BIMcloud aaS Terms of service for Educational Use

v1.2 (14/September/2020)

PLEASE READ THESE TERMS OF SERVICE (HEREINAFTER REFERRED TO AS “TOS” OR “AGREEMENT”) CAREFULLY. BY PLACING YOUR ORDER FOR THE BIMCLOUD AAS SUBSCRIPTION, YOU, AS THE CUSTOMER OR THE REPRESENTATIVE OF THE CUSTOMER (DEFINED BELOW), DECLARE TO HAVE READ THE FOLLOWING TERMS OF SERVICE (AS AVAILABLE ON THE SUBSCRIPTION PORTAL), BEFORE THE SUBMISSION OF THE RELATIVE ORDER, AND YOU INDICATE THE ACCEPTANCE OF, AND AGREEMENT TO, THESE TERMS OF SERVICE IN RELATION TO THE BIMCLOUD AS A SERVICE FOR THE CUSTOMER AND ANY AUTHORIZED USERS, IF ANY, 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:

"Billing Date" - the BIMcloud aaS Subscription plan term renewal date.

“BIMcloud aaS” or “BIMcloud as a Service” or “BIMcloud aaS Subscription” - the BIMcloud aaS monthly or annual subscription plan sold to Customer by Service Provider via the Subscription Portal.

“BIMcloud Administrator” – the person appointed by the Contract Manager during the purchase process of BIMcloud aaS Subscription. The BIMcloud Administrator has full access to all BIMcloud controls, can create additional BIMcloud User Accounts on behalf of the Customer and assigns them roles and permissions as appropriate according to the Customer.

“BIMcloud Tenant” – One instance of BIMcloud, dedicated to one Customer;

“BIMcloud User Account” – Created by the BIMcloud Administrator on behalf of the Customer, providing privileges for an individual within the Customer to create and access Content on that Customer's BIMcloud Tenant.

“BIMcloud User License” – License that provides access right to the BIMcloud Tenant for each registered BIMcloud User.

“Business Day” - means a day that is not:

“Content” – any and all information and data uploaded, downloaded, made available or shared in the BIMcloud Tenant by the Customer, its registered Users or Service Provider, including but not limited to ARCHICAD project files, backups, User accounts and settings on a BIMcloud Tenant

“Contract Manager” – the Contract Manager is appointed by the Customer and has full representation right on behalf of the Customer with any and all matters related to the BIMcloud aaS, such as, for example, to accept this TOS, to manage the Subscription, including without limitation, purchase, cancellation, termination, upgrade and downgrade of the Subscription, on the Subscription Portal.

“Customer”, “Yourself”, “Your” or “You”– the person or entity subscribing for the Service and each authorized User accessing the Service on behalf of that person or entity, all of whom are authorized to use the Service solely for his/her/its own purposes and not for any further distribution or resale. For clarities sake Customer includes any third parties engaged by Customer accessing the Service on behalf of the person or entity named as Customer;

"Fees" - the non-refundable amounts payable by the Customer to the Service Provider in consideration of the BIMcloud aas Subscription, as set out on the Subscription Portal.

"GRAPHISOFT" - GRAPHISOFT SE, Budapest, Hungary (registered address: Záhony utca 7, Graphisoft Park, Budapest H-1031, Hungary), manufacturer of the ARCHICAD and BIMcloud software.

“Hong Kong” - Hong Kong Special Administrative Region of the People's Republic of China.

"Normal Business Hours" – mean the Local Partner’s availability who provides Support Services to the Customer while in case of payment and other Subscription Portal support related matters the Normal Business Hours mean 9 am to 5 pm Hong Kong time on Business Days.

“Reactivation” – changing the status of the Service that has been cancelled or terminated into active status during the Cancellation Period. During the reactivation process, the number of authorized Users shall be reinstated as is determined by the Customer in the reactivation process. Unless the number of authorized Users is expressly determined in the reactivation process the number of authorized Users which was administered by the Subscription Portal prior to the cancellation shall be reactivated and the subscription Fees shall be based on that number. The reactivation fee connected to the reactivation is indicated on the Subscription Portal.

“Service” – BIMcloud as a Service, being the hosted collaboration tool licensed by GRAPHISOFT.

