of each month/year it wishes to maintain an ARCHICAD (R) Subscription to use ARCHICAD and receive Premium Support Services. The Fees shall be charged to the Customer's credit card on the Billing Date of each term. If payment cannot be taken on the Billing Date, the Supplier will attempt to take payment again three (2) days later. If payment can still not be taken, the Supplier will cancel this Agreement (and the Customer's ARCHICAD (R) Subscription) on notice to the Customer and the active status of the Service shall be changed automatically to cancelled status 

8.2 Fees indicated on the Customer Account Portal exclude taxes which will be automatically added by the shopping cart at the applicable current rates.

8.3 Fees are subject to change at any time by Supplier; however, the Supplier will give the Customer 30 days' advance notice of any fee changes by email communication. The Supplier will not be liable to the Customer or any third party for any changes to Fees.

9. INTELLECTUAL PROPERTY, LICENSING AND DATA

9.1 The Customer acknowledges that all intellectual property rights (including copyright, database, trade mark, design, patent, semiconductor or circuit layout rights and rights over confidential information, trade secrets and know how) in the ARCHICAD software or any other goods and services provided by the Supplier to the Customer belongs to Supplier, GRAPHISOFT, and/or other licensors.

9.2 The Supplier, GRAPHISOFT and/or their licensors or suppliers own all intellectual property rights existing in ARCHICAD, including all of the content of ARCHICAD (such as text, graphics, logos, icons and sound recordings), all newsletters or other information which the Customer subscribes to receive from the Supplier, all software code underlying and forming part of ARCHICAD and any improvements, enhancements, modifications or adaptations to ARCHICAD.

9.3 The Supplier does not claim ownership of any intellectual property rights in relation to the information or content that the Customer may create using ARCHICAD in any form, however (“Customer Data”) the Customer agrees to grant Supplier a non-exclusive, worldwide, sub-licensable, transferable and royalty free license to use, copy, retain, reproduce, distribute or disclose the Customer Data for the Supplier's support services and as otherwise set out in Supplier's and GRAPHISOFT's Privacy Policy from time to time.

9.4 By submitting Customer’s information to Supplier at the Customer Account Portal in connection with its order, Customer consents to such information being processed to fulfill the order and in accordance with Supplier’s Privacy Policy and GRAPHISOFT’s Privacy Policy. Customer acknowledges and agrees that the Supplier may transfer the Customer's billing information (including company name, address and relevant tax details) to GRAPHISOFT for the purposes of performing this Agreement by Supplier or GRAPHISOFT together with the EULA and, while the Customer maintains its ARCHICAD (R) Subscription to use ARCHICAD and during the term of the EULA. GRAPHISOFT may use, process and transfer this information in accordance with its Privacy Policy for the purposes of fulfilling the EULA and this Agreement and for the purposes set forth in GRAPHISOFT' Privacy Policy in particular in case of non-performance by Supplier. Customer agrees to obtain any authorizations required by law to the transferring of any billing information qualifying as personal data to Supplier and by Supplier to GRAPHISOFT.

10. TERMINATION

10.1 On behalf of the Customer, the Contract Manager may terminate the ARCHICAD (R) Subscription at any time up to 24 hours prior to the Billing Date by using the 'Cancel Subscription' function on the Customer Account Portal. Termination will take effect at the end of the current pre-paid period (and the Customer will not be entitled to any refunds for amounts paid in advance).

10.2 If the Customer's EULA is terminated for any reason, then this Agreement will also automatically terminate without any further notice.

10.3 Besides the termination reasons set forth in the EULA, GRAPHISOFT may terminate Customer's EULA (and consequently its ARCHICAD (R) Subscription) at any time by giving the Customer 180 days' notice of termination. In such case this Agreement will also terminate as from the same date without any further notice from Supplier to Customer and without any legal consequences for Supplier or GRAPHISOFT. After the date of termination, You may access any content it has stored in ARCHICAD by using the Demo Mode of ARCHICAD. Demo Mode as described in the EULA will provide possibility for You to access Your Intellectual Property.

10.4 The Supplier may terminate this Agreement: (a) in the case described in clause 10.3 above; or (b) immediately on written notice to the Customer if the Customer breaches any of its obligations under this Agreement and fails to remedy the breach within five days of receiving notice requiring the breach to be remedied.

10.5 On termination of this Agreement: (a) any outstanding amounts due to the Supplier will become immediately due and payable;(b) the Supplier will cease to provide, and the Customer will cease to have any entitlement to, the ARCHICAD (R) Subscription or the Support Services.

11. WARRANTIES AND LIMITATION OF LIABILITY

11.1 The Supplier will give the Customer all reasonable assistance where the ARCHICAD (R) Subscription is not in accordance with Supplier’s warranty. Supplier does not give, and explicitly disclaims any other warranties, whether express or implied, including warranties of fitness for a particular purpose, merchantability and non-infringement to the maximum extent allowed by the applicable rules of law.