"Service Provider" - GRAPHISOFT Asia Limited, a company limited by shares incorporated in Hong Kong with Companies Registry number 0529802 and registered office at Admiralty Centre Tower 2 / Level 11, 18 Harcourt Road, Admiralty, Hong Kong; bank account number HSBC Bank 848-133807-838.

“Subscription Portal” - the online purchasing system where Customers are able to purchase BIMcloud Subscription from Service Provider according to the terms and conditions of the current TOS.

"Support Services" - the support services described in clause 7.

“TOS” – this BIMcloud as a Service Terms of Service.

“User” – an individual end-user who is authorized by the BIMcloud Administrator to have access to the BIMcloud Tenant, and “Users” shall be construed accordingly.

2. SUBJECT OF THESE TOS

2.1 Service Provider makes – by involving in particular GRAPHISOFT as its platform provider - the BIMcloud aaS, including all information, Content and service available to the Customer subject to the terms and conditions set forth in this TOS.

2.2 These TOS are to be applied together with other legal documents such as GRAPHISOFT's Privacy Policy, the related End User License Agreements available at GRAPHISOFT’s Legal Site, and the Service Provider’s Privacy Policy Statement (“PPS”) and Personal Information Collection Statement (“PICS”)] indicated in section 19 bellow.

2.3 By utilizing the Service in any way (at the first time or at each renewal), with or without registration, including but not limited to accessing the Service's website(s), uploading, sharing and downloading Content in the Service or any other activity involving any component of the Service, You accept these terms and conditions as a binding agreement between You and Service Provider concerning Your use of the Service. Service Provider may unilaterally revise this TOS, GRAPHISOFT’s Privacy Policy, [the Service Provider’s PPS and PICS] and all other legal documents governing the use of the Service at any time without notice. You are responsible for regularly reviewing these terms and conditions. Continued use of the Service following any such changes shall constitute Your acceptance of such changes.

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

3. TERM OF THE AGREEMENT

3.1 The term for the BIMcloud aaS Subscription (“Term”) is a one month-period (in case of a monthly subscription) or a one year-period (in case of an annual subscription) starting from the date of payment of the Fees charged and paid by You as set forth in this TOS and on the Subscription Portal. In case of the addition of a new User to an existing BIMcloud aaS Subscription, the initial Term for the new User may be shorter in order to harmonize the billing dates for the new User with the billing date of the original BIMcloud aaS Subscription.

3.2 Each BIMcloud aaS Subscription automatically renews at the end of each Term for a renewal Term of the same length, subject to Customer's timely payment of the Fees, until change of the length of Term by Customer in accordance with clause 10, or until terminated by either Customer or Service Provider in accordance with clauses 15.1 to 15.5. Parties expressly agree that any additional Subscriptions purchased by the Customer shall be governed by this Agreement without further express acceptance thereof.

3.3 You or the Contract Manager shall receive an e-mail, as confirmation of the occurred BIMcloud aaS Subscription, including a sum-up of the order, the paid Fees, the Terms, the applicable ToS and thorough instructions that, step by step, shall explain you how to use the BIMcloud aaS Subscription.

4. USE OF THE SERVICE

4.1 In order to be able to use the Service You need to have at least one valid BIMcloud User Account with an email address and password. Access and use of the Service and any Content, including viewing, uploading and downloading of Content, available in the Service shall be subject to this TOS.

4.2 Service Provider hereby grants You a non-exclusive, revocable and limited right to use the Service and access the Content on Your BIMcloud Tenant that is not owned by the Customer (such as for example GRAPHISOFT's Content) solely for the purposes of using the Service in accordance with these TOS and additional terms applicable to such Content, if any, for Your business or personal use only.

4.3 By accepting this TOS You expressly accept that use of the Service is subject to Fees and other charges as notified by Service Provider from time to time.

4.4 You represent and warrant that You are of legal age and You have full capacity to form a binding contract and are not a person barred from receiving services under the laws of Your country. Upon registering for the Service, and during the full term of Your registration, You agree to provide and maintain true, accurate, current and complete information about Yourself. If Service Provider has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Service Provider has the right to suspend or terminate Your BIMcloud aaS Subscription, Contract Manager account or BIMcloud User Account, as the case may be, and refuse any and all current or future use of the Service and Your BIMcloud Tenant.

4.5 The intended exclusive purpose (fair use) of the Service is design collaboration on ARCHICAD project files. Service Provider may set forth other specifications with regards to the fair use of the Service (such as for example the maximum uploaded (stored) per BIMcloud User license, i.e. GB/BIMcloud User license) that shall be complied by the Customer. The use of the Service for any other purposes than the intended purpose, and/or non-compliance with the specifications set by Service Provider, shall constitute a breach of this TOS by You, in which case Service Provider has the right to terminate Your BIMcloud aaS Subscription, remove any Content, and cancel the BIMcloud Tenant and/or BIMcloud User Accounts without prior written notification or – in Service Provider's discretion - may offer an individual Service level and pricing to the Customer to accommodate different usage requirements.

4.6 You agree that Service Provider is entitled to remove any Content You upload to Your BIMcloud Tenant without notification or without Your prior approval. In such case, Service Provider shall have no responsibility of any kind and You are not entitled to any indemnification for and in connection with any infringing use, unlawful use, Content or comment published to Your BIMcloud Tenant or otherwise in the Service.

4.7 You accept that Your registration according to the terms set forth herein is required to use the Service.

4.8 You accept that Service Provider, as part of the development of the Service and otherwise, shall have the right, in their sole discretion, and at any time

(i) to add new features,

(ii) add new third-party software components or

(iii) to modify or discontinue certain feature(s) of the Service. Your continuous use of the Service qualifies as acceptance of such modifications.

4.9 You are solely responsible to ensure adequate internet connection and hardware, software infrastructure necessary to the proper operation of the Service. You also accept that neither Service Provider nor GRAPHISOFT is able to guarantee that the Service is available and operating uninterrupted from any and all locations and jurisdictions due to technical and legal reasons.

4.10. Customer is entitled to provide access to Customer’s employees and performance assistants (such as for example subcontractors) to the use of Service, in which case Customer bears full liability for the use of its employees and performance assistants being in full compliance with these TOS.

4.11. Service Provider may unilaterally decide to offer to You special terms and conditions concerning the Service. Service Provider shall indicate all relevant information related to these special terms and conditions such as in particular eligibility, validity term, the manner of acceptance, etc. on the Subscription Portal. It is Your risk and responsibility to check and fully comply with these special terms and conditions in order to benefit therefrom. Unless otherwise communicated by Service Provider You are eligible only one time to a particular special term.

5. BIMCLOUD USER ACCOUNTS

5.1 At the commencement of each BIMcloud aaS Subscription, Service Provider provides the Customer with a BIMcloud Tenant and a BIMcloud User Account dedicated for the BIMcloud Administrator for the performance of the BIMcloud Administrator’s competences defined herein. Further BIMcloud User Accounts may be registered by the BIMcloud Administrator. It is the Customer's sole discretion to allow its BIMcloud Administrator to register Users with their own BIMcloud User Accounts.

5.2 The Customer shall be authorized to create as many BIMcloud User Accounts on its BIMcloud Tenant for as many User licenses as the Customer purchased during the ordering process, or as upgraded or downgraded by Customer. The Customer may order additional User licenses anytime, and may decrease the number of User licenses as of the end of the then current term of the Service.

5.3 Users holding a BIMcloud User Account to the BIMcloud Tenant are entitled to upload and view the Content available on the BIMcloud Tenant. The Customer may provide Users with different types of access to the BIMcloud Tenant.

5.4 To create a BIMcloud User Account, the Users need to submit their real name and a valid email address. Registered Users may not impersonate any person or entity, or falsely state or otherwise misrepresent their affiliation with a person or entity, including, but not limited to,

(i) an administrator, moderator, or in any way other genuine Users of the Service,

(ii) officer, agent, or employee of a Partner of Service Provider or GRAPHISOFT or any of their respective subsidiaries or affiliates.

5.5 The Customer and its Users are solely liable for maintaining the confidentiality of their BIMcloud User Accounts and related passwords. The Users and the Customer remain fully liable for any access and use of the BIMcloud User Accounts registered on the BIMcloud Tenant, whether the access have been authorized or not. It is the Users' and the Customer's responsibility to take adequate precautions in respect of the BIMcloud User Accounts and related password, and to immediately notify Service Provider of any loss or unauthorized disclosure or use of any BIMcloud User Account and related password.