11.2 There may be factors beyond the Supplier's control affecting the ultimate success of the use to which the ARCHICAD (R) Subscription and the Support Services are being provided. Consequently, these terms replace all other representations and warranties (statutory, express, written or oral) and all such representations and warranties (except any which cannot lawfully be excluded) are expressly excluded.

11.3 The Supplier will not under any circumstance be liable under the law of tort, contract or otherwise/for any loss of profits, savings or data, inability to use, or for any indirect loss or consequential loss or damages however caused, arising out of or in conjunction with the performance or non-performance of this TOS, in particular the ARCHICAD (R) Subscription and the Support Services.

11.4 The Supplier's liability for any breach of this Agreement relating to supply of the Support Services is limited, at the option of the Supplier, to (a) re-supply of the relevant Support Services; or (b) payment to the Customer of the amount paid by the Customer for the relevant Support Services.

11.5 The Supplier will not be liable for any claim, loss or damage arising from or in connection with the ARCHICAD software, its operation, performance (or non-performance) or claims relating to it. The Customer acknowledges that its rights and responsibilities in respect of the ARCHICAD software are set out in and governed exclusively by the EULA.

11.6 The Supplier's liability for any other breach of this Agreement or otherwise howsoever shall not exceed the total consideration payable to the Supplier by Customer for the particular product and/or service in dispute.

12. LINKS TO OTHER SERVICES, WEBSITES AND APPS

12.1 Customer Account Portal may enable the Customer to access other applications and websites. Even though these applications and websites are accessible through the  Customer Account Portal, they are not owned and controlled by the Supplier. Any links to third party websites are provided for convenience only, and the inclusion of any link does not imply that the Supplier endorses or verifies such websites. The Supplier is not responsible or liable for any loss or damage incurred as a result of the Customer's access to those applications and websites.

12.2 The Customer's use of and access to third party applications and websites will be governed by the terms and conditions and privacy policies governing those applications and websites. When accessing a third party website or application, it is recommended that the Customer reads the third party’s terms and conditions and privacy policy.

13. GENERAL

13.1 Any notices to be given under this Agreement must be in English and sent by email to:
(a) if addressed to the Supplier, to info@simbim.es
(b) if addressed to the Customer, to the email address provided during the account registration process. Notices shall be deemed to be received at the time of sending, unless sent outside Normal Business Hours in which case they shall be deemed to be received at 9:00 am (CET) on the next Business Day.

13.2 The Supplier will not be liable for any delay or failure to perform its obligations if such delay or failure is due to force majeure.

13.3 The Customer may not assign or transfer its rights under this agreement without the prior express consent of the Supplier, not to be unreasonably held. The Supplier may assign or transfer some or all of its rights under this Agreement to GRAPHISOFT or to its direct affiliate at any time. The Customer acknowledges that the Supplier may sub-contract the performance of its obligations under this Agreement without first obtaining Customer consent. You explicitly acknowledge and accept the transfer of this Agreement to GRAPHISOFT or to its direct affiliate by the Supplier any time, in particular if Supplier ceases to be an authorized GRAPHISOFT Distributor for any reason during the initial or renewal Term of this Agreement. In such a case, GRAPHISOFT assures the services contained in sections 2 to 7 above against the payment of the Fees and Additional Charges (if any) by the Customer directly to GRAPHISOFT according to the terms and conditions of this Agreement. By entering into this Agreement You expressly agree and give Your consent that Your Supplier shall transfer Your billing information ( Company Name, Country, City, Zip, State, Address, VAT/TAX ID Number) indicated in this Agreement to GRAPHISOFT and during the term of this Agreement GRAPHISOFT may - in compliance with its Privacy Policy – use, process and transfer this information for the purposes of fulfilling the Agreement and for the purposes set forth in GRAPHISOFT’s Privacy Policy. 

13.4 You accept that Supplier may unilaterally modify any term of this Agreement with or without notice to You. You agree that Supplier shall not be liable to you or anyone else for any negative effect deriving from such modifications. 

13.5 It is the intention of both parties to work in good faith toward the accomplishment of the objectives that form the basis of this Agreement. 

13.6 If any of these terms and conditions is illegal, invalid or unenforceable, the rest of the terms shall remain otherwise in full force apart from such provisions, which shall be deemed deleted.

14. Law and arbitration

The validity, interpretation and performance of these Terms of Service and any dispute connected herewith shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Any disputes arising from these Terms of Service, including those disputes relating to the validity, interpretation or termination of the Agreement, shall be exclusively and finally settled by arbitration to be held in Barcelona, Spain.

If you have any questions regarding these TOS, please info@simbim.es