6. CANCELLATION / REACTIVATION

6.1 On behalf of the Customer, the Contract Manager may terminate the BIMcloud aaS Subscription at any time up to 24 hours prior to the Billing Date by using the 'Cancel Subscription' function on the Subscription 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) under the condition that the Contract Manager fills in and submits to GRAPHISOFT the “Cancelation Survey”. Submitting the Cancellation Survey is mandatory, however, if the Customer consents to be contacted by GRAPHISOFT and/or its Local Partners in response to the answers provided in the survey, then the data in the Cancellation Survey qualify as personal data and processed based on the Customer’s consent under GRAPHISOFT’s Privacy Policy and/or the Service Provider’s PPS and PICS. If consent is not given, then the survey is anonymous.

6.2 Starting as of the first day the cancellation takes effect the Service runs in a limited operation mode for additional 2 (two) weeks (“Cancellation Period”). During the Cancellation Period, the Customer is able to access the BIMcloud Tenant but the Service cannot be used by any individual Users on behalf of the Customer, other than the Customer's primary BIMcloud Administrator, who will continue to have access to the Service exclusively for Content export purposes.

6.3 During the Cancellation Period, the Contract Manager may reactivate the Service on behalf of the Customer. The Customer's Contract Manager shall receive a notification each 7 (seven) days and 1 (one) day prior to the end of the Cancellation Period about the possibility of reactivation and the effects of the Service cancellation. The reactivation shall take place after the reactivation fee, as provided for in the Subscription Portal, is processed successfully. The starting date of the reactivated Service shall be the reactivation date indicated on the Subscription Portal and the Service term shall be one month or one year period of time respectively. In case of reactivated Service associated with other Subscription(s) the Term of the Service shall be synchronized with the existing Subscription(s).

6.4 If reactivation is not ordered on before 11:59 (AM) Hong Kong time of the last day of the Cancellation Period, all BIMcloud User Accounts and the BIMcloud Tenant and all stored Customer Content will be deleted.

7. SUPPORT SERVICES

7.1 The Service Provider will provide the Customer with the following Support Services while the Customer maintains its BIMcloud aaS Subscription:

- telephone and e-mail 1st tier support during Normal Business Hours. The aim of the 1st tier support is to receive direct reports from the Customer, offer possible troubleshooting procedure(s) to the Customer to resolve the issue or narrow it down to specific area, identify whether the issue is related to ARCHICAD, the network or BIMcloud aaS and submit support ticket to 2nd tier support if required;

- offering discounted Service-related training, seminars as the Service Provider may provide from time to time.

8. SUPPORT AVAILABILITY

8.1 The Service Provider shall provide the Support Services through the GRAPHISOFT local partners operating in Customer’s country (“GRAPHISOFT Local Partners”) engaged by Service provider as its agent and only during Normal Business Hours. By accepting this TOS the Customer accepts the transfer of its data to the GRAPHISOFT Local Partners for the purposes of providing the Support Services.

8.2 The Service Provider 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.

9. FEES

9.1 The Customer shall pay the Fees to the Service Provider for each Term non-refundable basis in advance of each Term it wishes to maintain a BIMcloud aaS Subscription. In the case of an existing BIMcloud aaS Subscription, if Customer adds additional Users during the Term, the Fees for those additional Users shall be calculated on a pro-rata basis for the remaining term of the Customer's existing BIMcloud aaS Subscriptions. 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 Service Provider will attempt to take payment again three (3) days later. After 2 (two) failed due payments the active status of the BIMcloud aaS Subscription shall be changed automatically to cancelled status and the Cancellation Period starts on the day of change of the status. The Service Provider shall send to the Customer's Contract Manager, on the status change date, a notification about the limited access to the BIMcloud Tenant and the limited operation mode of the Service. Reactivation from cancelled status to active status may take place according to the Reactivation process described in clause 6.

9.2 Fees indicated on the Subscription Portal exclude taxes which will be automatically added by the Subscription Portal (where applicable) at the applicable current rates. The Customer is responsible for the timely payment of any taxes, levies or other similar payments required in its jurisdiction, and Customer indemnifies and holds Service Provider and GRAPHISOFT harmless against any claims by any tax authorities for any underpayment or any tax or levy, and any penalties and/or interest.

9.3 Fees are subject to change at any time by Service Provider; however, the Service Provider will give the Customer 90 days' advance notice of any fee changes (which are not related to special terms and conditions offered according to clause 4.11 above) by email communication. Any change of the Fees will apply to renewal and future BIMcloud aaS Subscription only. The Service Provider will not be liable to the Customer or any third party for any changes to Fees.

10. TERM CHANGE

10.1 The Customer may change the length of its BIMcloud aaS Subscription Term (either one month or one year) at any time by following the steps on the Subscription Portal. The term change will become effective at the end of the then current term. The Customer shall not receive a refund if changing an annual term to a monthly term.

11. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT

11.1 You are entitled to upload to Your BIMcloud Tenant only Content that is either Your own intellectual property or for which You have an appropriate valid license from the copyright owner to upload it to Your BIMcloud Tenant according to this TOS. You shall bear full liability for any and all Content uploaded by You. If Service Provider or GRAPHISOFT has reasonable grounds to suspect that any Content uploaded by You may infringe copyright or other applicable laws, Service Provider or GRAPHISOFT may remove it without Your consent and without prior notice. Service Provider or GRAPHISOFT may also terminate the BIMcloud User Accounts of Users with repeat infringements.

11.2 By accepting this TOS You accept that Service Provider and GRAPHISOFT are entitled to access and analyze any Content for the purposes of improving the Service and troubleshoot errors in the Service.

11.3 All works, materials, ideas created by Customer and uploaded in course of the use of the Service are and will remain the intellectual property of the Customer. You retain full ownership of all intellectual property rights that You have to the Content You upload to Your BIMcloud Tenant, subject to the rights granted to Service Provider and GRAPHISOFT pursuant to this TOS. Access to and sharing of Your Content and Your personal information remains at all times in Your control as enabled by the Service from time to time. You hereby declare that You hold all those rights and authorizations regarding Your Content which You upload to Your BIMcloud Tenant. If You believe that Your Content has been copied in a way that constitutes copyright infringement, or Your intellectual property rights or personal information have been otherwise violated, please report it to Service Provider without delay. Your report should include Your statement that

(i) You have a good faith belief that the use of the Content is not authorized by the copyright owner;

(ii) You are the copyright or intellectual property owner, or You are authorized to act on the copyright or intellectual property owner's behalf.

(iii) In the event of removal of Content in these circumstances, Service Provider and GRAPHISOFT shall have no responsibility of any kind and You are not entitled to any indemnification.

11.4 You acknowledge that You do not have the right to use, reproduce, create derivative works of, distribute, publicly perform and publicly display Content submitted by other Users of the Service, except as permitted by the owner of such Content.

11.5 You are prohibited from copying any personal data (such as for example personal name and e-mail address) from or using any personal data made available through the Service.

12. GENERAL LIMITS AND PRACTICES

12.1 You are expressly prohibited from decompiling, disassembling, reverse engineering, or reducing the Service or any components thereof for any purpose whatsoever.

12.2 You may not unlock or otherwise attempt to discover the source code or underlying algorithms of the software operating the Service or attempt to do any of the foregoing in relation to the object code of the Service.

12.3 You may not use the Service for development, compilation, debugging and similar design-time purposes.

12.4 You are expressly prohibited from adapting, modifying, translating or creating any derivative works based in whole or in part of the Service or the related software, and from merging the software operating the Service into any other software.

12.5 You may not copy any materials accompanying the Service.

12.6 You are expressly prohibited from dividing or reselling Your right to use the Service or the license related thereto and reselling part(s) of it.

12.7 You may use all elements of the Service or any Content as integral components thereof exclusively for the purposes of performing the functionalities of the Service set forth by Service Provider.

12.8 You are expressly prohibited from providing 'Software as a Service' (e.g., 'BIMcloud as a Service') for third parties or other similar services which involve the reassignment of Your rights granted herein to third parties e.g., remarketing, reselling services or cloud services.

12.9 You are prohibited from circumventing or supplying a system in order to circumvent the protection methods of the Service and using the Service in any other unauthorized manner.

12.10 You expressly acknowledge that the breach of any provisions of this clause 12 constitutes a breach of this Agreement giving the right to Service Provider to immediately terminate this Agreement, and Service Provider will take the necessary measures in order that the breach be terminated and to enforce Your compliance with the above provisions. In addition, Service Provider shall be entitled to enforce payment for its damages as well as other rights and claims under the governing laws in force resulting from Your breach of this Agreement.

12.11 You acknowledge that Service Provider makes all best economically reasonable efforts to provide the Service to You on professional level but cannot undertake any service levels. Service Provider will use its best efforts to take all actions and to do all things necessary, proper, or advisable to consummate, make effective, and comply with all of the terms of this TOS but there may be instances when the Service cannot be provided in uninterrupted manner. In particular there may be maintenance activities scheduled in advance or necessary to be carried out on emergency basis. Service Provider makes all efforts to notify you on any and all pre-scheduled maintenance works affecting or limiting the Service.

12.12. You acknowledge that Service Provider may establish general practices and limits concerning the use of the Service, including but not limited to the maximum number of project files uploaded (in total and/or in a time frame), the maximum size of project files uploaded, maximum size of storage size allotted to one Customer, the maximum number of times, and the maximum duration for which You can access the Service in a given period of time. Service Provider makes all reasonable efforts to ensure the continuous availability of the Service, but interruptions may occur due to scheduled maintenance or for other reasons. You agree that Service Provider and GRAPHISOFT have no responsibility or liability for the interruption of the Service and any loss of Your Content. You acknowledge that Service Provider or GRAPHISOFT may cancel the Service if it infringes any practices and limits established by Service Provider or GRAPHISOFT. You further acknowledge that Service Provider reserves the right to modify these general limits and practices at any time.

12.13 In order to avoid any loss of data and ensure data security, Service Provider and GRAPHISOFT strongly recommend creating daily, offline backups of Your Content.

12.14 You explicitly acknowledge and accept the transfer of this Agreement from Service Provider to GRAPHISOFT or to its direct affiliate by GRAPHISOFT any time. The details of the transfer and the revised terms and conditions will be communicated to You in a transfer notice either by Service Provider or GRAPHISOFT. You also explicitly acknowledge and agree that notwithstanding the terms and conditions of this Agreement, GRAPHISOFT or the third party appointed by it shall be entitled to unilaterally amend either the scope of services provided under this Agreement, or any other material term thereof (for example you have to re-register your credit card at the new Service Provider’s place of establishment).

13. CONTENT STORAGE

13.1 Service Provider operates the Service by involving third party subcontractors located worldwide, which You hereby approve. Third party subcontractors may be involved in the operation of the servers where Your Content is stored, as a result of which these third parties may have access to Your Content. In particular Service Provider and GRAPHISOFT make best efforts to operate data centers and place the Customer’s BIMcloud Tenant in the data center located nearest to the Customer’s shipping country. For instance BIMcloud as a Service processes the data (project, management and personal data) of German and Austrian customers on our cloud provider’s – Google Inc. - infrastructure in the European Union based on the signed data processing agreement with this provider. U.S. based Customers’ data is stored in the United States.

Service Provider is committed to the protection and the security of our Customers’ data. We ensure that You are in control of your data. It is of outmost importance for us to follow the applicable legal rules and best practices at all times. We are working hard to ensure that Service Provider shall be GDPR compliant by continuously revising our internal processes ensuring that users can exercise their privacy rights.

The information we collect and maintain is to serve You and to provide you the best user experience.

Even though Service Provider has access to customer’s data, but uses them only when the customer explicitly approves it during technical support cases.

14. DISCLAIMER

14.1 Except where expressly provided otherwise in a written agreement between You and Service Provider, to the extent permitted by the applicable law all content, materials, information, software, products and service provided to You through the Service, are provided on an "as is" basis and without warranties of any kind, either express or implied, including, but not limited to, the implied warranties of accuracy, reliability, merchantability, fitness for a particular purpose and non-infringement of third parties' rights. Service Provider and GRAPHISOFT makes no warranty (i) that the Service will meet Your requirements and that the Service will be available on an uninterrupted, timely, secure, or error-free basis; (ii) that defects will be corrected; (iii) that the Service is free of viruses or other harmful components; (iv) that the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your expectations.

14.2 Any content, materials, information or software downloaded or otherwise obtained through Your use of the Service is done exclusively at Your own discretion and risk. Service Provider and GRAPHISOFT, with the exception of liability due to gross negligence and willful acts, shall have no responsibility for any damage to Your computer system or loss of data that results from the download of any content, materials, information or software.

14.3 Service Provider and GRAPHISOFT may unilaterally make changes or updates to the Service, discontinue it temporarily or permanently, modify any terms of this TOS at any time with or without notice. You agree that Service Provider and GRAPHISOFT shall not be liable for any modification or suspension of the Service and not be liable to You or anyone else for any negative effect deriving from such measures. The continuous use of the Service qualifies as Your acceptance of these measures and modifications.

15. TERMINATION

15.1 The Contract Manager may terminate the BIMcloud aaS Subscription on behalf of the Customer at any time up to 24 hours prior to the Billing Date by using the 'Cancel Subscription' function on the Subscription 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).

15.2 The Service Provider may terminate this Agreement immediately on written notice to the Customer if the Customer breaches any of the following obligations under this Agreement and fails to remedy the breach within five days of receiving notice requiring the breach to be remedied:

(i) clause 4.4 (false information);

(ii) clause 4.5 (unfair use);

(iii) clause 9.1 (payment of Fees);

(iv) clause 12 (General Limits and Practices);

(v) clause 18 (Intellectual Propriety);

(vi) clause 21.3 (Assignment).

15.3 The Service Provider is entitled to immediately terminate this Agreement upon:

(i) any request by a law enforcement agency, regulator or government authority to pause, cease or terminate any service to be provided by the Service Provider and/or GRAPHISOFT under this Agreement; or

(ii) the Service is no longer offered by GRAPHISOFT.

15.4 In the event of termination under this clause 15, Service Provider or GRAPHISOFT shall not be liable to you for any loss or damage and You are not entitled to any indemnification in relation to such termination. In case of termination of this Agreement for any reason, the Service Provider and GRAPHISOFT will cease to store Your Content starting from the date of termination and the Service Provider and GRAPHISOFT shall delete all Your Contents. You agree not to hold the Service Provider and/or GRAPHISOFT liable for loss or damages resulting from such deletion of Your Content.

15.5 On termination of this Agreement:

(i) any outstanding amounts due to the Service Provider will become immediately due and payable; and

(ii) the Service Provider will cease to provide, and the Customer will cease to have any entitlement to, the BIMcloud aaS Subscription or the Support Services.

16. LIMITATION OF LIABILITY

16.1 The Service Provider will give the Customer all reasonable assistance as provided in clause 7.

16.2 Except for:

(i) death or personal injury caused by our negligent acts or omissions (or those of any of our employees or agents);

(ii) fraud or fraudulent misrepresentation; or

(iii) breach of any of the provisions implied into this Agreement under Supply of Services (Implied Terms) Ordinance (Cap 457) (or any other law),

the Service Provider and GRAPHISOFT will only be legally responsible to You for any loss or damage which is a reasonably foreseeable consequence of a breach of this Agreement. Losses are foreseeable where they could be contemplated by You, the Service Provider and GRAPHISOFT at the time this Agreement is entered into. The Service Provider and GRAPHISOFT are not legally responsible for indirect losses which happen as a side effect of the main loss or damage and which are not foreseeable by You, the Service Provider and GRAPHISOFT (such as loss of profits or loss of opportunity).

16.3 To the extent permitted by the applicable law, the Service Provider's liability arising from this Agreement is limited, at the option of the Service Provider, to

(i) re-supply of the relevant Support Services; or

(ii) payment to the Customer not exceeding the total consideration paid by the Customer specifically for the relevant Support Services.

17. INDEMNITY

17.1 As a condition of use of the Service, You agree to indemnify Service Provider and GRAPHISOFT, and their directors, officers, employees, agents and suppliers from and against any and all liabilities, expenses (including legal fees) and damages arising out of claims resulting from Your use of the Service, including without limitation any claims alleging facts that if true would constitute a breach by You of these TOS.

18. INTELLECTUAL PROPERTY, TRADEMARK INFORMATION

18.1 The trademarks and other intellectual property owned by GRAPHISOFT and Service Provider and by third parties made available through the Service are protected by applicable laws. To the maximum extent permitted by applicable laws, the Service Provider, GRAPHISOFT and other intellectual property owners reserve all rights to their trademark/intellectual property not expressly granted hereunder. If You copy or use all or any portion of the trademarks/intellectual property available through the Service in non-compliance with any of the terms of this TOS, any applicable End User License Agreement or any other terms and conditions of Service Provider or GRAPHISOFT, You are violating trademark or other intellectual property law, and You may be liable to Service Provider, GRAPHISOFT and other intellectual property owners for damages.

18.2 GRAPHISOFT, ARCHICAD, BIMcloud, and BIMx are trademarks of GRAPHISOFT (Záhony u. 7., H-1031 Budapest, Hungary). All rights reserved worldwide. Unless otherwise specified, the following notice applies to all Contents of this website: Copyright © 2018 GRAPHISOFT SE. Záhony u. 7., H-1031 Budapest, Hungary. All rights reserved worldwide.

19. PERSONAL INFORMATION

By entering into this Agreement you accept that your personal data will be processed during the term of the Agreement in the following manner:

20. LINKS TO OTHER SERVICES, WEBSITES AND APPS

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

20.2 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.

21. GENERAL

21.1 Any notices to be given under this Agreement must be in English and sent by email to:

- if addressed to the Service Provider, to mail@graphisoft.hk.

- if addressed to the Customer, to the email address provided during the account registration process or amended in its User Account BIMcloud.

21.2 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 Hong Kong time on the next Business Day.

21.3 The Customer may not assign or transfer its rights under this agreement without the prior express consent of the Service Provider. The Customer acknowledges that the Service Provider may assign this Agreement and/or sub-contract the performance of its obligations under this Agreement without first obtaining Customer consent.

21.4 You accept that Service Provider 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.

21.5 If any term of this Agreement 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.

22. FORCE MAJEURE

22.1 Service Provider and its partners involved in the provision of the Service (in particular but not limited to GRAPHISOFT) are not liable to You or to any other person for failure to perform or any delay in the performance of the Service due to any force majeure event, such as for example, natural disaster, acts of God, actions of any government agency, riot, strike, explosion, fire, flood, interruption of transportation, acts of war, terrorism, labor disputes or the stability or availability of the Internet or a portion thereof.

23. LAW AND JURISDICTION

23.1 This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. The courts of Hong Kong shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this Agreement (including non-contractual disputes or claims).

23.2 If You have any questions regarding these TOS, please address Service Provider at mail@graphisoft.hk.

Addendum to BIMcloud as a Service Terms of Service For Academic Use

The BIMcloud as a Service Terms of Service (“TOS”) shall be applied together with the following Addendum:

1. Definitions

“Educational Use” means the use of the BIMcloud aaS by an Educational Customer exclusively for teaching, educational or academic purposes without any commercial purpose.

„Educational Customer” means a Customer who is either a (i) duly certified enrolled student of an educational/academic institution (“Student”); or (ii) a duly certified teacher at an educational institution (“Teacher”); or (iii) a duly certified educational institution (“Institution”).

2. Special Provisions applicable to the Educational Use 2.1. Educational Use is available exclusively for Educational Customers. Upon request the Educational Customer must certify its eligibility as requested by the Service Provider.

2.2. Educational Use is provided free of charge with limited functionality determined from time to time by the Service Provider. Limited functionality means in particular that

2.3. Educational Use is provided for a limited period of time of one semester of the Educational Customer but maximum for 6 months from the registration of Educational Use by the Institution on behalf of the Educational Customer at the Service Provider (“Initial Term”). In case of prolongation by the Institution made at the Serivce Provider at least 30 (thirty) days prior to the end of the first 6 months the term renews for one single additional 6 months time period (“Renewal Term”). On the last day of the Initial Term in lack of renewal or on the last day of the Renewal Term the Educational Use automatically terminates and the Educational Customer will have to purchase BIMcloud aaS in order to remain eligible to the use of the Service. Next renewal is possible minimum after 5 (five) years after the automatic termination of the Educational Use.

2.4. The Institution is exclusively authorized on behalf of the Educational Customer to determine and distribute the usage profiles for Students and Teachers within the Educational Customer’s organization and to renew the Initial Term of the Service.

2.5. Service Provider hosts and operates the servers where the Educational Use is made available.

2.6. The Institution is obliged to send on behalf of the Educational Customer monthly reports on the use of the Service by the Educational Customer. The report must contain the elements determined by the Service Provider at this link and must be appropriate for the creation of a case study. The Institution ensures that the report submitted shall not contain personal data.

3. This Addendum forms inseparable part of the BIMcloud as a Service Terms of Service and can be modified any time by the Service Provider. Any matters not regulated in this Addendum shall be governed by the provisions of the BIMcloud as a Service Terms of Service.